Nathan v. Corrections Corporation of America (CCA) et al

Filing 76

ORDER re 67 USCA Order and 61 Notice of Appeal. The Court finds that Plaintiff delivered his Notice of Appeal to prison officials for mailing on October 27, 2016. This case shall be returned to the Court of Appeals for further proceedings. Signed by Magistrate Judge Michael T. Parker on April 25, 2017. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
SHELDON NATHAN

PLAINTIFF

v.

CIVIL ACTION NO. 5:14-cv-119-MTP

CORRECTIONS CORPORATION OF AMERICA

DEFENDANT

ORDER
THIS MATTER is before the Court on the Order [67] of the United States Court of
Appeals for the Fifth Circuit. On September 21, 2016, this Court entered its Final Judgment [52]
dismissing Plaintiff’s action with prejudice. On November 14, 2016, Plaintiff filed a Notice of
Appeal [61]. The Notice of Appeal was dated October 17, 2016, but, as evidenced by the
envelope that encased the Notice of Appeal, it was postmarked and mailed on October 27, 2016.
On February 22, 2017, the United States Court of Appeals for the Fifth Circuit directed
this Court to determine whether the Notice of Appeal was deposited in the correctional
institution’s internal mail system on or before the last day for filing an appeal—October 21,
2016. This Court then directed the custodian of the legal mail log at the Marshall County
Correctional Facility to furnish to the Court a copy of said log from October 17, 2016, through
October 27, 2016. See Order [68].
In response to the Order [68], the Marshall County Correctional Facility provided the
legal mail log from October 13, 2016, through November 2, 2016. See Response [70]. The mail
log includes entries for “Sheldon Nathan” on October 27, 2016. The Court found that the mail
log alone did not establish whether the Notice of Appeal was deposited in the internal mail
system on October 27, 2016, or was simply mailed on that date. Accordingly, the Court directed
each party to file a response, presenting argument and evidentiary materials establishing the date

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on which Plaintiff deposited his Notice of Appeal in the Marshall County Correctional Facility’s
internal mail system.
On April 10, 2017, Plaintiff filed his Response [73]. Plaintiff does not state when he
deposited his Notice of Appeal in the internal mail system, but appears to argue that the Notice
of Appeal was timely.1 However, Plaintiff also argues that even if the Notice of Appeal were
untimely, he did not intentionally delay its filing. Plaintiff states that he was in administrative
segregation prior to his release and “maybe” that was “a qualifying factor for the delayed
response.”
On April 19, 2017, Defendant filed its Response [75], along with an affidavit from
Bernice Brown, the custodian of the legal mail log at the Marshall County Correctional Facility.
In her affidavit, Brown states as follows:
When I receive the legal mail from an inmate I log the date I receive such mail on
the “Inmate Legal Assistance Mail Log” in the first column for “Date.” See MCCF
Filing of Mail Log at 2 (Doc. #70). I then take the mail to the mail room for
stamping and mailing. I always take the mail to the mail room for mailing on the
same day I receive the mail from the inmate. In other words, I never hold legal
mail overnight.
The “Inmate Legal Assistance Mail Log” for the period covering October 13, 2016
to November 2, 2016 shoes that I received legal mail from Inmate Sheldon Nathan
on October 27, 2016, which is the same day I send the mail out. See MCCF Filing
of Mail Log at 3 (Doc. #70).
See Brown Affidavit [75-1] at 2.
Based on the materials filed of record, the Court finds that Plaintiff delivered his
Notice of Appeal to prison officials for mailing on October 27, 2016. This case shall be

Plaintiff states that he “filed a timely motion into the mailing system which is clearly out of his
hands . . . .”

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returned to the court of appeals for further proceedings, or dismissal, as may be
appropriate.
SO ORDERED this the 25th day of April, 2017.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE

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