United States District Court, E.D. California
ORDER FOR PLAINTIFF TO FILE DECLARATION UNDER PENALTY
OF PERJURY, AND OTHER EVIDENCE, AS DESCRIBED BY THIS ORDER
FORTY-FIVE DAY DEADLINE.
March 3, 2017, this case was remanded to this district court
by the Ninth Circuit Court of Appeals, for the limited
purpose of determining the date that appellant, Demetrius
Terrell Freeman,  delivered his notice of appeal to prison
authorities for mailing. (ECF No. 25.) The court was directed
to forward its finding to the Clerk of the Ninth Circuit
Court of Appeals. (Id.) The court now issues this
order pursuant to the Ninth Circuit's directive.
Terrell Freeman (Plaintiff), a federal prisoner proceeding
pro se pursuant to Bivens vs. Six Unknown
Agents, 403 U.S. 388 (1971), filed the Complaint
commencing this action on April 21, 2014. (ECF No. 1.) On
October 31, 2014, the case was dismissed for Plaintiff's
failure to prosecute, and judgment was entered the same day.
(ECF No. 12, 13.) On March 10, 2016, Plaintiff filed a notice
of appeal at the district court, which was processed and
forwarded to the Ninth Circuit Court of Appeals, where it was
assigned case number 15-15452. (ECF No. 19.)
NOTICE OF APPEAL - TIMELY FILING
civil case, the notice of appeal must ordinarily be filed
with the district clerk within thirty days after entry of the
judgment or order appealed from. Fed. R. App. P. 4(a)(1)(A).
However, if an inmate confined in an institution files a
notice of appeal, “the notice is timely if it is
deposited in the institution's internal mail system on or
before the last day for filing and it is accompanied by a
declaration in compliance with 28 U.S.C. § 1746 -- or a
notarized statement - setting out the date of deposit and
stating that first-class postage is being prepaid; or
evidence (such as a postmark or date stamp) showing that the
notice was so deposited and that postage was prepaid.”
Fed. R. App. P. 4(c). “If an institution has a system
designed for legal mail, the inmate must use that system to
receive the benefit of [Rule 4(c)].” Id.
was entered in Plaintiff's case on October 31, 2014, and
Plaintiff's notice of appeal was filed with the district
clerk on March 10, 2015, more than thirty days after entry of
the judgment. (ECF Nos. 13, 19.) Thus, under Rule 4(a)(1)(A)
of the Federal Rules of Appellate Procedure, Plaintiff's
notice of appeal was not timely filed, unless Plaintiff
deposited it in the institution's internal mail system on
or before the last day for filing.
March 17, 2015, the Ninth Circuit Court of Appeals issued an
order requiring Demetrius Terrell Freeman (Appellant) to file
a declaration or notarized statement attesting to the date on
which the notice of appeal was deposited in the
institution's internal mail system and whether first
class postage was prepaid, or otherwise show cause why the
appeal should not be dismissed for lack of jurisdiction.
(Appeal DktEntry No. 3.) On March 26, 2015, Appellant filed a
declaration styled as a letter, attesting that he mailed the
notice of appeal no later than November 1, 2014, by placing
it in the institutional mail system with first class postage
affixed. (Appeal DktEntry No. 4.) The order to show cause was
discharged. (Appeal DktEntry No. 7.)
December 2, 2015, appellees J. Ciufo and A. Martin
(Appellees) filed a motion to dismiss Appellant's appeal
for lack of jurisdiction, on the ground that the appeal was
untimely. (Appeal DktEntry 29-1.) Appellees argued that
Appellant's declaration, filed on March 26, 2015, was
implausible and was not signed under penalty of perjury.
Appellees submitted the declaration of Armenda Boteler,
Supervisory Correctional Systems Specialist at the Federal
Correctional Complex in Pollack Louisiana, (“FCC
Pollock”), who described the system in place for
inmates to send legal mail. (Boteler Decl., Appeal DktEntry
29-15 ¶¶3-6.) Boteler also declared that mailroom
staff at FCC Pollock maintains a log only for certified mail,
and that she reviewed the mail logs for the relevant time
period and found no entries for outgoing
certified mail sent by Appellant during that time period.
(Id. ¶8.) Appellee's motion to dismiss is
court is tasked with determining the date that
Plaintiff/Appellant, Demetrius Terrell Freeman, delivered his
notice of appeal to prison authorities for mailing. To that
end, Plaintiff shall be required to file a declaration at the
district court, describing in detail the process he followed
when submitting his notice of appeal for mailing at the
institution where he was incarcerated at the time.
Plaintiff's declaration must be dated and signed under
penalty of perjury,  providing a detailed account of the
circumstances surrounding Plaintiff's delivery of his
notice of appeal to prison authorities. Plaintiff must
address the following in his declaration:
(1) When and how did you find out your case had been
dismissed? Where were you housed at the time?
(2) When did you write the notice of appeal? Did anyone help
you write it? If so, who? Did you deliver it for mailing on
that same day?
(3) When did you submit the notice of appeal for mailing?
Give the date, time of day, day of the week, whether it was a
holiday, and ...