Arthur Lee Smart v. E. Ortiz et al

Filing 50

ORDER re Factual Determination (Doc. No. 42 ). Signed by Judge Anthony J. Battaglia on 6/25/2021.(All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARTHUR LEE SMART,

Plaintiff,

v.
E. ORTIZ, et al.,

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Defendants.

Case No.: 17-cv-1454-AJB-BGS
ORDER RE FACTUAL
DETERMINATION
(Doc. No. 42)

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On February 16, 2021, the Ninth Circuit Court of Appeal remanded Arthur Lee

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Smart’s (“Smart”) appeal for the limited purpose of permitting this Court to make a factual

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determination as to when Smart “first delivered a notice of appeal to prison officials for

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mailing to the district court in compliance with the requirements of Federal Rule of

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Appellate Procedure 4(a)(c) and Houston v. Lack, 487 U.S. 266, 270 (1988).” (Doc. No.

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42 at 1.) The Ninth Circuit provided that this Court “may consider any further filings or

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evidence it deems appropriate.” (Id.) Pursuant to the Ninth Circuit’s order, and for the

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reasons set forth below, the Court makes the factual determination that Smart filed his

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Notice of Appeal on December 9, 2019. (Doc. No. 39.)

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I.

REQUEST FOR JUDICIAL NOTICE

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Under Federal Rule of Evidence 201(b), this Court may take judicial notice of facts

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that are “capable of accurate and ready determination by resort to resources whose accuracy

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cannot reasonably be questioned.” See Jespersen v. Harrah’s Operating Co., 444 F.3d
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1104, 1110 (9th Cir. 2006) (en banc). Thus, a court may take judicial notice of “matters of

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public record.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Judicially

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noticeable facts include a court’s own records in other cases, and the records of other

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courts. United States v. Wilson, 631 F.2d 118, 119–20 (9th Cir. 1980).

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Defendants request the Court take judicial notice of the following filings:

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• Smart’s Notice of Appeal in Smart v. Asuncion, C.D. Cal. Case No. 2:13-cv-

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08311-GW-DTB, dated June 1, 2017;

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• Smart’s Response to Order to Show Cause, in Smart v. Asuncion, Ninth Cir.

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Case No. 17-55895, dated June 1, 2017;

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• The Court’s Order in Smart v. Asuncion, Ninth Cir. Case No. 17-55895,

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dated November 29, 2017;

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• Defendants’ Motion to Dismiss for Lack of Jurisdiction in Smart v. Ortiz, et

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al., Ninth Cir. Case No. 19-56447, dated December 17, 2019; and

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• Smart’s Opposition to Defendants’ Motion to Dismiss for Lack of

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Jurisdiction in Smart v. Ortiz, et al., Ninth Cir. Case No. 19-56447, dated

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June 18, 2020.

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Because all of the above documents are filings either on the Ninth Circuit or C.D.
Cal.’s dockets, these filings are appropriate subjects for judicial notice. See Mir v. Little

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Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice

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of court records). Thus, Defendants’ request for judicial notice is GRANTED in full.

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II.

BACKGROUND
On March 15, 2019, this Court granted Defendants’ motion to dismiss, and entered

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judgment on March 19, 2019. (Doc. Nos. 37, 38.) On December 9, 2019, Smart submitted

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a Notice of Appeal (“the December 2019 Notice of Appeal”). (Doc. No. 39.) On December

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17, 2019, Defendants filed a motion to dismiss for lack of jurisdiction before the Ninth

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Circuit, arguing Smart filed his Notice of Appeal more than eight months after the March
19, 2019 entry of judgment, instead of within thirty days. (Doc. No. 49-1 at 32–34.) Smart
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opposed, claiming—for the first time—that he had submitted a Notice of Appeal on April

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1, 2019 (“the April 2019 Notice of Appeal”). (Id. at 42–50.) On February 16, 2021, the

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Ninth Circuit remanded Smart’s appeal for the limited purpose of permitting this Court to

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make a factual determination as to when Smart “first delivered a notice of appeal to prison

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officials for mailing to the district court in compliance with the requirements of Federal

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Rule of Appellate Procedure 4(a)(c) and Houston v. Lack, 487 U.S. 266, 270 (1988).” (Doc.

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No. 42 at 1.)

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Then on February 18, 2021, the Court ordered a briefing schedule, directing Smart

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to file briefing demonstrating the date he first delivered a Notice of Appeal to prison

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officials for mailing to this Court. (Doc. No. 43.) The briefing was to clearly set forth the

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steps Smart took to deposit his Notice of Appeal and provide the specific date the Notice

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of Appeal was delivered to prison officials. (Id.) Smart was to support his briefing with

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documentary evidence (i.e., mail logs, written requests, letters, etc.) showing the date on

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which he first delivered his Notice of Appeal to prison officials. (Id.) Smart was to also

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explain the specific timing and procedures taken to deliver what he contends was his

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second Notice of Appeal, which was subsequently filed with this Court on December 9,

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2019. (Id.) In the same order, the Court also provided Defendants an opportunity to file an

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opposition brief. (Id. at 2.) This briefing was also to be supported by specific documentary

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evidence (i.e., mail logs, written requests, letters, etc.). The Court explained in its order

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that after receiving the appropriate briefing and evidence in support thereof, the Court

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would review the materials and set a hearing, if necessary. (Id.) The Court cautioned that

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if the parties failed to timely file the ordered briefing and evidence, the Court would make

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a factual determination based on the current record before the Court, including the evidence

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submitted to the Ninth Circuit. (Id.)

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On March 24, 2021, Smart moved for an extension of time to submit his briefing,

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which was granted by the Court. (Doc. Nos. 45–46.) The Court provided Smart until May

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24, 2021 to file his briefing. (Doc. No. 46.) The Court again warned that if the parties failed

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to timely file the ordered briefing and evidence, the Court would make a factual
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determination based on the current record before the Court, including the evidence

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submitted to the Ninth Circuit. Smart did not do so. (Id.) To this date, no briefing has been

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filed by Smart. On June 7, 2021, Defendants timely filed their opposition brief. (Doc. No.

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49.) This order follows.

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III.

DISCUSSION

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Apart from self-serving assertions, Smart has made no showing, supported by

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evidence in the record, that he timely filed a Notice of Appeal on or around April 1, 2019.

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In response to Defendants’ motion to dismiss the Appeal for lack of jurisdiction, Smart

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argued for the first time that he had timely filed a Notice of Appeal “around” April 1, 2019.

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(Doc. No. 49-1 at 43.) Smart contends that he was placed in administrative segregation

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during this time, assumed that the April 2019 Notice of Appeal would be properly sent to

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the Court, but was ultimately unable to follow up on his April 2019 Notice of Appeal. (Id.)

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He further alleges that it was not until he was transferred to a new detention facility that he

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discovered the deficiency and thereafter immediately filed the second December 2019

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Notice of Appeal. (Id.) The evidence in the record does not support Smart’s contention that

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he timely filed an April 2019 Notice of Appeal.

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First, there is no corroborating evidence tending to support Smart’s claim that he did

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in fact file a Notice of Appeal “around” April 1, 2021. Missing from the record is any copy

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of the purported April 2019 Notice of Appeal, or any post-marked envelope that the Notice

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of Appeal was contained in. The Richard J. Donovan (“RJD”) Correctional Facility legal

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mail log, which documents all incoming and outgoing mail for the entirety of Smart’s

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incarceration at RJD, does not show that any mail was deposited for mailing to the Court

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around April 2019. (Doc. No. 49-2 at 9–16.) Further, and more tellingly, the second

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December 2019 Notice of Appeal filed by Smart does not acknowledge the untimeliness

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of the filing, nor does it attempt to explain why the April 2019 Notice of Appeal was never

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properly sent to the Court. (Doc. No. 39.) Instead, in the December 2019 Notice of Appeal,

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Smart only summarily states that “[n]otice is hereby given that Plaintiff in the above-

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entitled matter appeals to the United States Court of Appeals for the Ninth Circuit from the
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final judgment entered in this action on March 19, 2019.” (Id. at 1.) Smart’s failure to

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acknowledge or to justify the delay provides a strong inference that Smart did not timely

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file an April 2019 Notice of Appeal.

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Second, Smart does not present any evidence showing that internal prison mailing

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procedures were not appropriately followed by prison officials. Moreover, there is no

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evidence or documents demonstrating that Smart had in fact inquired about the status of

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his first April 2019 Notice of Appeal. Defendants explain that “inmates are allowed to send

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and receive legal mail while they are housed in administrative segregation.” (Doc. No. 49

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at 7.) But there is no documentation from RJD, and nothing on the Court’s docket,

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indicating Smart was reasonably diligent in following up on the status of his Appeal. In

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fact, there are no filings by Smart, or any other party, between March 19, 2019, the date of

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the Clerk’s judgment, and December 9, 2019, the date of Smart’s untimely appeal.

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IV.

CONCLUSION

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As Smart has failed to put forth any evidence demonstrating that he in fact timely

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submitted a Notice of Appeal, or demonstrated due diligence in inquiring about its status,

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the Court need not accept Smart’s post-hoc explanation that he filed an April 2019 Notice

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of Appeal. Despite granting Smart an extension of time to file his briefing, Smart has

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missed the deadline to provide any evidence supporting his claim. Because the record

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contains no evidence that Smart filed an April 2019 Notice of Appeal, the Court finds that

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Smart filed his Notice of Appeal on December 9, 2019—the only Notice of Appeal in the

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record.

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IT IS SO ORDERED.
Dated: June 25, 2021

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