Montgomery v. Bigham et al

Filing 174

MEMORANDUM. Signed by Judge Ellen L. Hollander on 6/29/2016. (c/m 6/30/16 bas, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COCJR~1L"; ~jj ,,:,et::
FOR THE DISTRICT OF MARYLAND'J DA1_~":Ci~'::

DAVID MICHAEL
MONTGOMERY,
Plaintiff,
Civil Action No.: ELH-13-00930

v.
CONMED, INC.,
Defendant.

MEMORANDUM
The United States Court of Appeals for the Fourth Circuit remanded this case to the
District Court on April 22, 2016 (ECF 159), for the limited purpose of allowing this Court to
determine whether plaintiff-appellant

David Michael Montgomery noted a timely appeal to the

Fourth Circuit in regard to the Memorandum Opinion (ECF 146) and Order (ECF 147) issued by
this Court on December 24,2015.

In ECF 146 and ECF 147, I granted the motion for summary

judgment (ECF 128) filed by defendant Conmed, Inc. ("Conmed,,).l
Montgomery,

a Maryland

inmate currently incarcerated

at the Patuxent Institution

("Patuxent"), subsequently noted the appeal that is at issue. As discussed, infra, Montgomery
was required to deposit his notice of appeal in Patuxent's

internal mail system on or before

January 25, 2016. His handwritten, pro se notice of appeal is dated January 25, 2016. ECF 154

In writing my Memorandum Opinion (ECF 146), I considered Conmed's Policy and
Procedures Manual (ECF 132-4), which was filed under seal. Accordingly, the Memorandum
Opinion (ECF 146) was filed under seal. A redacted, public version of the Memorandum
Opinion is available at ECF 151.
.
1

at 1.2 However, it was not docketed by the Clerk of the District Court until February 8, 2016.
Id.3

Therefore, the Fourth Circuit has directed this Court to determine the timeliness of the

appeal under Houston v. Lack, 487 U.S. 266 (1988) and Fed. R. App. P. 4(c)(I). ECF 159 at 3.
As best 1 can determine, 1 am satisfied that Montgomery complied with Fed. R. App. P.
4(c)(1). Therefore, his notice of appeal was timely filed.
DISCUSSION
Timely filing of a notice of appeal is "mandatory and jurisdictional."

Budinich v. Becton

Dickinson & Co., 486 U.S. 196, 203 (1988). As a general matter, the notice of appeal in a civil
matter "must be filed with the district clerk within 30 days after entry of the judgment or order
appealed from." Fed. R. App. P. 4(a)(I).
Fed. R. App. P. 26(a)(I) governs the way in which the 30-day deadline is calculated. It
provides, id.:
(I) Period Stated in Days or a Longer Unit. When the period is stated in days or a
longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal
holidays; and
(C) include the last day of the period, but if the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday.
2 Montgomery is now self-represented. But, he was represented in the district court by
pro bono counsel, appointed by the Court. ECF 85. Pro bono counsel appears to have sent ECF
146 and ECF 147 to Montgomery before the expiration of the appeal period. In ECF 154 at 1,
Montgomery said: "I received a packet from my attorney stating that [her] representation ends
for me."
As discussed, infra, the District Court's Clerk's Office did not docket the envelope.
Thus, the postmark is not available.
3

2

Thus, Mr. Montgomery was required to file his notice of appeal on or before January 25, 2016.
Fed. R. App. P. 4(c) governs appeals by inmates who are incarcerated.

When, as here, an

appeal is filed by a prisoner, the notice of appeal is deemed timely filed if the inmate delivers it
to the institution's "internal mail system" by the due date for filing. Fed. R. App. 4(c)(1). Rule
4(c)(1) states: 4
If an inmate confined in an institution files a notice of appeal in either a civil or a
criminal case, the notice is timely ifit is deposited in the institution's internal mail
system on or before the last day for filing. If an institution has a system designed
for legal mail, the inmate must use that system to receive the benefit of this rule.
Timely filing may be shown by a declaration in compliance with 28 U.S.c.
S 1746[5] or by a notarized statement, either of which must set forth the date of
deposit and state that first-class postage has been prepaid. (Emphasis added.)

Absent congressional
December 1,2016, as follows:
4

action, Fed. R. App. P. 4(c)(1) will be amended, effective

(1) If an institution has a system designed for legal mail, an inmate confined there
must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a
notice of appeal in either a civil or a criminal case, the notice is timely if it is
deposited in the institution's internal mail system on or before the last day for
filing and:
(A) it is accompanied by:
(i) a declaration in compliance with 28 U.S.C. S 1746--or a
notarized statement--setting out the date of deposit and stating that
first-class postage is being prepaid; or
(ii) evidence (such as a postmark or date stamp) showing that the
notice was so deposited and that postage was prepaid; or
(B) the court of appeals exercises its discretion to permit the later filing of
a declaration or notarized statement that satisfies Rule 4(c)(1 )(A)(i).
,528 U.S.C.

S 1746 states:
3

Upon remand, on April 25, 2016, I issued an Order (ECF 160), in which I outlined the
relevant portions of Fed. R. App. P. 4 and gave Mr. Montgomery "twenty-eight days to provide a
declaration or notarized statement that attests to the date he deposited the notice of appeal in the
institutional internal mail system." Id. at 2. On May 4, 2016, the Clerk received a letter from
Montgomery, dated April 27, 2016. ECF 161. He averred, in part, id. at 1: "I filed a appeal [sic]
on time ....

" He added, id.: "I wrote an [sic] filed for it on time an [sic] these people here are

responsible once I put it in the box an [sic] being in the mental health program[6] then its hard to
do things ... But Judge I filed the Appeal as soon as possible."
Montgomery's

submission (ECF 161) was not entirely responsive to my Order of April

25, 2016 (ECF 160). Among other things, the submission was not notarized, nor was it made
Wherever, under any law of the United States or under any rule, regulation, order,
or requirement made pursuant to law, any matter is required or permitted to be
supported, evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of the person
making the same (other than a deposition, or an oath of office, or an oath required
to be taken before a specified official other than a notary public), such matter
may, with like force and effect, be supported, evidenced, established, or proved
by the unsworn declaration, certificate, verification, or statement, in writing of
such person which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
(1) If executed without the United States: "I declare (or certify, verify, or
state) under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed on (date).
(Signature)".
(2) If executed within the United States, its territories, possessions, or
commonwealths: "I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on (date).
(Signature)" .
6 Patuxent is a correctional mental health center. See Maryland Department of Public
Safety and Correctional Services, Patuxent Institution (June 22, 2016 at 10:42 AM),
https:/ /www.dpscs.state.md.us/locations/pat. shtml.
4

under penalty of perjury.

And, although Montgomery represented that he filed his appeal "on

time," he failed to specify the date of deposit of his appeal. Nor did he indicate that he provided
prepaid postage.
Accordingly, by Order of May 4,2016 (ECF 162), I directed Montgomery, by May 31,
2016, "to provide a dated declaration, under penalty of perjury, that attests to the date he
deposited

the notice

of appeal in the institutional

representation as to prepaid postage."
copy of28 U.S.C.

S

internal mail system,

along with a

Id. at 2. For Montgomery's convenience, I provided a

1746 as well as a copy of my prior Order (ECF 160). See ECF 162 at 3-5.

In the meantime, on May 6, 2016, the Clerk docketed a letter from Montgomery (ECF
163), dated April 27, 2016.

Id. It had been mailed to the Clerk of the Court for the Fourth

Circuit and received by the Fourth Circuit on May 5, 2016.

ECF 163-1.

In the letter,

Montgomery stated, ECF 163 at 1: "[T]here [sic] telling me that there [sic] given [sic] me twenty
eight day[ s] to provid [sic] a declaration or notarized statement.

I dont [sic] know what a

declaration is." Montgomery reiterated, id.: "When the courts sent me the paper I filed it right
away to this courts [sic]. I just file [sic] it an [sic] put my letters in the mail box here then these
people are responsible."
On May 16, 2016, the Clerk docketed a third submission from Montgomery, dated May
9,2016.

ECF 164. In relevant part, Montgomery stated, id. at 2: " ... I received that packet from

the courts an [sic] I filled it out an [sic] sent it back in time to the appeal courts [sic]. I put
postage stamps on my mail then I put it in the mail box then its [sic] Patuxent's responsible [sic]
to see to it that my mail is sent out. But showing that I used postage prepaid [sic] I cant [sic] do
because I just put stamps on my mail and I sent it out .... " Further, Montgomery averred, id. at

5

3: "I am suppling [sic] the courts what they ask for do [sic] to the best of my ability."
Montgomery concluded, id.: "28 U.S.C.A

S

1746 ...

unsworn declaration under penalty of

perjury if executed within the United States its territories possions [sic] or common wealths [sic]
I declare state [sic] under penalty of perjury that the foregoing is true and correct May 9th 2016."
Montgomery's

submission

includes

the "Plaintiffs

[sic] Signature"

of "David

Michael

Montgomery" and the "Witness Signature" of "David Knight." Id.
By Order of May 17, 2016 (ECF 165), I asked Conmed to notify me as to whether it
intended to file a response to Montgomery's submissions. Id. at 1. By letter to the Court of June
7,2016 (ECF 168), Conmed responded. In relevant part, Conmed asserted, id. at 2:
Plaintiff has now been given numerous opportunities to comply with the rule and
has failed to do so. In fact, Plaintiff has refused to comply with the simple task of
identifying the appropriate date - in a declaration or notarial statement. Moreover,
this failure has been repeated several times, despite the numerous extra
opportunities to comply with the law and the Court's Orders. Because Plaintiff
has failed to comply with the requirements of FRAP Rule 4(c) 1 [sic] his appeal
should been deemed untimely filed.
Because Montgomery's

submissions did not establish with clarity his compliance with

Fed. R. App. P. 4(c)(I), I issued an Order to the Office of the Maryland Attorney General on
June 9, 2016 (ECF 169)/ asking counsel to "notify the Court as to whether the Patuxent
Institution maintains mail logs for outgoing correspondence of inmates, and, if so, whether the
records demonstrate when Mr. Montgomery deposited the notice of appeal in the Patuxent
Institution's internal mail system." Id. at 2. I also asked counsel to provide "information as to
whether the institution generally provides postage, or whether Mr. Montgomery provided the
postage .... " Id.
7 The Maryland Attorney General was previously involved in this case, as it represented
defendants who have been dismissed. ECF 48; ECF 49.

6

Thereafter, by letter dated June 20, 2016, Mr. Montgomery wrote another letter to the
Court (ECF 173), which was docketed on June 24, 2016. He said, in part, id. at 1: "I sent you
the papers I had showing the date."
The Office of the Attorney General responded on June 22, 2016, to my Order of June 9,
2016. ECF 172. With its response, the Office of the Attorney General submitted the Declaration
of Drake E.J. Winkey, who is a "Correctional case magement [sic] specialist II (CCMS II),
Litigation Coordinator for the Patuxent Institution ....
addition, counsel submitted a "Printout of Plaintiffs

" ECF 172-1 at 1; see id. at 1-2. In
Inmate Account from November 6, 2015

through June 20, 2016" (the "Inmate Account Statement"). ECF 172 at 2; see ECF 172-2 at 1-4.
In his Declaration, Winkey states, ECF 172-1 ~ 3: "Patuxent does not keep logs of
outgoing inmate correspondence, including legal mail.,,8 Further, Winkey avers, id. ~ 4:
If Mr. Montgomery's financial status was indigent at the time that he
claims to have sent his letter to the court, Patuxent would have provided him with
a stamp for his mail. According to the attached financial print out [(ECF 172-2 at
1-4)] on or about the date of January 25, 2016, Mr. Montgomery had $54.04 in his
inmate account, thus indicating that he was not indigent and was able to purchase
stamps.
Review of the Inmate Account Statement (ECF 172-2) indicates that an inmate's
purchase of postage is recorded separately from other withdrawals, and is marked with the code
"POSTAGE CR." See ECF 172-1 at 1-4. Account withdrawals to purchase postage are typically
accompanied

by a "Description"

particular date.

that states "Payment for POSTAGE CR" as well as the

See id. During the period from December 24, 2015, until January 25, 2016,

8 I note that in Houston v. Lack, 487 U.S. at 268, the prison in issue kept a log of
outgoing mail. Therefore, it was "a straightforward inquiry" to determine the date of the
inmate's deposit of the mail. Id.at 275.
7

Montgomery's Inmate Account Statement reflects three withdrawals. ECF 172-2 at 4. However,
none of these withdrawals appears to pertain to the purchase of postage. See id.
Unfortunately, the Clerk of the District Court did not docket the envelope containing
Montgomery's

notice of appeal.

available for inspection.
Montgomery's

However, the Clerk docketed some of the other envelopes containing

submissions.

the date on Montgomery's

See ECF 154. Therefore, the date of that postmark is not

In general, it appears that there is about a one-week period between
submissions and the date of docketing.

dated Wednesday, April 27, 2016.

Id. at 1.

ECF 161, for example, is

The envelope that contained ECF 161 was

postmarked on Monday, May 2, 2016. ECF 161-1 at 1. And, the Clerk docketed ECF 161 on
Wednesday, May 4,2016.

ECF 161. Moreover, the driving distance between Patuxent and the

United States Courthouse in Baltimore is less than fifteen miles.9 Thus, if Montgomery actually

9 See Driving Directions from 7555 Waterloo Road Jessup, Maryland 20794 [Patuxent
Institution] to 101 W Lombard St, Baltimore, MD 21201 [Edward A. Garmatz United States
Courthouse], Google Maps, http://maps.google.com (follow "Directions" hyperlink; then search
starting point field for "7555 Waterloo Road Jessup, Maryland 20794" and search destination
field for "101 W Lombard St, Baltimore, MD 21201") (showing the driving distance to be 14.1
miles).

"[A] court may properly take judicial notice of 'matters of public record' and other
information that, under Federal Rule of Evidence 201, constitute 'adjudicative facts.'" Goldfarb
v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015); see Fed. R. Evid.
20l(b) (stating that a "court may judicially notice a fact that is not subject to reasonable dispute
because it ... can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned"); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007); Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011), cert.
denied, __
U.S. __ ' 132 S. Ct. 115 (2011); Philips v. Pitt County Mem'l Hosp., 572 F.3d
176, 180 (4th Cir. 2009).
Notably, "[i]t is not uncommon for courts to take judicial notice of factual information
found on the world wide web." O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (lOth
Cir. 2007); cf Jeandron v. Bd. of Regents ofUniv. Sys. of Maryland, 510 F. App'x 223, 227 (4th
Cir. 2013) (noting that the court may take judicial notice of information on a website, "so long as
the web site's authenticity is not in dispute"). A court may "'take judicial notice of a Google
8

deposited his notice' of appeal in Patuxent's internal mail system on the date he wrote it, i. e.
Monday, January 25, 2016, it is surprising that the Clerk did not receive it until two weeks later,
on Monday, February 8, 2016. And, as noted, Montgomery's

Inmate Account Statement shows

no apparent postage purchases during the appeal period.
As indicated, Fed. R. App. P. 4(c)(l) provides: "Timely filing may be shown by a
declaration in compliance with 28 U.S.C.

S 1746

or by a notarized statement, either of which

must set forth the date of deposit and state that first-class postage has been prepaid."
added.)

(Emphasis

Montgomery clearly avers that he put the notice of his appeal in the mailbox, with

postage. See, e.g., ECF 164 at 2. And, he states that he did so within the required time, although
he never provided the exact date, nor was the statement made under oath.
In particular, on April 25, 2016, Montgomery expressly said in a statement that was not
under oath, ECF 161 at 1: "I filed a [sic] appeal on time .... " Thereafter, on May 9, 2016,
under oath, Montgomery stated, ECF 164 at 2: "I received that packet from the courts an [sic] I
filled it out an [sic] sent it back in time to the appeal courts [sic]. I put postage stamps on my
mail then I put it in the mail box then its [sic] Patuxent's responsible [sic] to see to it that my
mail is sent out."
Construing Montgomery's

submissions liberally, as I must, Erickson v. Pardus, 551 U.S.

89, 94 (2007), Montgomery has provided submissions, including a Declaration in compliance

map and satellite image as a 'source[ ] whose accuracy cannot reasonably be questioned. ""
Pahls v. Thomas, 718 F.3d 1210, 1216 n. 1 (lOth Cir. 2013) (quoting United States v. Perea-Rey,
680 F.3d 1179, 1182 n. 1 (9th Cir. 2012) (alteration in Perea-Rey)). However, "these facts [must
be] construed in the light most favorable" to the non-movant. Clatterbuck v. City of
Charlottesville, 708 F.3d 549,557 (4th Cir. 2013) (abrogated on other grounds by Reed v. Town
o/Gilbert, Ariz., __ U.S. __ ,135 S. Ct. 2218 (2015), as recognized in Cahaly v. Larosa, 796
F.3d 399 (4th Cir. 2015)).
9

with 28 U.S.c.
Patuxent's

S

1746, stating that he timely placed his notice of appeal, with postage, in

internal mail system.

Although Montgomery does not provide the exact date of

mailing, it would seem unlikely, so long after the fact, that he would recall the exact date in
which he placed the notice with the prison's internal mail system.

But, it does seem plausible

that one would recall whether or not a mailing was timely. The notice of appeal is dated January
25, 2016, which was the due date. See ECF 154. Nothing appears in the record to contradict
Montgomery's assertions.
In light of the foregoing, I am satisfied that Montgomery has satisfied Fed. R. App. P.
4(c)(l).

Accordingly, I conclude that Montgomery's notice of appeal was timely.

Date: June 29, 2016

/s/
Ellen Lipton Hollander
United States District Judge

10