Case: 16-16049 Date Filed: 05/08/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16049 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-60437-KMW
ERIC WATKINS,
Plaintiff - Appellant,
versus
PLANTATION POLICE DEPARTMENT, William O’Brien, Officer, Defendant - Appellee. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 8, 2018)
Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
Eric Watkins, proceeding pro se, appeals the denial of his motion to file an
out-of-time notice of appeal from an order in his underlying 42 U.S.C. § 1983 civil Case: 16-16049 Date Filed: 05/08/2018 Page: 2 of 8
rights action. He argues that the district court abused its discretion in finding that
he did not show non-receipt of notice of the order. Because Mr. Watkins failed to
adequately show that he did not receive notice of the order in time to file a notice
of appeal, we affirm.
I
On March 7, 2016, Mr. Watkins filed a pro se 42 U.S.C. § 1983 civil rights
complaint against a Plantation, Florida, police officer, alleging that the officer
violated his First and Fourth Amendment rights. Mr. Watkins also filed a motion
for leave to proceed in forma pauperis, which he submitted to the court from his
mailing address in Sunrise, Florida. On April 7, 2016, the district court denied Mr.
Watkins’ motion, concluding that he failed to state a viable First or Fourth
Amendment claim. The order indicated that a copy was to be sent to Mr. Watkins’
address in Sunrise, Florida.
On May 2, 2016, Mr. Watkins filed a motion to set aside the order denying
his motion to proceed in forma pauperis, which the district court construed as a
motion for reconsideration. Mr. Watkins’ motion indicated that it was written on
April 26, 2016, and listed the same mailing address as in the motion to proceed in
forma pauperis. On May 4, 2016, the district court denied the motion, finding no
grounds for reconsideration. The order indicated that a copy was mailed to Mr.
Watkins’ address in Sunrise, Florida.
2 Case: 16-16049 Date Filed: 05/08/2018 Page: 3 of 8
On June 24, 2016, Mr. Watkins filed a motion for leave to file an out-of-time
notice of appeal, alleging that he did not receive notice of the order issued on May
4, 2016, until June 20. In the motion, Mr. Watkins stated that he checked his mail
twice per week and did not receive the order between May 4 and June 20, 2016.
Mr. Watkins also claimed that late delivery of the court’s final orders had been a
recurring issue in many of his cases. He further alleged that the clerk’s office
intentionally delayed mailing the court’s May 4 order to deter him from filing a
timely notice of appeal.
On July 13, 2016, the district court denied Mr. Watkins’ motion for leave to
file an out-of-time notice of appeal, concluding that he failed to adequately show
that he did not timely receive a copy of the May 4 order. The court noted that,
despite his assertions regarding a delay in delivery of the court’s orders, Mr.
Watkins had timely received the court’s initial order denying leave to proceed in
forma pauperis, as evidenced by the fact that Mr. Watkins filed a motion for
reconsideration that was signed less than 30 days after that order issued. The court
added that Mr. Watkins could have appealed that order directly, but chose instead
to file a motion reconsideration. The court also found that Mr. Watkins failed to
corroborate his claim with any evidence, something he might have achieved by, for
example, attaching a copy of the envelope containing the order, which would have
contained a post-marked date. The court further stated that the docket sheet, which
3 Case: 16-16049 Date Filed: 05/08/2018 Page: 4 of 8
did not indicate that any mail was delayed or returned as undeliverable, further
contradicted Mr. Watkins’ assertion that the May 4 order was untimely or
improperly delivered.
Mr. Watkins now appeals the district court’s denial of his motion to file an
out-of-time notice of appeal, arguing that the district court “failed to demonstrate
that [he] could have received the court’s order in a timely manner[.]” Appellant’s
Br. at 9. He specifically asserts that the docket sheet does not confirm when the
order was delivered, that there was no way to provide evidence of the delivery date
because the order was not sent via certified mail, and that the court did not
properly weigh the fact that he “swore under penalty of perjury to his claims.” Id.
at 11. Mr. Watkins asks that we grant him additional time to file a notice of appeal
either under Federal Rules of Appellate Procedure 4(a)(5) or Rule 4(a)(6). 1
II
This Court reviews the denial of a motion to reopen under Rule 4(a)(6) and a
motion for extension of time under Rule 4(a)(5) for abuse of discretion. See
McDaniel v. Moore, 292 F.3d 1304, 1305 (11th Cir. 2002) (Rule 4(a)(6));
1 It should be noted that Mr. Watkins’ notice of appeal designates for review the district court’s July 13, 2016, order denying his motion to file an out-of-time appeal and “all related orders.” D.E. 12 at 1. Mr. Watkins’ brief, however, does not address any order other than the July 13, 2016, order. Accordingly, Mr. Watkins has abandoned any arguments as to any other district court order. See Timson v. Sampson, 518 F.3d 871, 874 (11th Cir. 2008) (holding that, while this court reads briefs filed by pro se litigants liberally, issues not briefed on appeal are deemed abandoned). As such, the only order before this court on appeal is the district court’s July 13 order. 4 Case: 16-16049 Date Filed: 05/08/2018 Page: 5 of 8
Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997 (11th Cir. 1997) (Rule
4(a)(5)). As a result, we will not reverse a decision of the district court unless we
determine that, at a minimum, that court made a clear error in judgment or applied
an incorrect legal standard. See Weatherly v. Ala. State Univ., 728 F.3d 1263, 1270
(11th Cir. 2013).
Generally, to be timely, a notice of appeal in a civil case must be filed in the
district court within 30 days after the entry of the judgment or order. See Fed. R.
App. P. 4(a)(1)(A). The district court may extend the time to file a notice of appeal
if a party moves for an extension no later than 30 days after the initial filing period
expires and the party shows excusable neglect or good cause. See Fed. R. App. P.
4(a)(5). The district court may also reopen the time to file an appeal for a period of
14 days if it finds that (1) the moving party did not receive notice of the entry of
the judgment or order appealed within 21 days after entry; (2) the motion is filed
within 180 days after the judgment or order is entered or within 14 days after the
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 16-16049 Date Filed: 05/08/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16049 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-60437-KMW
ERIC WATKINS,
Plaintiff - Appellant,
versus
PLANTATION POLICE DEPARTMENT, William O’Brien, Officer, Defendant - Appellee. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 8, 2018)
Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
Eric Watkins, proceeding pro se, appeals the denial of his motion to file an
out-of-time notice of appeal from an order in his underlying 42 U.S.C. § 1983 civil Case: 16-16049 Date Filed: 05/08/2018 Page: 2 of 8
rights action. He argues that the district court abused its discretion in finding that
he did not show non-receipt of notice of the order. Because Mr. Watkins failed to
adequately show that he did not receive notice of the order in time to file a notice
of appeal, we affirm.
I
On March 7, 2016, Mr. Watkins filed a pro se 42 U.S.C. § 1983 civil rights
complaint against a Plantation, Florida, police officer, alleging that the officer
violated his First and Fourth Amendment rights. Mr. Watkins also filed a motion
for leave to proceed in forma pauperis, which he submitted to the court from his
mailing address in Sunrise, Florida. On April 7, 2016, the district court denied Mr.
Watkins’ motion, concluding that he failed to state a viable First or Fourth
Amendment claim. The order indicated that a copy was to be sent to Mr. Watkins’
address in Sunrise, Florida.
On May 2, 2016, Mr. Watkins filed a motion to set aside the order denying
his motion to proceed in forma pauperis, which the district court construed as a
motion for reconsideration. Mr. Watkins’ motion indicated that it was written on
April 26, 2016, and listed the same mailing address as in the motion to proceed in
forma pauperis. On May 4, 2016, the district court denied the motion, finding no
grounds for reconsideration. The order indicated that a copy was mailed to Mr.
Watkins’ address in Sunrise, Florida.
2 Case: 16-16049 Date Filed: 05/08/2018 Page: 3 of 8
On June 24, 2016, Mr. Watkins filed a motion for leave to file an out-of-time
notice of appeal, alleging that he did not receive notice of the order issued on May
4, 2016, until June 20. In the motion, Mr. Watkins stated that he checked his mail
twice per week and did not receive the order between May 4 and June 20, 2016.
Mr. Watkins also claimed that late delivery of the court’s final orders had been a
recurring issue in many of his cases. He further alleged that the clerk’s office
intentionally delayed mailing the court’s May 4 order to deter him from filing a
timely notice of appeal.
On July 13, 2016, the district court denied Mr. Watkins’ motion for leave to
file an out-of-time notice of appeal, concluding that he failed to adequately show
that he did not timely receive a copy of the May 4 order. The court noted that,
despite his assertions regarding a delay in delivery of the court’s orders, Mr.
Watkins had timely received the court’s initial order denying leave to proceed in
forma pauperis, as evidenced by the fact that Mr. Watkins filed a motion for
reconsideration that was signed less than 30 days after that order issued. The court
added that Mr. Watkins could have appealed that order directly, but chose instead
to file a motion reconsideration. The court also found that Mr. Watkins failed to
corroborate his claim with any evidence, something he might have achieved by, for
example, attaching a copy of the envelope containing the order, which would have
contained a post-marked date. The court further stated that the docket sheet, which
3 Case: 16-16049 Date Filed: 05/08/2018 Page: 4 of 8
did not indicate that any mail was delayed or returned as undeliverable, further
contradicted Mr. Watkins’ assertion that the May 4 order was untimely or
improperly delivered.
Mr. Watkins now appeals the district court’s denial of his motion to file an
out-of-time notice of appeal, arguing that the district court “failed to demonstrate
that [he] could have received the court’s order in a timely manner[.]” Appellant’s
Br. at 9. He specifically asserts that the docket sheet does not confirm when the
order was delivered, that there was no way to provide evidence of the delivery date
because the order was not sent via certified mail, and that the court did not
properly weigh the fact that he “swore under penalty of perjury to his claims.” Id.
at 11. Mr. Watkins asks that we grant him additional time to file a notice of appeal
either under Federal Rules of Appellate Procedure 4(a)(5) or Rule 4(a)(6). 1
II
This Court reviews the denial of a motion to reopen under Rule 4(a)(6) and a
motion for extension of time under Rule 4(a)(5) for abuse of discretion. See
McDaniel v. Moore, 292 F.3d 1304, 1305 (11th Cir. 2002) (Rule 4(a)(6));
1 It should be noted that Mr. Watkins’ notice of appeal designates for review the district court’s July 13, 2016, order denying his motion to file an out-of-time appeal and “all related orders.” D.E. 12 at 1. Mr. Watkins’ brief, however, does not address any order other than the July 13, 2016, order. Accordingly, Mr. Watkins has abandoned any arguments as to any other district court order. See Timson v. Sampson, 518 F.3d 871, 874 (11th Cir. 2008) (holding that, while this court reads briefs filed by pro se litigants liberally, issues not briefed on appeal are deemed abandoned). As such, the only order before this court on appeal is the district court’s July 13 order. 4 Case: 16-16049 Date Filed: 05/08/2018 Page: 5 of 8
Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997 (11th Cir. 1997) (Rule
4(a)(5)). As a result, we will not reverse a decision of the district court unless we
determine that, at a minimum, that court made a clear error in judgment or applied
an incorrect legal standard. See Weatherly v. Ala. State Univ., 728 F.3d 1263, 1270
(11th Cir. 2013).
Generally, to be timely, a notice of appeal in a civil case must be filed in the
district court within 30 days after the entry of the judgment or order. See Fed. R.
App. P. 4(a)(1)(A). The district court may extend the time to file a notice of appeal
if a party moves for an extension no later than 30 days after the initial filing period
expires and the party shows excusable neglect or good cause. See Fed. R. App. P.
4(a)(5). The district court may also reopen the time to file an appeal for a period of
14 days if it finds that (1) the moving party did not receive notice of the entry of
the judgment or order appealed within 21 days after entry; (2) the motion is filed
within 180 days after the judgment or order is entered or within 14 days after the
moving party receives notice of the entry, whichever is earlier; and (3) no party
would be prejudiced. See Fed. R. App. P. 4(a)(6). Even if all three prongs are met,
however, a district court may, in its discretion, deny a motion to reopen. See Fed.
R. App. P. 4(a)(6).
Here, Mr. Watkins does not specify whether he is seeking relief under Rule
4(a)(5) or Rule 4(a)(6). We have said that, where a pro se litigant alleges that he
5 Case: 16-16049 Date Filed: 05/08/2018 Page: 6 of 8
did not receive notice of the entry of the judgment or order from which he seeks
appeal, the request should be construed as a motion under the “more lenient rule”
for a litigant in such a position—Rule 4(a)(6). See Sanders v. United States, 113
F.3d 184, 186–87 (11th Cir. 1997) (holding, in the context of a motion to
reconsider a dismissal for lack of jurisdiction, that when a pro se appellant alleges
that he did not receive a notice of the judgment or order appealed from, this court
will treat the notice of appeal as a Rule 4(a)(6) motion). Because Mr. Watkins’
motion made no reference to excusable neglect and relied solely on his allegation
that he did not receive timely notice of the May 4 order, we construe his motion, as
the district court did, as a Rule 4(a)(6) motion to reopen. See id.
Mr. Watkins satisfies two of the three requirements of the three-pong test
under Rule 4(a)(6). The second requirement is satisfied because Mr. Watkins filed
his motion to reopen well within the 180-day period provided to file, and within
four days of when he acknowledged receipt of the order. See Fed. R. App. P.
4(a)(6)(B). The third requirement—that no party be prejudiced—is satisfied
because the Plantation Police Department has not expended any resources in
litigating Mr. Watkins’s claim. See Fed. R. App. P. 4(a)(6)(C). Mr. Watkins falls
short, however, as to the first requirement—demonstrating that he did not receive
timely notice of the court’s order. See Fed. R. App. P. 4(a)(6)(A).
6 Case: 16-16049 Date Filed: 05/08/2018 Page: 7 of 8
As the moving party, Mr. Watkins bore the burden of showing non-receipt
or delayed receipt of notice. See Moore, 292 F.3d at 1305. We have recognized
that there is a rebuttable presumption that a properly mailed item was received by
the recipient, and that presumption is triggered upon proof that the item was
properly addressed, had sufficient postage, and was deposited in the mail. See
Konst v. Florida, 71 F.3d 850, 851 (11th Cir. 1996). Here, it is evident that the
copy of the May 4 order was properly addressed, had sufficient postage, and was
deposited in the mail because Mr. Watkins actually did receive it and because the
docket sheet does not reflect that the mailed order was delayed or returned as
undeliverable.
The only evidence produced by Mr. Watkins in support of his allegations
against the clerk’s office is his own sworn statement that he routinely checks his
mailbox and did not receive notice of the May 4 order until June 20. But such
allegations of delayed receipt, without more, do not necessarily rebut the
presumption that a properly mailed item was received by the addressee. See
Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1241–42 (11th Cir. 2002) (holding
that the presumption of delivery is not rebutted where the defendant relied solely
on testimony that an office did not receive notice of plaintiff’s malpractice claim).
Rather than produce other probative evidence to rebut the presumption that
the order was properly mailed and delivered, Mr. Watkins attempts to shift the
7 Case: 16-16049 Date Filed: 05/08/2018 Page: 8 of 8
burden to the district court to affirmatively prove that he timely received a copy of
the order. That burden, however, was his to carry.
Even if Mr. Watkin’s allegations and sworn statement were enough to show
that he did not timely receive notice of the May 4 order, under Rule 4(a)(6), the
district court may, in its discretion, deny a motion to reopen even if all the relevant
conditions of the rule are met. See Fed. R. App. P. 4(a)(6). Moreover, there is no
risk of a miscarriage of justice because the district court dismissed Mr. Watkins
case without prejudice and as such, he is free to attempt to raise his claims in
another § 1983 complaint.
III
The district court did not abuse its discretion when it denied Mr. Watkins’
motion for an extension of time to file a notice of appeal. Accordingly, we affirm.
AFFIRMED.