Rivera v. Virginia Department Of Corrections et al

Filing 110

OPINION & ORDER finding that Rivera submitted his post-trial motion on January 4, 2017. The court concludes that Rivera's Notice of Appeal was timely filed and the clerk SHALL return the record as hereby supplemented to the court of appeals for further consideration of Rivera's appeal. Signed by Judge James P. Jones on 10/6/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

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DENIS RIVERA,
Plaintiff,
v.
VIRGINIA DEPARTMENT OF
CORRECTIONS, ET AL.,
Defendants.

Case No. 7:15CV00156
OPINION AND ORDER
By: James P. Jones
United States District Judge

The plaintiff, Denis Rivera, a Virginia inmate proceeding pro se, filed this
prisoner civil rights action under 42 U.S.C. § 1983. I entered an Opinion and Order
granting summary judgment to the defendants on December 8, 2016, and Rivera
appealed. The court of appeals remanded the case for the limited purpose of determining:
(a) when Rivera delivered his Motion to Alter or Amend Judgment to prison officials for
mailing; and (b) whether his Notice of Appeal was timely filed.
Rivera filed his Notice of Appeal on March 1, 2017. Prior to filing his Notice of
Appeal, however, Rivera filed the Motion to Alter or Amend Judgment under Fed. R.
Civ. P. 59(e) that this court received and docketed on January 9. In order for the Rule
59(e) motion to render Rivera’s Notice of Appeal timely filed as to the underlying
judgment, he must have filed that motion on or before January 5. Fed. R. App. P.
4(a)(4)(A)(v).

Because Rivera is incarcerated, the motion is considered filed as of the

date it was properly delivered to prison officials for mailing to the court. Houston v.
Lack, 487 U.S. 266 (1988).

Rivera has now submitted a statement signed under penalty of perjury
alleging that he signed and dated his Rule 59(e) motion on January 4, 2017, and on
that same day, delivered the motion to prison officials in an envelope prepared for
mailing to the court. The Rule 59(e) motion (ECF No. 96) on the court’s docket is
signed and dated in this manner. The defendants have not filed evidence to the
contrary in the time allotted.
Based on the evidence now in the record, I find that Rivera submitted his
post-trial motion on January 4, 2017. That motion was thus properly considered
under Rule 59(e). Fed. R. App. P. 59(e). I denied the motion by Opinion and Order
entered February 3, 2017. At that point, pursuant to Fed. R. App. P. 4(a)(1)(A) and
4(a)(4)(A)(v), Rivera had 30 days to file his Notice of Appeal. He timely delivered

this document to prison officials on March 1, 2017. On these facts, I conclude that
Rivera’s Notice of Appeal was timely filed.
Pursuant to the conditions of the remand, it is ORDERED that the clerk
SHALL return the record as hereby supplemented to the court of appeals for
further consideration of Rivera’s appeal.
ENTER: October 6, 2017
/s/ James P. Jones
United States District Judge
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