Schwarzer v. Wainwright et al

Filing 33

ORDER FOR ADDITIONAL BRIEFING The Court ORDERS the Texas AG to reconcile and clarify its arguments in a brief to be filed by June 25, 2021.(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2)

Case 6:18-cv-00034 Document 33 Filed on 06/17/21 in TXSD Page 1 of 3
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
MARK CLIFF SCHWARZER,
Plaintiff,
v.
BOBBY LUMPKIN; TRAVIS WHITE;
and PATRICK O’DANIEL,
Defendants.

MARK CLIFF SCHWARZER,
Plaintiff,
v.
DALE WAINRIGHT; ROBERT BEARD;
PAMELA MENDEZ-BANDA; BRYAN
COLLIER; and JENNIFER SMITH,
Defendants.

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June 17, 2021
Nathan Ochsner, Clerk

Civil Action No. 6:18-cv-00029

Civil Action No. 6:18-cv-00034

ORDER FOR ADDITIONAL BRIEFING
Before the Court is Defendants Bobby Lumpkin and Travis White’s Brief in Response to
ECF No. 49: Order for Additional Briefing, filed through the Texas Attorney General’s Office
(“Texas AG”) in Schwarzer v. Lumpkin et al., 6:18-cv-29, and the Texas AG’s Amicus Curiae
Advisory Regarding Date of Plaintiff Mark Schwarzer’s Appeal, filed in Schwarzer v. Wainwright
et al., 6:18-cv-34. (6:18-cv-29, Dkt. No. 52); (6:18-cv-34, Dkt. No. 32). In both actions, the Court
ordered briefing to determine whether Schwarzer timely filed certain papers pursuant to the prison
mailbox rule. See (6:18-cv-29, Dkt. No. 49); (6:18-cv-34, Dkt. No 28).

Case 6:18-cv-00034 Document 33 Filed on 06/17/21 in TXSD Page 2 of 3

Complying with the Court’s orders, Schwarzer claimed that mail dropped off in the prison
mailing system is processed and recorded in the mail log on the next business day. (6:18-cv-29,
Dkt. No. 51 at 2); (6:18-cv-34, Dkt. No. 29 at 2). This practice, according to Schwarzer, explains
why the papers he allegedly dropped off on October 30, 2019 and December 8, 2020—the
deadlines for such papers to be mailed if Schwarzer wanted them timely filed—were recorded on
the mail log as “received” by the mailroom on October 31, 2019 and December 9, 2020,
respectively. Id.
For its part, the Texas AG, as counsel in 6:18-cv-29 and as amicus curiae in 6:18-cv-34,
similarly complied in both cases but offered contradictory claims and arguments regarding the
mailing procedures employed by the prison Schwarzer is incarcerated in. Compare (6:18-cv-29,
Dkt. 52 at 2 (“Schwarzer signed his objections on December 8, 2020 and claims that he placed his
objections in the prison mail system on the same day. However, Schwarzer’s objections were
postmarked on December 9, 2020 and the outgoing mail log attached to Schwarzer’s brief shows
that his objections were received in the mailroom on December 9, 2020. Thus, Schwarzer’s
objections should be found to have been filed on December 9, 2020 and the Court should find his
objections untimely filed.”) (citations omitted)) with (6:18-cv-34, Dkt. No. 32 at 2 (“According to
mail logs attached as Exhibit A, Mr. Schwarzer[] sent mail on October 31, 2019 . . . . Mail received
after hours is processed the next day and therefore the mail log is consistent with Mr. Schwarzer’s
claim he placed his motion in the mail on October 30, 2019[,]” thereby making his papers timely
filed) (citations omitted)). Therefore, the Court ORDERS the Texas AG to reconcile and clarify
its arguments in a brief to be filed in both actions by June 25, 2021.
It is SO ORDERED.
Signed this 17th of June, 2021.

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Case 6:18-cv-00034 Document 33 Filed on 06/17/21 in TXSD Page 3 of 3

_____________________________________

DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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