Jacoby v. Thomas

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         This case is now before the court on remand from the Eleventh Circuit Court of Appeals for two determinations as set forth below.

         I.

         This court entered a judgment granting defendants' motion for summary judgment on August 29, 2018. See Jacoby v. Thomas, No. 2:15cv367-MHT, 2018 WL 4119998 (M.D. Ala. Aug. 29, 2018) (Thompson, J.). Pursuant to Federal Rule of Appellate Procedure 4(a), Jacoby was required to file a notice of appeal within 30 days of entry of the judgment. His 30 days ran on September 28, 2018.

         Jacoby filed a notice of appeal on October 20, 2018.^[1] In the notice of appeal, he complained that his mail had been “two and three weeks” late getting to him “constantly for over two months.” Notice of Appeal (doc. no. 67) at 1.

         In Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997), the Eleventh Circuit held that, “when a pro se appellant alleges that he did not receive notice of the entry of the judgment or order from which he seeks to appeal within twenty-one days of its entry, we must treat his notice as a Rule 4(a)(6) motion and remand to the district court for a determination of whether the appellant merits an extension under that rule.” In accordance with Sanders, on January 11, 2019, the Eleventh Circuit remanded this action to this 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).” 11th Circuit Remand Order (doc. no. 72).

         II.

         As to the first question, this court previously determined that Jacoby did not file a prior, timely notice of appeal as to the judgment he now seeks to overturn. See Jacoby v. Thomas, No. 2:15cv367-MHT, 2019 WL 952570 (M.D. Ala. Feb. 27, 2019) (Thompson, J.).

         III.

         The court now must determine the second question: whether reopening of the appeal period under Federal Rule of Appellate Procedure 4(a)(6) is merited.

         Rule 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 that: (A) the moving party did not receive notice under Federal Rule of Civil Procedure 77(d)^[2] of the entry of the judgment within 21 days after entry; (B) the motion to reopen the time for filing 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) 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). “The burden of proving non-receipt (or in this case, delayed receipt) of notice is on the party seeking to reopen the time for appeal under Rule 4(a)(6).” McDaniel v. Moore, 292 F.3d 1304, 1307 (11th Cir. 2002).

         The application of the rule turns on when Jacoby received the judgment. While Jacoby has been unable to present documentation of the exact date on which he received the judgment, the court concludes based on the evidence in the record that he received the judgment on October 10, 2018, at the earliest.

         Jacoby has submitted to the court a log of his incoming mail, provided by prison authorities, that appears to show that the clerk of this court mailed him three envelopes that were postmarked August 29, 2018, and that these letters were received in the prison's mailroom on September 7, 2018. See Attachment to Motion for a Continuance to Obtain More Records (doc. no. 82-1) at 4. The judgment in this case was entered on that day, so it appears that one of these letters was the judgment.

         Jacoby also submitted a declaration under penalty of perjury attesting that the delivery of his legal mail had been repeatedly delayed for about two to three weeks after receipt by the prison mailroom. See Declaration of Brent Jacoby (doc. no. 83-1) at 1-2. He also attests that the prison is “out of control, very understaffed, and stays on lock down.” Id. at 2. Jacoby also submitted the declaration of Dennis Bishop III, a fellow prisoner in his unit, who attests that he has experienced a delay of over 21 days to receive legal mail from his attorney. See Declaration of Dennis Bishop III (doc. no. 83-1). While the declaration is not a model of clarity, Bishop explains how the process for distribution of prison mail at Bibb Correctional Facility leads to serious delays in receipt of mail. First, after legal mail has been received by the mail room, a prisoner's name must be placed on a newsletter, and this takes at least a week in his experience. Even after placement of the prisoner's name in the newsletter, there may be a delay before staff call prisoners out of the housing unit to pick up their mail. Mail distribution occurs at the ...