Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Patino-Restrepo v. Department of Justice

United States District Court, District of Columbia

September 29, 2018

CARLOS ARTURO PATINO-RESTREPO, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         Plaintiff Carlos Arturo Patino-Restrepo, who is incarcerated and is proceeding pro se in this Freedom of Information Act case, seeks to appeal this court's March 30, 2017 order, ECF No. 23, granting summary judgment to Defendants. Because federal entities are parties to this litigation, the deadline for filing a notice of appeal from the order was May 29, 2017. See Fed. R. App. P. 4(a)(1)(B)(ii) (allowing sixty days to appeal an order involving a federal entity). Plaintiff dated his Notice of Appeal May 25, 2017, and the clerk's office stamped the document “received” on June 12, 2017, eighteen days after the appeal deadline had passed. See ECF No. 24. The Court of Appeals subsequently ordered Plaintiff to show cause why the appeal should not be dismissed as untimely. See ECF No. 28.

         Although the case docket indicates that the summary judgment order was mailed to Plaintiff the same day it was entered (March 30, 2017), Plaintiff responded to the Court of Appeals' show cause order with a declaration asserting that he did not receive the district court's order via mail. ECF No. 29, Pls. Decl. n.1. Plaintiff attached to his declaration an “Inmate Request to Staff” form, in which a prison staff member verified that prison records indicated Plaintiff had not received any legal mail between March 30 and April 26, 2017. Id. n.1; id. Attachment A. Plaintiff explains that the dates on the form cover “the period in which the judgment was entered and would have been forwarded by the Clerk's Office.” Id. n.1.

         Plaintiff does not recall the precise date on which he learned of the March 30 order, and his declaration is confusing in that regard. In one part of the declaration he states: “The notice of appeal is dated May 25, 2017. It is Appellant's belief that this is the date in which the [Electronic Law Library (“ELL”)] system was updated during the month of May.” Id. n.3. In another part of the declaration, he states he is “certain that he received notice” of the March 30 order between May 23 and May 30. Id. ¶ 2. Plaintiff claims that the prison where he is located updates the ELL with cases from Lexis during the final week of each month, but only with cases published by the twenty-first day of the preceding month. Id. n.2. Because this court issued its order after March 21, it was not available on the ELL until the last week of May. Id.

         After receiving Plaintiff's declaration, the Court of Appeals remanded the case to this court to determine two questions:

1) Whether Plaintiff's notice of appeal and declaration, when considered together, constitute either a Rule 4(a)(5) motion for extension of time to appeal or a Rule 4(a)(6) motion to reopen the time to file an appeal?
2) If so, whether the motion should be granted.

ECF No. 28.

         Before addressing these questions, the court notes that the issues raised here may be moot. Applying the “mailbox” rule set forth in Houston v. Lack, 487 U.S. 266 (1988), it is unclear whether Plaintiff's Notice of Appeal was untimely. In Houston, the court stamped an incarcerated pro se plaintiff's notice of appeal “received” one day after the appeal deadline had passed. Id. at 268. But prison mail logs established that plaintiff had delivered the notice of appeal to prison officials within the time-period for filing an appeal. Id. at 268-69. Because the plaintiff had no choice but to entrust the forwarding of mail to prison authorities, the court adopted the “mailbox rule, ” holding that the “notice of appeal was filed at the time [he] delivered it to the prison authorities for forwarding to the court clerk.” Id. at 275-76 (citing Fed. R. App. P. 4(a)); cf. Loper v. Reed, No. 93-5065, 1993 WL 318881, at *1 (D.C. Cir. Aug. 3, 1993) (dismissing appeal for lack of jurisdiction because the notice of appeal was untimely and noting that there was no “evidence that appellant complied with the requirements of Houston v. Lack 487 U.S. 266 (1988)”).

         Applying the mailbox rule here, Plaintiff's Notice of Appeal was timely if he delivered it to prison authorities for forwarding to the court by May 29, 2017. But there is no evidence in the record regarding whether he did so. Accordingly, there is insufficient evidence in the record that Plaintiff's Notice of Appeal was timely.

         A. Federal Rule of Appellate Procedure 4(a)(5): Motion for Extension of Time

         Rule 4(a)(5) allows the district court to extend the time for filing an appeal, so long as the motion for the extension is filed within thirty days after the deadline for filing the notice of appeal.[1] Although Plaintiff's Notice of Appeal was date stamped received within thirty days after the May 29 appeal deadline, Defendants argue that Plaintiff's “notice” of appeal cannot substitute for a Rule 4(a)(5) “motion” seeking an extension of the deadline to appeal.

         “[T]his Circuit has not considered the issue, ” but “eleven circuits have considered whether a notice of appeal can be treated as a motion for extension of time under Rule 4(a)(5) and all have answered in the negative.” Bradac v. Jewell, No. CV 13-455 (RBW), 2014 WL 12664800, at *1 n.1 (D.D.C. Aug. 20, 2014) (alterations and internal quotation marks omitted) (citing Hickey v. Scott, 987 F.Supp.2d 85, 89 (D.D.C. 2013)); see United States ex rel. Green v. Serv. Contract Educ. & Training Trust Fund, 863 F.Supp.2d 18, 20-21 (D.D.C. 2012). Rather than reach a decision on the Rule 4(a)(5) issue here, this court will analyze the facts under Rule 4(a)(6).

         B. Federal Rule of Appellate Procedure 4(a)(6): Reopening the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.