Jacks v. Spencer et al

Filing 46

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiff's Motion to File Nunc Pro Tunc His Notice of Appeal and to File a Reconsideration Motion of The Court's May 6, 2016 Order on Defendants' Motion to Dismiss (Docket Entry # 40 ) PROCEDURAL ORDER Re: Plaintiff's Motion for Release from Judgment Pursuant to Rule 60(b)(1), (6) and Reconsideration Rights or Alternatively to Nunc Pro Tunc His Rights to Appeal and Reconsideration [sic] Motion (Docket Entry # 43 ). The "motion to nunc pro-tunc his notice of appeal" (Docket Entry # 40 ), construed as a motion to reopen the time to file an appeal, is ALLOWED to the extent that plaintiff will have 14 days after the date this Orde r is entered to file a notice of appeal. With respect to the motion for release (Docket Entry # 43 ) and the remaining portion of the nunc pro tunc motion (Docket Entry # 40 ), defendants are ORDERED to file the above noted affidavit on or before December 5, 2016. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES JACKS,
Plaintiff,
v.

CIVIL ACTION NO.
14-13072-MBB

LUIS SPENCER, THOMAS
DICKHAUT, JAMES SABA,
CAROL LAWTON and DENISE
McDONOUGH,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION TO FILE NUNC PRO TUNC HIS NOTICE OF
APPEAL AND TO FILE A RECONSIDERATION MOTION OF
THE COURT’S MAY 6, 2016 ORDER ON DEFENDANTS’
MOTION TO DISMISS (DOCKET ENTRY # 40)
PROCEDURAL ORDER RE:
PLAINTIFF’S MOTION FOR RELEASE FROM JUDGMENT PURSUANT
TO RULE 60(B)(1), (6) AND RECONSIDERATION RIGHTS OR
ALTERNATIVELY TO NUNC PRO TUNC HIS RIGHTS
TO APPEAL AND RECONSIDERATION [sic] MOTION
(DOCKET ENTRY # 43)
November 21, 2016
BOWLER, U.S.M.J
Pending before this court is a motion to file a notice of
appeal nunc pro tunc filed by plaintiff James Jacks
(“plaintiff”), an inmate presently housed at the Souza-Baranowski
Correctional Center in Shirley, Massachusetts (“SBCC”).
Entry # 40).

(Docket

The motion additionally requests an opportunity to

file a motion to reconsider a May 6, 2016 decision and “make
appropriate filings nunc pro tunc.”

(Docket Entry # 40).

More

than a month later and after filing a notice of appeal in the
interim, plaintiff filed a motion for release from judgment under

Fed.R.Civ.P. 60(b)(1) and (6) (“Rule 60”).1

(Docket Entry # 43).

Defendants Luis Spencer, Thomas Dickhaut, James Saba, Carol
Lawton and Denise McDonough (“defendants”) did not file an
opposition to the pro se motions.
In light of plaintiff’s pro se status, this court construes
the nunc pro tunc motion (Docket Entry # 40) as seeking an
extension of time to file a notice of appeal, see Fed.R.App.P.
4(a)(5) (“Rule 4”), or a reopening of the time to file an appeal,
see Fed.R.App.P. 4(a)(6), of the May 6, 2016 decision.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“document filed pro
se is ‘to be liberally construed’”); see generally Hassett v.
Hasselbeck, 177 F.Supp.3d 626 (D.Mass. 2016) (liberally
construing pro se complaint as invoking “the only possible remedy
available to her for the claimed wrong”).

The decision allowed

defendants’ motion for summary judgment, which defendants
initially filed as a motion to dismiss and this court converted
to a summary judgment motion in a March 16, 2016 Order.

A final

judgment dismissing this action entered on May 6, 2016.
In an affidavit supporting the nunc pro tunc motion,
plaintiff states that he did not receive the March 16, 2016 Order

1

This motion seeks, in the alternative, to “nunc pro tunc” an
appeal of a September 30, 2015 decision that denied plaintiff’s
summary judgment motion. Because the ruling on the nunc pro tunc
motion (Docket Entry # 40) reopens the time period for plaintiff
to file an appeal, as explained below, this portion of the motion
for release from judgment (Docket Entry # 43) is moot.
2

and belatedly received the May 6, 2016 decision on or about June
19, 2016.

(Docket Entry # 40-1).

As a reason, plaintiff

asseverates that he spoke with a “[m]ail officer” at SBCC, who
informed him that “all legal mail goes to [the] Inner Parameter
[sic] Officer to deliver and inspect for contraband and at times
mail gets lost or delayed depending on the security of the prison
at the time.”

(Docket Entry # 40-1, ¶ 4).

After filing the nunc pro tunc motion (Docket Entry # 40),
plaintiff filed the notice of appeal.

(Docket Entry # 42).

The

notice is dated August 5, 2016 and docketed September 1, 2016.
(Docket Entry # 42).

A week later, plaintiff filed the motion

for release from judgment under Rule 60(b).2
43).

(Docket Entry #

The Rule 60 motion is dated August 12, 2016 and docketed

September 1, 2016.

(Docket Entry # 43).
DISCUSSION

As noted above, the final judgment entered on May 6, 2016.
(Docket Entry # 38).

Under Rule 4(a), a civil litigant has “30

days after entry of the judgment or order appealed from” to file
a notice of appeal.

Fed.R.App.P. 4(a).

Because plaintiff is

“an inmate confined in an institution,” the filing date of a
notice of appeal is the date the notice is deposited in SBCC’s
internal mail system or, if SBCC “has a system designed for legal

2

The determination of the filing dates is explained below.
3

mail,” the date the notice is deposited in the internal system
for legal mail.

Fed.R.App.P. 4(c).

Absent evidence to the

contrary, this court assumes that plaintiff placed the notice of
appeal in the appropriate SBCC internal mail system on August 5,
2016.

See Torres v. Irvin, 33 F.Supp.2d 257, 270 (S.D.N.Y. 1998)

(“[a]bsent evidence to the contrary, the Court assumes that
[prisoner] gave his petition to prison officials for mailing on
the date he signed it”).

Applying the mailbox rule to the nunc

pro tunc motion, see Houston v. Lack, 487 U.S. 266, 276 (1988);
Casanova v. Dubois, 304 F.3d 75, 79 (1st Cir. 2002);
Morales–Rivera v. United States, 184 F.3d 109 (1st Cir. 1999),
this court likewise assumes plaintiff deposited the motion in
SBCC’s internal mail system on June 27, 2016, the date of the
motion.

See Torres v. Irvin, 33 F.Supp.2d at 270.

Finally,

solely for purposes of determining whether an extension of time
or a reopening of the time to appeal is needed, this court
concludes that neither the notice of appeal filed August 5, 2016
nor the nunc pro tunc motion filed June 27, 2016, if considered a
functional equivalent of a notice of appeal, see Campitu v.
Matesanz, 333 F.3d 317, 320 (1st Cir. 2003); see also DeLong v.
Dickhaut, 715 F.3d 382, 386 (1st Cir. 2013); Thomas v. Morton
Intern., Inc., 916 F.2d 39, 40 (1st Cir. 1990); Fed.R.App.P. 3(c),
was filed within “30 days after entry of the” May 6, 2016
decision as required by Rule 4(a)(1)(A).
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When a movant files a motion to extend the time period
within 30 days after the expiration of the 30-day time period to
file the notice of appeal, the district court has the discretion
to extend the time period if the movant “shows excusable neglect
or good cause.”

Fed.R.App.P. 4(a)(5).

The district court also

has the discretion to reopen the time period if “the court finds
that the moving party did not receive notice” under Fed.R.Civ.P.
77(d) (“Rule 77(d)”) “within 21 days after entry” of the final
judgment or order and the movant files the motion within 180 days
of the final judgment or within 14 days after the moving party
receives notice under Rule 77(d), “whichever is earlier.”
Fed.R.App.P. 4(a)(6); see Tanner v. Yukins, 776 F.3d 434, 439 (6th
Cir. 2015) (Rule 4(a)(6) “provides an avenue for relaxing the
time period for appeal in cases in which the litigant failed to
receive notice of entry of judgment”).

To fall within the safety

net of Rule 4(a)(6), the court must also “find[] that no party
would be prejudiced.”

Fed.R.App.P. 4(a)(6).

Here, with respect to the nunc pro tunc motion (Docket Entry
# 40), plaintiff complains about the lack of notice of the March
16, 2016 Order and the belated receipt of the May 6, 2016
decision on June 19, 2016.

Because Rule 4(a)(6) addresses

precisely these circumstances, to wit, when “the moving party did
not receive notice,” Fed.R.Civ.P. 4(a)(6), this court initially
examines Rule 4(a)(6) as opposed to Rule 4(a)(5).
5

See generally

Harris v. U.S., 2010 WL 1628788, at *2 (W.D.Pa. Apr. 21, 2010);
Couture v. U.S., 620 F.Supp.2d 155, 158 (D.Mass. 2009).
Turning to the task, plaintiff’s affidavit provides
sufficient evidence that he did not receive notice of the May 6,
2016 decision within 21 days of the Order’s entry in the civil
docket.

See Fed.R.App.P. 4(a)(6), (7); Fed.R.Civ.P. 79(a).

Rather, he received notice of the decision on or about June 19,
2016 thereby satisfying Rule 4(a)(6)(A).
1).

(Docket Entry # 40-1, ¶

Within 14 days of June 19, 2016, plaintiff filed the nunc

pro tunc motion dated June 27, 2016 thereby satisfying Rule
4(a)(6)(B).

Finally, given the short delay, none of the

defendants will be prejudiced by the delay.
4(a)(6)(C).

See Fed.R.App.P.

Indeed, defendants do not identify any prejudice or

oppose the nunc pro tunc motion.

Accordingly, plaintiff is

allowed 14 days after the date this Order is entered to file a
notice of appeal.3

See Fed.R.App.P. 4(a)(6).

The remaining portion of the nunc pro tunc motion requests
the opportunity to make “appropriate filings” nunc pro tunc to
obtain reconsideration of the May 6, 2016 decision.

In light of

the final judgment and the tenure of the argument as raising a
lack of notice as opposed to a purely substantive legal challenge

3

It is therefore not necessary to determine if Rule 4(a)(5)
also provides plaintiff the opportunity to file a notice of
appeal.
6

to the merits of the decision, this court construes this portion
of the motion as seeking relief under Rule 60(b).

Cf. Cahoon v.

Shelton, 647 F.3d 18, 29 (1st Cir. 2011) (“motion asking ‘the
court to modify its earlier disposition of a case because of an
allegedly erroneous legal result is brought under Fed.R.Civ.P.
59(e)’”) (quoting In re Sun Pipe Line, 831 F.2d 22, 24 (1st Cir.
1987), in parenthetical).
Rule 60(b) gives the court “the power to ‘relieve a party .
. . from a final judgment, order, or proceeding’ for certain
reasons, including ‘(1) mistake, inadvertence, surprise, or
excusable neglect’ and ‘(6) any other reason that justifies
relief.’”

Small J. LLC v. Xcentric Ventures LLC, 2015 WL

5737135, at *2 (D.Mass. Sept. 30, 2015) (quoting Rule 60(b)).
The determination “of what constitutes excusable neglect is an
equitable determination, taking into account the entire facts and
circumstances surrounding the party’s omission, including factors
such as the danger of prejudice to the non-movant, the length of
the delay, the reason for the delay, and whether the movant acted
in good faith.”

Davila-Alvarez v. Escuela de Medicina

Universidad C. del Caribe, 257 F.3d 58, 64 (1st Cir. 2001); see
Pioneer Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380, 395 (1993).
“‘The filing of a notice of appeal,’” however, ordinarily
“‘confers jurisdiction on the court of appeals and divests the
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district court of its control over those aspects of the case
involved in the appeal.’”

DeCambre v. Brookline Hous. Auth., 826

F.3d 1, 7 (1st Cir. 2016) (quoting Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982), in parenthetical); U.S. v.
Brooks, 145 F.3d 446, 455 (1st Cir. 1998) (“as a general rule,”
filing “notice of appeal divests a district court of authority to
proceed with respect to any matter touching upon, or involved in,
the appeal”); see also Shepherd v. Int’l Paper Co., 372 F.3d 326,
329 (5th Cir. 2004) (once notice of appeal filed, district court
lacks jurisdiction to grant previously filed Rule 60 motion);
Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989)
(reconsideration “motion was filed before the first appeal was
taken; hence, the district court had jurisdiction over it” but
“waited over a year to act--and when it did, the case was on
appeal” and, “[t]echnically, the district court lacked
jurisdiction at that time”); Commonwealth of Puerto Rico v. SS
Zoe Colocotroni, 601 F.2d 39, 41 (1st Cir. 1979) (“district court
may, on its own, proceed to deny the 60(b) motion without
permission of the court of appeals” and “[o]nly if the district
court is inclined to grant the motion need a remand be sought and
obtained”); Fed.R.Civ.P. 62.1.4

As explained by the First

4

Under Fed.R.Civ.P. 62.1, “If a timely motion is made for
relief that the court lacks authority to grant because of an
appeal that has been docketed and is pending, the court may: (1)
defer considering the motion; (2) deny the motion; or (3) state
8

Circuit in Colocotroni, “The district court’s authority to
consider and deny the motion without obtaining leave from the
circuit court is based on the district court’s continuing
jurisdiction during an appeal to act in aid of the appeal.”
Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d at 41
(emphasis added).
It is debatable whether an untimely, subsequent notice of
appeal divests the district court of jurisdiction to grant a Rule
60(b) motion without requesting and obtaining a remand as
instructed in Colocotroni, 601 F.2d at 41, or resorting to Rule
62.1.

See In re Grand Jury Proceedings, 795 F.2d 226, 231 (1st

Cir. 1986) (noting, in context of appeals from “civil contempt”
judgments, that “an untimely, impermissible or frivolous appeal
does not vest jurisdiction in the court of appeals) (emphasis
added); accord Gilda Industries, Inc. v. U.S., 511 F.3d 1348,
1351 (Fed. Cir. 2008) (“[b]ecause Gilda’s notice of appeal was
filed a day late, the notice of appeal was untimely” and “it
neither conferred jurisdiction on this court nor divested the
trial court of jurisdiction”); Arthur Andersen & Co. v.
Finesilver, 546 F.2d 338, 340-41 (10th Cir. 1976) (if “the notice
of appeal is deficient by reason of untimeliness, lack of

either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial
issue.” Fed.R.Civ.P. 62.1 (emphasis added).
9

essential recitals, reference to a non-appealable order, or
otherwise, the district court may ignore it and proceed with the
case”); In re Chevron Corp., 749 F.Supp.2d 170, 179 (S.D.N.Y.
2010) (“judicial divestiture rule does not . . . apply to
untimely or otherwise defective appeals”); see also In re
JPMorgan Chase Mortg. Modification Litig., 2014 WL 6833182, at *1
(D.Mass. Dec. 3, 2014) (“‘[w]here the order in question is
manifestly unappealable, the court of appeals never gains
jurisdiction of it and, consequently, the district court never
loses jurisdiction of it’”), appeal dismissed, (1st Cir. Apr. 29,
2015); but cf. In re Abdallah, 778 F.2d 75, 77 (1st Cir. 1985)
(“[u]ntimely notice of appeal deprives the district court of
jurisdiction to review the bankruptcy court’s order”).
In any event, this court does have the authority to deny the
Rule 60(b) motion (Docket Entry # 43) as well as the remaining
portion of the nunc pro tunc motion (Docket Entry # 40) that
seeks the opportunity to file a motion to reconsider the May 6,
2016 decision and submit related, nunc pro tunc filings.

Thus,

in order to take into account “all relevant circumstances
surrounding the party’s omission,” Pioneer Investment Services
Co. v. Brunswick Associates Limited Partnership, 507 U.S. at 395,
in determining if a denial is warranted, this court directs
defendants to file an affidavit regarding the process or
procedures for the handling of legal mail at SBCC, including the
10

time it typically takes to process incoming legal mail and the
likelihood of lost or delayed receipt of incoming legal mail.
See 103 C.M.R. § 481.12.

The affiant should be an individual

with personal knowledge of the process or procedures and the
affidavit may include additional facts relevant to the Rule 60(b)
motions.

In the event defendants wish to file an opposition to

the motion for release from judgment (Docket Entry # 43), they
must seek and obtain leave of court.

See LR. 7.1(b)(3).

CONCLUSION
In accordance with the foregoing discussion, the “motion to
nunc pro-tunc his notice of appeal” (Docket Entry # 40),
construed as a motion to reopen the time to file an appeal, is
ALLOWED to the extent that plaintiff will have 14 days after the
date this Order is entered to file a notice of appeal.

With

respect to the motion for release (Docket Entry # 43) and the
remaining portion of the nunc pro tunc motion (Docket Entry #
40), defendants are ORDERED to file the above noted affidavit on
or before December 5, 2016.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

11