Thomas v. South Carolina Department of Corrections et al

Filing 32

ORDER reopening the period for filing a notice of appeal. Petitioner shall have 14 days from the filing date of this order to re-file a notice of appeal. Signed by Honorable David C Norton on 4/13/15. (akob, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
CHARLES EDWARD THOMAS,

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Plaintiff,
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vs.
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SOUTH CAROLINA DEPARTMENT OF )
CORRECTIONS; JON OZMINT,
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former prison director; MEDICAL
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DIVISION; FINANCIAL RECORDS, in
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their individual and official capacities
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Defendants.
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No. 0:14-cv-00302-DCN

ORDER

This matter is before the court on remand from the United States Court of Appeals for the
Fourth Circuit to determine whether the petitioner, Charles Edward Thomas (“Thomas”), is
entitled to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6). For the
reasons set forth below, the court finds it appropriate to reopen the appeal period for 14 days.
I. BACKGROUND
Thomas filed this civil action pro se on February 5, 2014. On May 12, 2014, the
Magistrate Judge issued a Report and Recommendation (“R&R”) recommending summary
dismissal of this action. Thomas filed a timely written objection to the R&R. On May 28, 2014,
this court entered its judgment adopting the R&R, thereby dismissing the action. On October 21,
2014, Thomas filed a motion with the Fourth Circuit Court of Appeals, in which he inquired
about the status of his objections to the R&R. The Fourth Circuit construed the motion as a
notice of appeal, finding that the motion suggested that Thomas did not receive notice of this
court’s order adopting the R&R. The Fourth Circuit then remanded the case to determine
whether Thomas can satisfy the requirements of Rule 4(a)(6).
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II. DISCUSSION
Federal Rule of Appellate Procedure 4(a)(6) provides that the “district court may reopen
the time to file an appeal for a period of 14 days after the date when its order to reopen is
entered,” but only if certain conditions are satisfied. To qualify under this subdivision, Thomas,
as the movant, must establish that: (1) he did not receive notice of the entry of judgment under
Federal Rule of Civil Procedure 77(d) within 21 days of its entry; (2) he moved within 180 days
of entry of the judgment or within 14 days of his receipt of notice of the entry under Federal Rule
of Civil Procedure 77(d), whichever is earlier; and (3) no party would be prejudiced by the
extension. Fed. R. App. P. 4(a)(6).
After careful review, the court finds that Thomas has complied with the standards set
forth in Rule 4(a)(6). As an initial matter, “the record does not conclusively show when
[Thomas], currently housed in a correctional facility, received notice that his action had been
dismissed.” James v. Cohen, No. 907-cv-4163, 2009 WL 4585251, at *1 (D.S.C. Nov. 30, 2009)
(finding the reopening of the time to file an appeal appropriate under Rule 4(a)(6) given the
petitioner’s declaration that he first received notice of the order dismissing his case more than 21
days after its entry). Thomas’s motion indicates that he did not receive notice of the entry of the
judgment dismissing his claims within 21 days of its entry. In addition, Thomas filed his motion
within 180 days of the entry of the judgment, and there is no evidence that any party would be
prejudiced by reopening the time to appeal. Accordingly, the court finds that under the standards
set forth in Federal Rule of Appellate Procedure 4(a)(6), the period for filing a notice of appeal
should be reopened for 14 days.

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III. CONCLUSION
The period for filing an appeal in this matter is therefore reopened. Thomas shall have 14
days from the filing date of this order to re-file a notice of appeal.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

April 13, 2015
Charleston, South Carolina

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