United States District Court, M.D. Alabama, Northern Division
JASON J. HALL, #252 285, Plaintiff,
KIM THOMAS, COMMISSIONER,, Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge
order of limited remand entered by the United States Court of
Appeals for the Eleventh Circuit on February 27, 2018, this
court was directed to make a determination resolving the
factual question of when Plaintiff Jason Hall delivered to
prison authorities for mailing his notice of appeal from the
District Court's September 12, 2017, judgment granting
Defendants' motion for summary judgment. Hall v.
Thomas, et al., Court of Appeals No. 17-14831-K. The
Honorable Harold Albritton, Senior United States District
Judge, referred this matter to the undersigned for a Report
and Recommendation, pursuant to 28 U.S.C. §636,
containing proposed findings of fact on the issue presented
by the Eleventh Circuit's limited remand. Doc. 56. In
accordance with the court's orders of March 1, 2018, and
April 23, 2018, Defendants filed supplemental evidentiary
material to assist in resolving this factual question.
See Docs. 57, 62.
Hall filed this 42 U.S.C. § 1983 action alleging
violations of his Eighth and Fourteenth Amendment rights
stemming from alleged unconstitutional conditions of
confinement at the Ventress Correctional Facility in Clayton,
Alabama. On July 7, 2017, the undersigned recommended that
Defendants' motion for summary judgment be granted. Doc.
40. On September 12, 2017, the District Judge adopted the
undersigned's Report and Recommendation, overruled
Hall's objections, and ordered that summary judgment be
granted in favor of Defendants. Doc. 46. On the same day, the
court entered a final judgment for Defendants. Doc. 47.
October 27, 2017, the court received and file-stamped a
typewritten notice of appeal from Hall dated October 10,
2017. Doc. 48. The envelope containing Hall's notice of
appeal was postmarked on October 26, 2017. Id. at 3.
A “proof of service” attached to Hall's
notice of appeal, signed under penalty of perjury, states
that Hall mailed a copy of the appeal notice to
Defendants' counsel by placing the envelope containing
the notice “inside the box marked legal mail outside
the Shift Command Office at the Bullock Correctional Facility
and using the ‘free legal mail system' on the
10th day of October, 2017.”
Id. at 2 (emphasis in original).
explained above, the Eleventh Circuit remanded this matter
with the direction to this court to make a factual
determination regarding when Hall delivered his notice of
appeal to prison authorities for mailing to the Clerk of this
Court. The appellate court's order on remand states that
under 28 U.S.C. § 1746, [Hall] declared that he
delivered the [notice of appeal] to prison authorities for
mailing to defendant's counsel, and did not refer to the
clerk of the district court. And although the envelope filed
with the notice of appeal has the district court's
address, a stamp, and a postmark for October 26, 2017, the
declaration stated that Hall was using the prison's free
legal mail system (presumably as opposed to pre-paying for
postage) and that he was mailing the filing on October l0.
Thus, it is unclear on this record whether Hall delivered the
filing for mailing to the district court on October 10 and,
therefore, filed his notice of appeal on that date.
See Fed. R. App. P. 4(c)(1)(A)(i).
Doc. 55 at 2.
remand, the court entered an order on March 1, 2018,
directing Defendants to file supplemental evidence, including
affidavits, regarding the free legal mail system at Bullock
and the date on which Hall delivered his notice of appeal to
prison officials for mailing or placed it in the prison mail
system. Doc. 57. Defendants complied with the March 1 order.
After review of the information submitted, the court directed
the filing of additional evidence, including affidavits and
applicable documents, pertaining to inmates' use of the
regular outgoing mail system, legal or otherwise. Doc. 62.
The court's orders directing the filing of the
supplemental evidentiary material gave Hall the opportunity
to respond to those submissions. See Docs. 57, 62.
Hall has filed nothing in response.
evidentiary submissions filed by Defendants include an
affidavit from Olivia Hicks, the Administrative Support
Assistant I/Mail Clerk at Bullock, and a copy of the legal
mail log maintained at Bullock for October 2017. Hicks
testifies that inmates at Bullock may deposit outgoing mail
in one of two boxes. One mailbox is marked “legal
mail” and one is marked “Reg. Mail.”
Inmates may receive two free stamps a month for mailing legal
mail. The legal mail box is in front of the Shift
Commander's office. Inmates who seek to use the
“free mail system” must place their legal mail in
the legal mailbox. Inmates who affix their own postage to
legal mail may deposit such mail either in the legal mailbox
or the regular mailbox. Docs. 61-1, 63-1.
indicates that “[a]t the time the Plaintiff sent his
notice of appeal, mail in the ‘Reg. Mail' box was
picked up daily, sorted, and placed in the U.S. Mail.”
Doc. 63-1. Mail placed in the legal mailbox, stamped or
unstamped, is picked up every Thursday morning by a
correctional officer who delivers the contents to the
mailroom. When unstamped legal mail is sorted at the
mailroom, the correspondence is listed on the institutional
legal log. The legal log includes the name and institutional
number of the inmate sending the correspondence, the name and
address to which the correspondence is sent, the number of
stamps used, and the date the stamps were issued and the
correspondence was mailed. Legal mail which goes through this
process is mailed out from the institution every Tuesday.
Hicks indicates that an item of legal mail deposited in the
legal mailbox which already has postage affixed is placed in
the U.S. Mail on the same day it reaches her office, as such
mail is not weighed, stamped, or checked for sufficient
postage. Docs. 61-1, 63-1.
legal mail log maintained at Bullock during the month of
October 2017 reflects that Hall submitted only one piece of
un-stamped legal mail during that month. The log shows that
on Tuesday, October 31, 2017, Hall was provided one free
stamp for legal mail; the mail was addressed to
Defendants' counsel at the legal division of the Alabama
Department of Corrections in Montgomery, Alabama. Hicks
explains that because legal mail is collected from the legal
mailbox on the Thursday prior to its being mailed the
following Tuesday, Hall would have had to place his unstamped
legal mail addressed to ADOC counsel in the legal mailbox
between Friday, October 20, 2107, and Thursday, October 26,
2017. Doc. 61-1. Because the log reflects that Hall did not
receive a free stamp for the only piece of un-stamped legal
mail that he submitted in October until October 31, 2017, and