Kendry v. Craft et al

Filing 97

ORDER directing Defendants to submit the prison mailing logs from Plaintiff's penal institution and submit a memorandum of law addressing the issue of prejudice under Fed. R. App. P. 4(a)(6) by May 28, 2018; directing Plaintiff to submit a s igned statement responsive to the Eleventh Circuit Court's Order on Remand stating how he learned of the entry of the February 2, 2018 judgment and the date, if any, he received notice of the judgment, and addressing the issue of prejudice by May 28, 2018. Signed by Judge Marcia Morales Howard on 4/26/2018. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

SIMMIE KENDRY,
Plaintiff,
vs.

Case No. 3:15-cv-248-J-34MCR

CO E. KRAFT, et al.,
Defendants.

ORDER
This case is before the Court upon limited remand from the Eleventh Circuit Court
of Appeals to determine whether the appellant/plaintiff Simmie Kendry, proceeding pro
se, “is entitled to have the period of time to file an appeal reopened pursuant to Federal
Rule of Appellate Procedure 4(a)(6).” See Order of USCA (Doc. 95; Order on Remand).
To make this determination, the Court will require the parties to submit relevant
documentation and briefing.
On January 31, 2018, this Court denied Kendry’s Motion for Summary Judgment
(Doc. 78) and granted Defendants’ Motion for Summary Judgment (Doc. 84). See Order
(Doc. 88). The Clerk entered Judgment in a Civil Case (Doc. 89; Judgment) on February
2, 2018, which made the deadline for Kendry to file an appeal from the Judgment March
5, 2018. See Fed. R. App. P. 4(a)(1)(A) (stating that a notice of appeal must be filed within
thirty days of entry of judgment). On March 6, 2018, one day beyond the time for filing his
appeal, Kendry mailed a Notice of Interlocutory Appeal (Doc. 92; Notice of Appeal).1 The

The certificate of service of Kendry’s Notice of Appeal bears a mailing date of March 6, 2018. Pursuant to
Federal Rule of Appellate Procedure 4(c)(1), Kendry, who is an inmate of the Florida penal system, receives
the benefit of the “mailbox rule.” The docket reflects a filing date of March 12, 2018.
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appellate court, interpreting Kendry’s pro se filings liberally, construed his faciallyuntimely Notice of Appeal as a motion to reopen the time to file an appeal under Federal
Rule of Appellate Procedure 4(a)(6). See Order on Remand at 2 (citing Sanders v. United
States, 113 F.3d 184 (11th Cir. 1997) (per curiam)). In his Notice of Appeal, Kendry states
that the Court’s Order on summary judgment was “forwarded” to him on February 7, but
that he did not receive it until February 21, 2018. The appellate court construed this
assertion to “suggest[] there may also have been an unusual delay in mailing the
judgment to him.” Id. at 3. In addition, Kendry styled his Notice of Appeal as
“Interlocutory,” which is consistent with not having received the Judgment. Id.
Rule 4(a)(6) of the Federal Rules of Appellate Procedure provides that the district
court may reopen the time to file an appeal for a period of fourteen days only if the
following conditions are satisfied:
(A) the court finds that the moving party did not receive notice
under Federal Rule of Civil Procedure 77(d) of the entry of the
judgment or order sought to be appealed within 21 days after
entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d)
of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6).2 The question on remand is whether Kendry did not receive the
notice of the entry of Judgment or Order sought to be appealed within twenty-one days
after entry. According to the Clerk’s docket entry, the Clerk mailed to Kendry copies of

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Federal Rule of Civil Procedure 77(d) provides that the Clerk of Court must immediately serve on the
parties of record notice of entry of an order or judgment.

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the Order and Judgment on February 2, 2018. The docket does not reflect when Kendry
received the mailings, but the mail was not returned as undeliverable. See docket. To
make a determination regarding whether Kendry should receive an extension of time
under Rule 4(a)(6), the Court will direct Defendants to provide the Court with prison
mailing logs from Kendry’s penal institution for the relevant period. If the institution does
not maintain a log of incoming prisoner mail, Defendants shall provide the Court with an
institutional statement verifying such. It is unclear whether the Eleventh Circuit is directing
this Court to engage in fact-finding related solely to the determination of the date on which
Kendry received the Judgment, or whether this Court should also address the issue of
prejudice under Rule 4(a)(6). In an abundance of caution and to develop a complete
record, the Court further will direct both parties to address the issue of prejudice.
Therefore, it is now
ORDERED:
1.

Defendants, by May 28, 2018, shall submit the prison mailing logs from

Kendry’s penal institution for the relevant period and shall submit a memorandum of law
addressing whether any party will be prejudiced if Kendry were to receive the benefit of
Rule 4(a)(6). If the institution does not maintain a log of incoming prisoner mail,
Defendants shall provide the Court with an institutional statement verifying such.
2.

Kendry, by May 28, 2018, shall submit to this Court a signed statement

responsive to the appellate court’s Order on Remand. Specifically, Kendry should “state
in more detail how he learned of the entry of the February 2, 2018 judgment and the date,
if any, he received notice of the judgment pursuant to Federal Rule of Civil Procedure
77(d).” See Order on Remand at 3. In addition, Kendry should address whether he or

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Defendants would be prejudiced if Kendry were to receive the benefit of Rule 4(a)(6).
Kendry is reminded of Rule 11, Federal Rules of Civil Procedure, which states that by
signing papers or motions filed with the Court, a pro se party “certifies that to the best of
[his] knowledge, information, and belief . . . the factual contentions have evidentiary
support . . . and denials of factual contentions are warranted on the evidence or . . . are
reasonably based on belief or a lack of information.”
DONE AND ORDERED at Jacksonville, Florida, this 26th day of April, 2018.

Jax-6
c:
Simmie Kendry, #102106
Counsel of Record

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