Oliver v. Dept. of Corrections

• Court: Court of Appeals for the First Circuit
• Decided: August 2, 1994
• Docket: 94-1063
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 94-1063

TERRY OLIVER,

                                Plaintiff, Appellant,

                                          v.

             COMMISSIONER OF THE MASS. DEPARTMENT OF CORRECTIONS, ET AL.,

                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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                                 ___________________

               Terry Oliver on brief pro se.
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               Nancy Ankers White, Special Assistant Attorney  General, and
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          David J. Rentsch, Counsel, Department of Correction, on brief for
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          appellees.

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                                    August 2, 1994
                                  __________________

Per Curiam.  Pro  se plaintiff-appellant Terry Oliver, a
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            federal   prisoner  in  the   custody  of  the  Massachusetts

            Department  of  Corrections  [DOC],  brought  a  civil rights

            action,   pursuant  to   42  U.S.C.      1983,   against  the

            Commissioner and other  officials of  the DOC in  1989.   The

            district  court granted  the defendants'  motion for  summary

            judgment on May 23, 1991, and entered judgment on May 30.  On

            June  21, Oliver  filed  a "Motion  to  Vacate, and  to  Make

            Additional  Findings  of  Fact,  and  For Reconsideration  of

            Plaintiffs'  Motion for  Partial  Summary Judgment."1    This

            motion  was denied  on September  10, 1992.   On  October 19,

            1992, Oliver filed a  "Motion to File Late Appeal  and Notice

            of Appeal."  On  February 25, 1993, this court  dismissed the

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            1.  If  this  motion had  been served  within ten  days after
            entry of judgment, see  Fed. R. Civ. P. 59(e), it  would have
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            tolled the time for  filing the notice of appeal.   Feinstein
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            v. Moses, 951  F.2d 16, 18 (1st Cir.  1991).  Oliver contends
               _____
            that this motion should be  considered timely because he only
            received a copy of the court's decision from prison officials
            on June  10.  He asserts  that any delay in  transmitting the
            final  judgment to him should  be excluded from  the time for
            filing the motion to amend.  See United States v.  Grana, 864
                                         ___ _____________     _____
            F.2d  312, 316 (3d Cir.  1989) (time for  filing 59(e) motion
            tolled when prison delay  interferes with prisoner's  receipt
            of final judgment); but  see Feinstein, 951 F.2d at  19 (time
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            for filing Rule 59  motion can only be tolled  when appellant
            reasonably relied on assurance  of district court that motion
            was  timely).   We need  not  resolve this  issue here.   The
            "timeliness  of  a  Rule  59  motion  to  amend  judgment  is
            determined  by the  date it  is served,  not the  date  it is
            filed."   Perez-Perez  v. Popular  Leasing Rental,  Inc., 993
                      ___________     _____________________________
            F.2d  281, 283  (1st Cir.  1993).   In this  case, defendants
            claim,  and Oliver  has  not contested,  that  they were  not
            served  until November  12, 1991,  well  after even  the time
            limit for filing suggested by Oliver.  

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appeal for having  been untimely  filed pursuant  to Fed.  R.

            App.  P. 4(a)(1).  After rehearing, this court granted Oliver

            the  opportunity to present evidence in the lower court as to

            whether he  delivered a  timely  notice of  appeal to  prison

            officials for mailing.  

                 Oliver's  subsequent "Motion  to File  Notice of  Appeal

            Nunc  Pro Tunc,  And  Notice of  Appeal"  was denied  by  the

            district court on December  17, 1993.  The court  found that,

            apart  from Oliver's  own statement,  "nothing in  the record

            supports plaintiff's assertion that he had in fact instituted

            the mailing procedures with respect to the Notice of Appeal."

            Oliver appeals this denial.

                                          I

                 According to Oliver's affidavit, on June 18, 1991, while

            confined  in  administrative detention  at the  United States

            Penitentiary at Lewisburg, Pennsylvania,  he left a notice of

            appeal in an  envelope in  the door  of his  cell for  prison

            officials to  mail "via regular  first-class mail."    Oliver

            concedes  that he made no attempt to  use the prison mail log

            system for legal mail.  According to Oliver, the envelope was

            mistakenly addressed to the Clerk  of the United States Court

            of Appeals for  the First Circuit.  This court  has no record

            of having received this  notice of appeal and Oliver  has not

            produced a copy of the document.  

                                          II

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Ordinarily,  a notice of appeal in a civil case to which

            the federal sovereign is not a Party is timely filed if it is

            received by the  district court within thirty  days after the

            entry  of judgment, Fed. R.  App. P. 4(a)(1),  or thirty days

            thereafter if  the time  period is  extended by  the district

            court  for "excusable neglect or good cause," Fed. R. App. P.

            4(a)(5).   See Kaercher  v. Trustees  of Health &  Hospitals,
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            Inc.,  834 F.2d 31, 33 (1st Cir.  1987).  However, in Houston
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            v.  Lack, 487 U.S. 266  (1988), the Supreme  Court created an
                ____

            exception  to this  rule.    Under  Fed.  R.  App.  P.  4(c),

            therefore, an inmate's  notice of appeal "is timely  filed if

            it is deposited in  the institution's internal mailing system

            on or before the last  day for filing," rather than  when the

            notice of  appeal is received by the clerk of the court.  The

            Supreme Court  relied in  part  on the  fact that  a "pro  se
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            prisoner has no choice  but to entrust the forwarding  of his

            notice of appeal to prison authorities whom he cannot control

            or supervise and who may have every incentive to delay."  Id.
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            at  271.   The  Court further  reasoned that,  because prison

            authorities "have well-developed procedures for recording the

            date and time at which they receive papers for mailing, . . .

            making filing turn of  the date the pro se  prisoner delivers
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            the notice to prison authorities for mailing is a bright-line

            rule, not an uncertain one."  Id. at 275.
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Oliver concedes that  he was aware  that only mail  sent

            via certified, registered, insured,  COD, or express mail was

            officially  recorded by  the prison  staff.   He nevertheless

            chose  to send his notice  of appeal via  regular first class

            mail.  By  failing to take advantage  of the prison  mail log

            system, Oliver undermined the "bright-line rule" rationale on

            which  the Supreme Court in  Houston relied and  made it more
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            difficult   for   this  court   to  "avoid   uncertainty  and

            chicanery,"  Miller v. Sumner, 921 F.2d 202, 203-04 (9th Cir.
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            1990).   Other courts have  held that a  pro se prisoner  who
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            fails to avail himself  of the prison log system  forgoes the

            advantage of the  special filing  rule.  Id.  at 203;  United
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            States v. Leonard, 937 F.2d 494, 495 (10th Cir. 1991).  
            ______    _______

                 We need not go so  far.2  Even if we assume  that Oliver

            must  only show  that he  submitted the  notice of  appeal to

            prison authorities before the filing deadline, whether he did

            so is a factual finding for the  district court.  See Hostler
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            v. Groves, 912 F.2d 1158, 1162 (9th Cir. 1990), cert. denied,
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            498  U.S. 1120 (1991).  In this  case, the only evidence that

            Oliver  has offered  is his  unsupported  affidavit.   On the

            other  hand,  he has  not produced  a  copy of  the purported

            notice of  appeal and made no reference  to having previously

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            2.  Unlike  the  appellants  in  Miller, 921  F.2d  202,  and
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            Leonard, 937  F.2d  494,  each  of whom  posted  the  notices
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            themselves  in  the  regular  prison  mail,  Oliver allegedly
            submitted his letter to prison officials for mailing.  

                                         -5-

filed  a notice of appeal when,  in October 1992, he moved in

            this  court to file a "late appeal."  In these circumstances,

            we cannot say  that the district court  committed clear error

            in  finding that  Oliver did  not submit  a timely  notice of

            appeal.  See Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087
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            (1st Cir. 1993) (district court findings of fact reviewed for

            clear error).

                 The district court order denying Oliver's motion to file

            his notice of appeal nunc  pro tunc is affirmed.  The  appeal
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            from the  district court  order granting summary  judgment to

            defendants  is  dismissed  for  lack of  jurisdiction.    See
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            Browder v. Director, Dep't of  Corrections, 434 U.S. 257, 264
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            (1978) (filing  of timely notice of  appeal is jurisdictional

            requirement); Gochis  v. Allstate  Ins. Co.,  16 F.3d  12, 15
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            (1st Cir. 1994) (same).

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