Sherrod v. Parsons et al

Filing 23

ORDER finding that Plaintiff's Notice of Appeal was not timely filed re 14 Notice of Appeal. Signed by Chief Judge Frank D. Whitney on 10/3/16. (Pro se litigant served by US Mail.)(clc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-00068-FDW
MARION LAMONT SHERROD,
Plaintiff,
v.

LAWRENCE PARSONS; JEFFREY
WALL; KIERNAN SHANAHAN;
K. GOODWIN, Correctional Officer,
Defendants.

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ORDER

THIS MATTER is before the Court on consideration of Plaintiff’s Declaration regarding
the date on which he contends he filed a notice of appeal from orders entered by this Court on
June 1 and June 22, 2015, which orders determined the Plaintiff, who is a prisoner of the State of
North Carolina, had failed to state a claim for deprivation of civil rights under 42 U.S.C. § 1983.
(Doc. Nos. 8, 11).
The North Carolina Department of Public Safety (NC DPS), through counsel, has filed a
redacted copy of the prison mailing log-in sheet from Maury Correctional Institution (CI) where
Plaintiff has been housed since August 20, 2014, and at the time he filed his civil complaint and
his motion for reconsideration. The log-in sheet provides evidence that Plaintiff submitted a
document to prison authorities for mailing on July 14, 2015, that was addressed to NC Prisoner
Legal Services in Raleigh, North Carolina. The log-in sheet does not identify the nature of the
document. (Doc. No. 21-1 at 4). However, in his Declaration, Plaintiff explains that he did not
personally deliver the notice of appeal, or what he terms “Motion for Relief of the Judgement
[sic], Declaration and Notice of Appeal” (Notice of Appeal) to prison authorities at Maury CI; but
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rather he enlisted a fellow inmate, Arthur Goulette, to submit the documents to the prison
authorities. (Doc. No. 22: Declaration at 2). While the evidence submitted by the NC DPS does
show that an inmate by the name of Arthur Goulette signed the log-in sheet on July 14, 2015,
there is no indication in the redacted log that shows what mail was delivered to prison authorities
by Goulette nor is the intended recipient apparent. (Id.).
In any event, the Court finds that (1) the Clerk noted in the ECF Docket that the order of
dismissal and denial of reconsideration were mailed to Plaintiff on the day the respective orders
were filed; (2) there is no evidence that those orders were ever returned as undeliverable to the
Clerk’s Office; (3) Plaintiff admits that he did not personally submit the Notice of Appeal to
prison authorities; (4) there is no indication as to what document(s) Inmate Goulette submitted;
(5) there is no statement by Inmate Goulette that has been filed with the Clerk’s Office
acknowledging that he in fact submitted the Notice of Appeal to prison authorities; and finally,
(6) there is no record that the Notice of Appeal that was allegedly entrusted to Inmate Goulette
ever reached the Clerk’s Office.
Rule 4(c)(1) of the Federal Rules of Appellate Procedure provides that a prisoner’s notice
of appeal is deemed timely filed if it is deposited in the prison’s designated mail system “on or
before the last day for filing.” In addition, the prisoner must use the designated mail system. Here,
the evidence before the Court demonstrates that Plaintiff never personally submitted the Notice of
Appeal to prison authorities. After having conducted the review required by the Fourth Circuit’s
limited remand, the Court finds that Plaintiff’s Notice of Appeal was not timely filed.
SO ORDERED.
Signed: October 3, 2016

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