Schwarzer v. Wainwright et al

Filing 38

ORDER (Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2)

Case 6:18-cv-00034 Document 38 Filed on 08/11/21 in TXSD Page 1 of 2
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
§
§
§
v.
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§
DALE WAINRIGHT; ROBERT
§
BEARD; PAMELA MENDEZ-BANDA; §
BRYAN COLLIER; and JENNIFER
§
SMITH,
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Defendants.
§

August 11, 2021
Nathan Ochsner, Clerk

MARK CLIFF SCHWARZER,
Plaintiff,

Civil Action No. 6:18-cv-34

ORDER
This matter is before the Court on remand from the Fifth Circuit Court of Appeals
to determine the timeliness of Plaintiff Mark Cliff Schwarzer’s (“Schwarzer”) Motion to
Alter Judgment under Rule 59(e) of the Federal Rules of Civil Procedure. (See Dkt.
Nos. 17, 24). His motion is timely if he placed it in the prison mail system on or before
October 30, 2019.
The Court ordered briefing to determine whether Schwarzer timely filed his
motion pursuant to the prison mailbox rule. (Dkt. No. 28). Complying with the Court’s
Order, Schwarzer filed a sworn affidavit stating that he dropped his motion in the prison
mailbox on October 30, 2019; however, because mail placed in the prison mailing system
is processed and recorded in the mail log on the next business day, his motion was
recorded on the mail log as “received” by the mailroom on October 31, 2019. (Dkt. No.
29). The Texas Attorney General, as amicus curiae, has acknowledged that “[m]ail

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Case 6:18-cv-00034 Document 38 Filed on 08/11/21 in TXSD Page 2 of 2

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.” (Dkt. No.
32 at 2).
Based upon the aforementioned evidence, the Court FINDS that Schwarzer timely
deposited his Rule 59(e) motion to alter judgment in the prison mailbox on October 30,
2019.
It is so ORDERED.
Signed on August 11, 2021.

_____________________________________

DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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