Oliver v. Commissioner of the Mass. Department of Corrections

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

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.

Terry Oliver on brief pro se.

Nancy Ankers White, Special Assistant Attorney General, and

David J. Rentsch, Counsel, Department of Correction, on brief for

appellees.

August 2, 1994

Per Curiam. Pro se plaintiff-appellant Terry Oliver, a

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

1. If this motion had been served within ten days after
entry of judgment, see Fed. R. Civ. P. 59(e), it would have

tolled the time for filing the notice of appeal. Feinstein

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

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,

Inc., 834 F.2d 31, 33 (1st Cir. 1987). However, in Houston

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

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.

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

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

difficult for this court to "avoid uncertainty and

chicanery," Miller v. Sumner, 921 F.2d 202, 203-04 (9th Cir.

1990). Other courts have held that a pro se prisoner who

fails to avail himself of the prison log system forgoes the

advantage of the special filing rule. Id. at 203; United

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

v. Groves, 912 F.2d 1158, 1162 (9th Cir. 1990), cert. denied,

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

2. Unlike the appellants in Miller, 921 F.2d 202, and

Leonard, 937 F.2d 494, each of whom posted the notices

themselves in the regular prison mail, Oliver allegedly
submitted his letter to prison officials for mailing.

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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

(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

from the district court order granting summary judgment to

defendants is dismissed for lack of jurisdiction. See

Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264

(1978) (filing of timely notice of appeal is jurisdictional

requirement); Gochis v. Allstate Ins. Co., 16 F.3d 12, 15

(1st Cir. 1994) (same).

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