United States District Court, M.D. Alabama Northern Division.
H. THOMPSON UNITED STATES DISTRICT JUDGE
January 11, 2019, the Eleventh Circuit remanded this action
to the district court with the following instructions:
"This appeal is REMANDED, sua sponte, to the
district court for the limited purpose of determining: (1)
whether Appellant Brent Jacoby filed a prior, timely notice
of appeal, and (2) if not, whether he merits reopening of the
appeal period under Federal Rule of Appellate Procedure
4(a)(6). Mr. Jacoby's notice of appeal, dated October 20,
2018, is untimely to appeal from the district court's
August 29, 2018 order granting summary judgment to the
defendants on his 42 U.S.C. § 1983 complaint. 28 U.S.C.
§ 2107(a); Fed. R. App. P. 4(a)(1)(A), (c)(1); Green
v. Drug Enf't Admin., 606 F.3d 1296, 1300-01 (11th
Cir. 2010); see also Daniels v. United States, 809
F.3d 588, 589 (11th Cir. 2015).
"However, in his notice of appeal, Mr. Jacoby indicates
that his mail was not reaching the district court and that
his mail had been two or three weeks late in getting to him.
He also states that he filed a prior notice of appeal in the
case, though no such notice had been docketed. Thus, there
are factual questions as to whether Mr. Jacoby filed a prior,
timely notice of appeal, and if he did not, whether reopening
of the appeal period under Fed. R. App. P. 4(a)(6) is
merited. Fed. R. App. P. 4(a)(6); Sanders v. United
States, 113 F.3d 184, 186 n.2, 187 (11th Cir. 1997).
"Upon making its determinations, the district court
shall return the case, as supplemented, to this Court for
Circuit Remand Order (doc. no. 72).
court first turns to whether plaintiff Jacoby filed a prior,
timely notice of appeal. Upon careful review of the record,
it appears that on August 1, 2018, he filed a document
entitled “Motion for a Continuance To File Objections
and or a Notice of Appeal of the Magistrate Judge
Recommendations to dismiss my Claim in Whole” (doc. no.
The clerk of court docketed this filing as a “motion
for continuance to file objections” but did not treat
it as a containing a notice of appeal, and this court did not
recognize it as an appeal notice at the time. However, even
if the court back then had treated that document as
containing a notice of appeal (or even were to do so now),
the notice would not benefit Jacoby now. The notice was filed
after entry of the magistrate judge's recommendation but
about a month before entry of the final judgment adopting the
recommendation. Because the magistrate judge's
recommendation was not final and appealable, the notice of
appeal “was not valid to perfect the appeal as of the
date of the district court's judgment.”
Perez-Priego v. Alachua Cty. Clerk of
Court, 148 F.3d 1272, 1273 (11th Cir. 1998). Therefore,
the court concludes that, while Jacoby did file an earlier
notice of appeal, it was not a timely appeal as to the
judgment he now seeks to overturn.
to the second issue, Federal Rule of Appellate Procedure
4(a)(6) allows the district court to “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 the court
makes certain findings. The court must find: (A) that the
moving party did not receive notice under Federal Rule of
Civil Procedure 77(d) of the entry of the judgment within 21
days after entry; (B) that the motion is filed within 180
days after the entry of judgment or 14 days after the moving
party receives notice under Rule 77(d) of the entry,
whichever is earlier; and (C) that no party would be
prejudiced by reopening the time to file an appeal.
See Fed. R. App. P. 4(a)(6). Even if all three
conditions are met, “the district court may, in its
discretion, deny a motion to reopen.” Watkins v.
Plantation Police Dep't, 733 Fed.Appx. 991, 995
(11th Cir. 2018).
October 20, 2018, Jacoby filed his “second notice of
appeal” (doc. no. 67) from the court's August 29,
2018, judgment (doc. no. 66). In the notice, he represents that
his mail has been handled improperly and repeatedly delivered
two to three weeks late, preventing him from receiving timely
notice of the judgment. See Notice of Appeal (doc.
no. 67). However, he does not state the date upon
which he received the court's August 29 judgment. The
docket sheet shows that the judgment was mailed to Jacoby at
Bibb Correctional Facility on the day it was entered.
knowing when Jacoby received the judgment, the court cannot
determine whether it may, under Rule 4(a)(6), reopen the time
for an appeal. In particular, although it is clear that
Jacoby's second notice of appeal came within 180 days of
the entry of judgment, it is not clear (1) whether Jacoby
received notice of the judgment within 21 days of entry, or
(2) whether he filed his second notice of appeal within 14
days of receiving notice of the judgment. That information is
necessary to determine whether Jacoby has satisfied the time
periods in Rule 4(a)(6)(A) and (B).
the foregoing, it is ORDERED that plaintiff Brent Jacoby is
allowed until March 27, 2019, to submit to this court any
evidence of the “exact date” he received notice
of the court's August 29, 2018, judgment (doc. no. 66).
If plaintiff Jacoby files a statement as evidence, the
statement should be sworn, that is, under oath, or should be
presented in the form of a declaration under penalty of
perjury pursuant to 28 U.S.C. § 1746. If the court
does not hear from plaintiff Jacoby within the time allowed,
the court will assume that his appeal was untimely.
 Under the “mailbox rule, ”
the court deems the notice of appeal filed on the date Jacoby
delivered it to the prison authorities for mailing. See
United States v. Hughes, 432 F.Supp.2d 1250, 1251 n.1
(M.D. Ala. 2006) (Thompson, J.). Because Jacoby affirmed in a
certificate of service that he mailed the document on that