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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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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
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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
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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
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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
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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
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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).
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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.
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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
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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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