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Freeman v. Martin

United States District Court, E.D. California

March 24, 2017

DEMETRIUS TERRELL FREEMAN, Plaintiff,
v.
A. MARTIN, et al., Defendants. Appeal No. 15-15452

          ORDER FOR PLAINTIFF TO FILE DECLARATION UNDER PENALTY OF PERJURY, AND OTHER EVIDENCE, AS DESCRIBED BY THIS ORDER FORTY-FIVE DAY DEADLINE.

         On 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, [1] 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.

         I. BACKGROUND

         Demetrius 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.)

         II. NOTICE OF APPEAL - TIMELY FILING

         In a 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.

         Judgment 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.

         III. PROCEDURAL HISTORY

         On 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.)

         On 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[2] and found no entries for outgoing certified mail sent by Appellant during that time period. (Id. ¶8.) Appellee's motion to dismiss is pending.

         IV. DISCUSSION

         This 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, [3] 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 ...

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