Blacher v. Diaz

• Court: District Court, S.D. California
• Decided: June 14, 2023
• Docket: 3:20-cv-01270
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLON BLACHER, Case No.: 20cv1270-LAB-MDD CDCR #G-50077, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 MOTION TO REOPEN THE TIME TO vs. APPEAL 14

15 RALPH DIAZ, et al., 16 Defendants. 17

18 19 This matter is before the Court on remand from the Ninth Circuit regarding 20 Plaintiff Marlon Blacher’s Notice of Appeal to the Ninth Circuit, in which he alleges 21 that he did not receive notice of the entry of the Court’s July 22, 2022 judgment 22 until August 18, 2022. (See Dkt. 57). Construing Blacher’s Notice of Appeal as a 23 Motion to Reopen the Time to Appeal (“Motion”) pursuant to Federal Rule of 24 Appellate Procedure 4(a)(6), the Ninth Circuit stayed proceedings in the pending 25 appeal and remanded the matter to this Court for the limited purpose of resolving 26 the Motion to Reopen. (See Dkt. 60 (citing U.S. v. Withers, 638 F.3d 1055 (9th Cir. 27 2011)). After carefully considering the Ninth Circuit’s instructions and Blacher’s 28 arguments, the Court GRANTS the Motion. 1 I. BACKGROUND 2 Marlon Blacher, a state prisoner proceeding pro se and in forma pauperis 3 (“IFP”), initiated this civil rights action on July 6, 2020, pursuant to 42 U.S.C. 4 § 1983. (Dkt. 1). On September 23, 2020, the Court granted his IFP motion, 5 screened his Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, 6 dismissed some of his claims, and directed the U.S. Marshal to effect service upon 7 the remaining Defendants pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. 8 P. 4(c)(3). (Dkt. 5). 9 On November 19, 2020, the Clerk of the Court received Blacher’s Notice of 10 Change of Address to a prison located in Tampa, Florida. (Dkt. 13). On 11 December 31, 2020, Defendants filed an Answer to the Complaint. (Dkt. 19). 12 Blacher then filed a Motion to Appoint Counsel, (Dkt. 22), which was denied by 13 Magistrate Judge Mitchell Dembin on February 4, 2021, (Dkt. 23). Thereafter, in 14 response to Defendants’ ex parte motion to modify the scheduling order, 15 Judge Dembin issued an Order Setting Briefing Schedule on Defendants’ Motion. 16 (Dkt. 25). This Order was served on Blacher at the Tampa address on file, but was 17 returned by the carrier as “Undeliverable” and “Return to Sender, No Such 18 Number, Unable to Forward.” (Dkt. 26). 19 The Court then issued a temporary stay of the case, noting that Blacher was 20 “out-to-court in Florida, where he has multiple other cases pending.” (Dkt. 28). This 21 Order was again returned to the Court as “Undeliverable” and “Return to Sender, 22 Attempted-Not Known, Unable to Forward.” (Dkt. 32). Blacher subsequently filed 23 three different notices of change of address, indicating a change in his location to 24 the same address in Land O’ Lakes, Florida. (Dkt. 33, 34, 38). Following monthly 25 status reports from Defendants, and given Blacher’s continued status as 26 out-to-court in Florida, the Court twice more renewed the stay. (Dkt. 37, 40). 27 On February 1, 2022, Defendants filed a Motion for Summary Judgment for 28 failure to exhaust administrative remedies, (Dkt. 45), as well as a motion to stay 1 merits-based discovery and the remaining deadlines in the operative Scheduling 2 Order, (Dkt. 46). The Court granted the motion to stay, (Dkt. 53), and the Order 3 was mailed to Blacher but was once again returned as “Undeliverable” and “Return 4 to Sender, Not Deliverable as Addressed, Unable to Forward.” (Dkt. 54). 5 On July 22, 2022, the Court granted Defendant’s motion for summary 6 judgment, dismissing the entire case. (Dkt. 55). The Clerk of the Court then entered 7 judgment against Blacher. (Dkt. 56). On August 30, 2022, Blacher filed a Notice of 8 Appeal, in which he stated that he didn’t receive the Court’s July 22, 2022 judgment 9 until August 18, 2022.1 (Dkt. 57). Given Blacher’s representation, the Ninth Circuit 10 construed the notice of appeal “as a motion to reopen pursuant to Federal Rule of 11 Appellate Procedure 4(a)(6).” (Dkt. 60 at 1). The Ninth Circuit then remanded the 12 appeal to this Court “for the limited purpose of allowing th[is] court to rule on 13 [Blacher]’s August 30, 2022 motion to reopen the time for appeal.” (Id.). The Ninth 14 Circuit stayed briefing pending this Court’s decision. (Id. at 2). 15 Defendants filed an Opposition to the Motion to Reopen the Time for Appeal. 16 (Dkt. 63). Blacher then filed a reply in support of his Motion. (Dkt. 66). With the 17 Court’s leave, (Dkt. 67), Defendants filed a Sur-Reply in response to specific points 18 raised for the first time in Blacher’s Reply brief, (Dkt. 68). 19 II. LEGAL STANDARD 20 Federal Rule of Appellate Procedure 4 governs the filing of appeals in civil 21 cases. A notice of appeal generally must be filed “within 30 days after entry of the 22 judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). “The 30-day time 23 limit of Rule 4(a) is mandatory and jurisdictional.” Hays v. Hamlet, 587 F. App’x 24 430, 430 (9th Cir. 2014) (quoting Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir. 25 1981)). However, Rule 4(a) permits the district court to reopen the time to file an 26 27 1 The Notice of Appeal was signed by Blacher on August 23, 2022, and 28 1 appeal under limited circumstances. Rule 4(a)(6) provides: 2 The district court may reopen the time to file an appeal for 3 a period of 14 days after the date when its order to reopen 4 is entered, but only if all the following conditions are satisfied: 5 6 (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of 7 the entry of the judgment or order sought to be appealed 8 within 21 days after entry;

9 (B) the motion is filed within 180 days after the judgment 10 or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil 11 Procedure 77(d) of the entry, whichever is earlier; and 12 (C) the court finds that no party would be prejudiced. 13 14 Fed. R. App. P. 4(a)(6). 15 The purpose of Rule 4(a)(6) is to “soften the harsh penalty of losing one’s 16 right to appeal due to the government’s malfeasance in failing to notify a party of 17 a judgment, not to limit a party’s statutory right to appeal the district court’s final 18 decision on the merits.” Arai v. Am. Bryce Ranches, Inc., 316 F.3d 1066, 1070 19 (9th Cir. 2003) (citing Nunley v. City of Los Angeles, 52 F.3d 792, 795 (9th Cir. 20 1995)). “While Rule 4(a)(6) puts the burden on the moving party to demonstrate 21 nonreceipt, the rule does not mandate a strong presumption of receipt.” Nunley, 22 52 F.3d at 795. A party’s “specific factual denial of receipt” is sufficient to rebut the 23 presumption of receipt under the common law mailbox rule. Id. at 796; see also 24 Schikore v. BankAmerica Supplemental Retirement Plan, 269 F.3d 956, 964 n.7 25 (9th Cir. 2001) (same). “When a movant specifically denies receipt of notice, a 26 district judge must then weigh the evidence and make a considered factual 27 determination concerning receipt, rather than denying the motion out of hand 28 based upon proof of mailing.” Nunley, 52 F.3d at 796. 1 III. ANALYSIS 2 Under Rule 4(a)(1)(A), a notice of appeal is timely if it is filed within 30 days 3 after the entry of the order or judgment that is the subject of the appeal. Fed. R. 4 App. P. 4(a)(1)(A). Here, this Court’s judgment was entered on July 22, 2022, but 5 Plaintiff’s Notice of Appeal wasn’t filed until August 30, 2022. In support of their 6 opposition to the motion, Defendants attach the Declaration of M. Garcia, an 7 employee of and Mail Room Agent at the Pasco County Jail in Land O’ Lakes, 8 Florida, where Blacher is incarcerated. (See Dkt. 63-1). Garcia represents that 9 Blacher’s legal mail logs demonstrate that the judgement was delivered to the jail 10 on July 29, 2022. (Id., Ex. A at 7). Garcia states that “officers in the housing units 11 are responsible for delivering the mail to the specific inmates, but they generally 12 do this the same day that the housing unit receives the mail during mail pass.” (Id. 13 ¶ 3). In response, Blacher contends that just because the Order was delivered to 14 the jail on July 29, 2022, that doesn’t mean he actually received it on that day. 15 (Dkt. 66 at 1). He maintains that he didn’t receive the Order until August 18, 2022. 16 (Id.). 17 First, while it appears that the Order was delivered to Pasco County Jail on 18 July 29, 2022, the Court is unable to confirm (other than by the parties’ respective 19 say-so) whether and when that Order actually made it into Blacher’s possession. 20 Blacher attempts to introduce various alleged grievances signed by himself and 21 other inmates regarding issues with the jail’s mail system. (Dkt. 64). Defendants 22 vehemently contest the validity of these so-called grievances, arguing that they 23 were never received by the jail, nor do they display any stamps or writings 24 indicating their receipt. (See Dkt. 68). Indeed, there is no indication in any of 25 Blacher’s attachments that these letters/forms were delivered to a jail official or 26 lodged with the jail through a formal grievance process. The Court notes that there 27 are even delineated sections on various of these forms that are specifically 28 designated for a jail staff response and signature, but are completely blank. 1 (Dkt. 64-5 at 3, 64-6 at 4). Nevertheless, the Court notes multiple mail delivery 2 complications associated with Pasco County Jail throughout the entirety of this 3 case, and it is presently unclear what other mail delays occurred internally at the 4 jail. Although the Court is dubious of Blacher’s assertions that he made previous 5 grievances to the jail regarding their failure to properly deliver his mail, the Court 6 is unable to conclude with certainty that he in fact received the Order on the day it 7 was delivered to the jail. And in light of Blacher’s assertions otherwise, the Court 8 finds that Blacher has offered a “specific factual denial of receipt” of the judgment 9 prior to the 30-day period for appeal. Nunley, 52 F.3d at 796. This is sufficient to 10 rebut the presumption of receipt under the common law mailbox rule. See id. 11 Accordingly, the Court finds that the first condition of Rule 4(a)(6) is satisfied. See 12 Fed. R. App. P. 4(a)(6)(A) (“[T]he moving party did not receive notice under 13 Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought 14 to be appealed within 21 days after entry.”). 15 Additionally, this Court’s judgment was entered on July 22, 2022. Thirty days 16 after entry of judgment would be August 21, 2022. Blacher’s Notice of Appeal is 17 dated August 23, 2022, and date-stamped by the mail service on August 24, 2022. 18 The notice was filed on the docket on August 30, 2022—only nine days after the 19 filing deadline and twelve days after Blacher claims he received notice of the 20 judgment. This satisfies the requirements of Rule 4(a)(6)(B). Lastly, the Court 21 notes there is no indication that any party would be prejudiced by the granting of 22 the instant motion. Therefore, this condition isn’t at issue. Fed. R. App. 23 P. 4(a)(6)(C). 24 Accordingly, the Court finds that Blacher has satisfied the requirements of 25 Rule 4(a)(6) and reopens the time for Blacher to file a timely appeal. 26 IV. CONCLUSION 27 The motion to reopen time to appeal pursuant to Federal Rule of Appellate 28 Procedure 4(a)(6) is GRANTED. In accordance with the Ninth Circuit’s 1 ||instructions, the Clerk of the Court is directed to serve a copy of this Order on the 2 ||Ninth Circuit. Plaintiff does not need to file a new notice of appeal. 3 IT IS SO ORDERED. l (buy 4 ||Dated: June 14, 2023 df 4 Wy 5 Hon.LarryAlanBurns ts” 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 me mmm □□