Jacoby v. Thomas et al (INMATE 2)
Filing
86
OPINION AND ORDER: This case is now before the court on remand from the Eleventh Circuit Court of Appeals for two determinations as further set out in the opinion and order. Pursuant to the directive of the Eleventh Circuit Court of Appeals remand ing this case to this court to make two recommendations, it is ORDERED that: (1) It is declared, as set forth in the courts order of 2/27/2019 (doc. no. 74 ), that plaintiff Brent Jacoby did not file a prior, timely notice of appeal. (2) It is also declared that plaintiff Jacoby merits reopening of the appeal period under Federal Rule of Appellate Procedure 4(a)(6). (3) Plaintiff Jacobys notice of appeal (doc. no. 67 ) is treated as a motion to reopen the time for filing a notice of appeal and said motion is granted. It is further ORDERED that plaintiff Jacobys Motion to Reconsider Dismissing 42 USC 1983 for not Filing Documents in a Timely Manner (doc. no. 73 ) is denied as moot. The clerk of court is DIRECTED to return this case, as supplemented, to the Eleventh Circuit Court of Appeals for further proceedings. Signed by Honorable Judge Myron H. Thompson on 7/17/2019. Furnished Appeals Clerk.(dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BRENT JACOBY,
Plaintiff,
v.
COMMISSIONER THOMAS,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO.
2:15cv367-MHT
(WO)
OPINION AND ORDER
This case is now before the court on remand from
the
Eleventh
Circuit
Court
of
Appeals
for
two
determinations as set forth below.
I.
This court entered a judgment granting defendants’
motion for summary judgment on August 29, 2018.
See
Jacoby v. Thomas, No. 2:15cv367-MHT, 2018 WL 4119998
(M.D. Ala. Aug. 29, 2018) (Thompson, J.).
Pursuant to
Federal Rule of Appellate Procedure 4(a), Jacoby was
1
required to file a notice of appeal within 30 days of
entry of the judgment.
His 30 days ran on September
28, 2018.
Jacoby
2018.1
filed
a
notice
of
appeal
on
October
20,
In the notice of appeal, he complained that his
mail had been “two and three weeks” late getting to him
“constantly for over two months.”
Notice of Appeal
(doc. no. 67) at 1.
In
Sanders
v.
United
States,
113
F.3d
184,
187
(11th Cir. 1997), the Eleventh Circuit held that, “when
a pro se appellant alleges
that he did not receive
notice of the entry of the judgment or order from which
he seeks to appeal within twenty-one days of its entry,
we must treat his notice as a Rule 4(a)(6) motion and
remand to the district court for a determination of
1.
Under the “mailbox rule,” the court deems the
notice of appeal filed on the date Jacoby delivered it
to the prison authorities for mailing. See United
States v. Hughes, 432 F. Supp. 2d 1250, 1251 n.1 (M.D.
Ala. 2006) (Thompson, J.). The notice was sent with a
cover letter dated October 19, 2018, but he signed the
notice of appeal on October 20.
The court concludes
that October 20 was the day he delivered the letter for
mailing.
2
whether the appellant merits an extension under that
rule.”
In
accordance
with
Sanders,
on
January
11,
2019, the Eleventh Circuit remanded this action to this
court
“for
the
limited
purpose
of
determining:
(1)
whether Appellant Brent Jacoby filed a prior, timely
notice of appeal, and (2) if not, whether he merits
reopening of the appeal period under Federal Rule of
Appellate
Procedure
4(a)(6).”
11th
Circuit
Remand
Order (doc. no. 72).
II.
As to the first question,
this court previously
determined that Jacoby did not file a prior, timely
notice of appeal as to the judgment he now seeks to
overturn.
See
Jacoby
v.
Thomas,
No.
2:15cv367-MHT,
2019 WL 952570 (M.D. Ala. Feb. 27, 2019) (Thompson,
J.).
3
III.
The court now must determine the second question:
whether reopening of the appeal period under Federal
Rule of Appellate Procedure 4(a)(6) is merited.
Rule 4(a)(6) allows the district court to “reopen
the time to file an appeal for a period of 14 days
after the date when its order to reopen is entered,”
but only if the court makes certain findings.
court must find that: (A)
The
the moving party did not
receive notice under Federal Rule of Civil Procedure
77(d)2 of the entry of the judgment within 21 days after
entry; (B) the motion to reopen the time for filing is
filed within 180 days after the entry of judgment or 14
days after the moving party receives notice under Rule
77(d) of the entry, whichever is earlier; and (C) no
party would be prejudiced by reopening the time to file
2. Rule 77(d) requires the clerk, immediately after
entering an order or judgment, to “serve notice of the
entry, as provided in Rule 5(b), on each party who is
not in default for failing to appear.
The clerk must
record the service on the docket.”
4
an appeal.
See Fed. R. App. P. 4(a)(6).
Even if all
three conditions are met, “the district court may, in
its discretion, deny a motion to reopen.”
Watkins v.
Plantation Police Dep’t, 733 F. App’x 991, 995 (11th
Cir. 2018).
“The burden of proving non-receipt (or in
this case, delayed receipt) of notice is on the party
seeking
to
4(a)(6).”
reopen
the
time
for
appeal
under
Rule
McDaniel v. Moore, 292 F.3d 1304, 1307 (11th
Cir. 2002).
The application of the rule turns on when Jacoby
received the judgment.
While Jacoby has been unable to
present documentation of the exact date on which he
received the judgment, the court concludes based on the
evidence in the record that he received the judgment on
October 10, 2018, at the earliest.
Jacoby has submitted to the court a log of his
incoming
mail,
provided
by
prison
authorities,
that
appears to show that the clerk of this court mailed him
three envelopes that were postmarked August 29, 2018,
5
and that these letters were received in the prison’s
mailroom
on
September
7,
2018.
See
Attachment
to
Motion for a Continuance to Obtain More Records (doc.
no. 82-1) at 4.
The judgment in this case was entered
on that day, so it appears that one of these letters
was the judgment.
Jacoby also submitted a declaration under penalty
of perjury attesting that the delivery of his legal
mail had been repeatedly delayed for about two to three
weeks
after
receipt
by
the
prison
mailroom.
See
Declaration of Brent Jacoby (doc. no. 83-1) at 1-2.
He
also attests that the prison is “out of control, very
understaffed,
and
stays
on
lock
down.”
Id.
at
2.
Jacoby also submitted the declaration of Dennis Bishop
III, a fellow prisoner in his unit, who attests that he
has experienced a delay of
legal
Dennis
mail
from
Bishop
his
III
over 21 days to receive
attorney.
(doc.
no.
See
83-1).
Declaration
While
of
the
declaration is not a model of clarity, Bishop explains
6
how the process for distribution of prison mail at Bibb
Correctional
Facility
receipt of mail.
leads
to
serious
delays
in
First, after legal mail has been
received by the mail room, a prisoner’s name must be
placed on a newsletter, and this takes at least a week
in
his
experience.
Even
after
placement
of
the
prisoner’s name in the newsletter, there may be a delay
before staff call prisoners out of the housing unit to
pick up their mail.
Mail distribution occurs at the
administration office at random times of the day or
night, and prisoners frequently have difficulty making
it there from the housing unit before it ends because
two separate gates must be opened for them by staff in
order
to
reach
the
administration
area,
and
prison
staff often delay opening the gates.
Jacoby has repeatedly asked the court to order the
warden
of
Bibb
Correctional
Facility
to
turn
over
copies of a handwritten log book that Jacoby and the
officer distributing mail must sign and date when he
7
receives his mail.
This log is, according to Jacoby,
the only document that would show the exact date on
which
he
actually
received
the
judgment.
Jacoby
attests in a sworn declaration that he spoke with the
warden about getting copies of this log book and that
she told him she would only do so with a court order.
The
court
denied
as
unnecessary
Jacoby’s
initial
request for court-ordered discovery, see Order (doc.
no. 81), and has not ruled on his subsequent requests.
See,
e.g.,
Motion
for
a
Continuance
to
Obtain
More
Records (doc. no. 82) at 1 (requesting that the court
order the prison warden to give him copies of the mail
log-in sheet).
In
any
case,
the
court
request because the court
need
not
grant
Jacoby’s
finds that he has made a
sufficient showing of the date he received the judgment
even
absent
declaration,
the
he
signature
attests
log
that
he
he
seeks.
remembers
In
his
receiving
three decisions in separate cases from this court in a
8
very short time in October 2018, and that he filed his
notices of appeal within seven to 10 days of receiving
each of the judgments.
no. 83-1) at 1-2.
See Jacoby Declaration (doc.
The court has checked the dockets of
the other two cases mentioned by Jacoby, and they do
reflect that he filed notices of appeals in each of
these cases in October 2018.
declaration credible.
The court finds Jacoby’s
For while he could have simply
made up a specific date that he received the judgment
in an attempt to show that he met the requirements of
Rule 4(a)(6), it is clear that instead he simply gave
the court his best recollection of what he remembers
happened
supplement
many
his
months
ago,
recollection
and
by
has
attempted
repeatedly
to
requesting
that the court order production of the document that
would
definitively
addition,
explaining
the
the
show
court
the
finds
vagaries
of
date
the
the
of
receipt.
Bishop
mail
In
declaration
distribution
process for inmates at Bibb Correctional Facility has
9
the ring of truth in light of the court’s knowledge of
the
severe
understaffing
problems
at
that
facility.
The Bishop declaration and Jacoby’s own explanation of
the
crisis
state
of
the
institution
go
far
towards
explaining how Jacoby could have had to wait a month
for the prison to provide him with the judgment in this
case.3
In
sum,
the
court
accepts
Jacoby’s
sworn
testimony that he filed his notice of appeal within
seven to 10 days of receiving it.
Because the notice of appeal was filed on October
20, 2018, the court calculates that Jacoby must have
received the judgment on October 10, at the earliest.
Thus, the court finds that Jacoby did not receive the
judgment within 21 days of its August 29 entry; thus he
meets
the
requirement
set forth
in
Rule
4(a)(6)(A).
3. While Jacoby estimated that the mail was
delayed for only two to three weeks--not a month--after
receipt by the institution, the court does not hold him
to the earlier estimate.
Until he received certain
mail logs earlier this year showing the date letters
were logged, Jacoby presumably did not know exactly
when his legal mail was received by the mail room.
10
The
court
finds
that
Jacoby
also
requirement of Rule 4(a)(6).
meets
the
second
Pursuant to Sanders v.
United States, 113 F.3d 184, 187 (11th Cir. 1997), the
court
will
construe
Jacoby’s
notice
of
appeal
as
a
motion to reopen the time for filing, and, because this
motion was filed both within 180 days after the entry
of judgment and within 14 days of when Jacoby received
notice of the entry of judgment, the court finds that
he meets the second requirement of Rule 4(a)(6).
Fed. R. App. P. 4(a)(6)(B).
See
Finally, the court finds
no prejudice to the defendants in reopening the time
for filing a notice of appeal.
4(a)(6)(C).
See Fed. R. App. P.
Thus, the court will grant Jacoby’s motion
to reopen the time for filing a notice of appeal.
Rule 4(a)(6) authorizes a court to reopen the time
to file an appeal for a period of 14 days after the
date
when
its
order
to
reopen
is
entered.
Here,
however, Jacoby has already filed his notice of appeal
11
on October 20, 2018, so he is not required to file a
new notice of appeal.
***
Accordingly,
pursuant
to
the
directive
of
the
Eleventh Circuit Court of Appeals remanding this case
to this court to make two determinations, it is ORDERED
that:
(1) It is declared, as set forth in the court’s
order
of
February
27,
2019
(doc.
no.
74),
that
plaintiff Brent Jacoby did not file a prior, timely
notice of appeal.
(2)
merits
It
is
reopening
also
declared
of
the
that
appeal
plaintiff
period
under
Jacoby
Federal
Rule of Appellate Procedure 4(a)(6).
(3) Plaintiff Jacoby’s notice of appeal (doc. no.
67)
is
treated
as
a
motion
to
reopen
the
time
for
filing a notice of appeal and said motion is granted.
It
is
further
ORDERED
that
plaintiff
Jacoby’s
“Motion to Reconsider Dismissing 42 USC 1983 for not
12
Filing Documents in a Timely Manner” (doc. no. 73) is
denied as moot.
The clerk of court is DIRECTED to return this case,
as
supplemented,
to
the
Eleventh
Circuit
Court
Appeals for further proceedings.
DONE, this the 17th day of July, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
13
of
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