United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE
case is now before the court on remand from the Eleventh
Circuit Court of Appeals for two determinations as set forth
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.
filed a notice of appeal on October 20, 2018. 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.
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).
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.).
court now must determine the second question: whether
reopening of the appeal period under Federal Rule of
Appellate Procedure 4(a)(6) is merited.
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) 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).
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
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.
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 ...