United States District Court, E.D. California
FINDINGS OF FACT BY DISTRICT COURT ORDER FOR CLERK TO
SERVE THESE FINDINGS ON THE CLERK FOR THE NINTH CIRCUIT COURT
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
findings are submitted to the Clerk of the Ninth Circuit
Court of Appeals in response to the Ninth Circuit's
directive. On March 3, 2017, the Ninth Circuit issued an
order remanding this case to the district court 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.)
April 21, 2014, Demetrius Derrell Freeman, a federal prisoner
proceeding pro se, filed case number
1:14-cv-00575-LJO-GSA-PC, Freeman v. Martin, at the
United States District Court for the Eastern District of
California. (Complaint, ECF No. 1.) On October 31, 2014, the
court dismissed the case for Plaintiff's failure to
prosecute. (ECF No. 12.) On March 10, 2015, Plaintiff filed a
notice of appeal, which was forwarded to the Ninth Circuit
and assigned case number 15-15452. (ECF No. 19-21.)
March 3, 2017, the Ninth Circuit remanded the case to the
district court. (ECF No. 25.)
PLAINTIFF'S APRIL 29, 2017, DECLARATION
determine the date at issue, the court issued an order on
March 27, 2017, requiring Plaintiff to file a declaration
under penalty of perjury, describing in detail the process he
claims he followed when submitting his notice of appeal for
mailing at the institution where he was incarcerated at the
time. (ECF No. 27.) The court set forth ten questions for
Plaintiff to address in the declaration. (Id.) On
May 3, 2017, Plaintiff filed the declaration, which he dated
April 29, 2017, and signed under penalty of perjury. (ECF No.
30.) Plaintiff provided the following responses to the
court's ten questions:
When and how did you find out your case had been dismissed?
Where were you housed at the time? What was your reaction?
Plaintiff: I found out my case was
dismissed while in transit to USP Pollock. I was housed in
the transit center in Oklahoma City, Oklahoma.
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
Plaintiff: I wrote the notice of
appeal in late October 2014, and made mention of it in a
motion filed in February, either document 16 or 17. The
notice of appeal was referred to as a “motion, ”
of this I am almost certain. (The notice of appeal was
written in late October.)
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 any other description of the day.
Plaintiff: I submitted the notice
of appeal November 1st, 2014, a Saturday.
did you submit the mail at the institution? If to a staff
member or other person, give the title and name. If you
don't know the name, give a description of the person.
there any conversation by you or others at the time?
Describe. Where were you when you submitted the mail?
Plaintiff: I submitted the notice
of appeal for mailing by having it placed in the
institution's “internal mail system” in C-3
housing unit, pursuant to Fed R. App. P. 4(a)(1)(A).
you did not submit the notice of appeal to a staff member or
other person, where and how did you deliver it for mailing?
Was anyone else present when you delivered it? Did anyone
know you were going to deliver the mail? Who? What were the
Plaintiff: Same response as answer
What type of envelope did you use? Was the envelope sealed
when you delivered it? Was postage affixed? Did you send ...