Jenkins v. Burtzloff, 94-3243

• Decision Date: 31 October 1995
• Docket Number: No. 94-3243,94-3243
• Citation: 69 F.3d 460
• Parties: Anthony Ray JENKINS, Plaintiff-Appellant, v. Jill BURTZLOFF and Linda Triggs, Defendant-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 460

69 F.3d 460

33 Fed.R.Serv.3d 800

Anthony Ray JENKINS, Plaintiff-Appellant, v. Jill BURTZLOFF and Linda Triggs, Defendant-Appellees.

No. 94-3243.

United States Court of Appeals Tenth Circuit.

Oct. 31, 1995.

Carl E.K. Johnson, Denver, Colorado, for Plaintiff-Appellant.

Kenneth R. Smith, Department of Social Services, Topeka, Kansas, for Defendant-Appellee.

Before EBEL and McKAY, Circuit Judges, and COOK, District Judge ^*.

H. DALE COOK, Senior District Judge.

I. INTRODUCTION

The plaintiff, Anthony Ray Jenkins, brought an action ostensibly under 42 U.S.C. Sec. 1983. The district court held that Jenkins' complaint was, in essence, a petition for a writ of habeas corpus and dismissed it for failure to exhaust state remedies by an order dated April 28, 1994 and filed the same date. ¹ Jenkins alleges that because of transfers from facility to facility while he was in continuous custody he did not receive his copy of the order in the mail until after he was returned to the Seward County Jail on July 12, 1994. He also alleges that he mailed his notice of appeal on the same date; the notice of appeal was date stamped by the court clerk: July 20, 1994.

Jenkins' appeal was dismissed for untimeliness but was reopened upon his petition for rehearing and he was appointed counsel to discuss, along with such other issues as he might consider appropriate, the issue whether the delay in Jenkins' receipt of the district court order should be considered in determining the timeliness of the appeal.

After an examination of the record on appeal and other relevant papers filed with us in this case we conclude that even if we accept as true the unverified allegations in Jenkins' papers he failed to meet the requisite time limits for appealing and for moving to extend the time for appeal. In short, we cannot address the merits of his appeal because we lack jurisdiction over the case.

II. WHEN TIME FOR APPEAL BEGINS TO RUN UNDER HOUSTON V. LACK

In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) the Supreme Court held that the date of "filing" of a notice of appeal by a prisoner appearing pro se is the date the prisoner turns over the notice of appeal to prison officials for mailing. The Court noted in its opinion the lack of control that the prisoner has over his mail once it has left his hands; and the question arises whether a similar reasoning might require the time limit for filing a notice of appeal to be calculated from the date the prisoner receives notice of the entry of the order from which he or she appeals.

In United States v. Grana, 864 F.2d 312 (3d Cir.1989) the Third Circuit held that the logic of Houston applied in reverse. The court held that delays in the receipt of mail by a prisoner caused by prison officials should not be counted in determining when the time period for appeal begins to run, just as delays after the mailing of a notice of appeal are not counted in determining whether the time limit has been overstepped.

After due consideration of the Third Circuit's reasoning and the arguments made in this case we have determined that we are unable to apply the Grana interpretation of Houston to this case. Although many or even all of the policy arguments of Houston may apply here an attempt to apply the legal justification of the Houston holding to the delay in delivery to the prisoner in the case before us is like trying to put a square peg in a round hole.

Although Grana was a criminal case, the case it relied upon, Houston, was, like the case before us, a civil case. The rationale of Houston was not constitutional or equitable in nature; rather, it was based on an interpretation of the word "filed" in the rule and statute governing the timeliness of notices of appeal. The Court held that a notice of appeal could be deemed timely "filed" upon delivery to the prison authorities for mailing. In order to apply this kind of statutory interpretation in reverse we would have to look to the language determining when the time for appeal begins to run and whether that beginning point could be construed to be the time when the prisoner receives notice of the entry of the order to be appealed from.

F.R.A.P. 4(a)(1) provides that a notice of appeal in a civil case generally may be filed "within 30 days of the date of entry of the judgment or order appealed from." (emphasis added) 28 U.S.C. Sec. 2107 similarly provides that in such a case a notice of appeal may be filed "within thirty days after the entry of such judgment, order or decree." The date of entry is the beginning point for when the time period begins to run and the question is whether the word "entry" can be construed differently in the case of prisoners who are pro se litigants. For a number of reasons it cannot be so construed.

Rule 4(a)(7) defines entry, providing that a judgment or order is "entered" under Rule 4(a) when entered in compliance with Rules 58 and 79(a). Rule 79(a), in turn, provides that the clerk shall keep a book in which all "orders, verdicts, and judgments shall be entered." The Supreme Court has interpreted the Rules to provide that entry means entry on the docket. Acosta v. Louisiana, 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986). ² We realize that the Rules of Appellate Procedure do not purport to affect the jurisdiction of this court. FED.R.APP.P. 1(b). However, we see no reason why any different definition of "entry" should apply under 28 U.S.C. Sec. 2107.

Even if there were no definition of the word "entry" in the Federal Rules of Appellate Procedure we would not find it a reasonable definition of "entry" that the date of entry of a notice of appeal could be the date upon which it is received by a prisoner because such a construction defies the plain language of 28 U.S.C. Sec. 2107. The absurdity of such a definition could be seen most clearly where a single order or judgment applies to several parties who are incarcerated. The date of entry for a single order could be different for each of the incarcerated parties.

Where a paper is deemed filed on the date it is mailed there is one filing date for the document so there is no similar problem. Although when a paper is deemed served ³ on a particular party on the date it is mailed there may be more than one date of service for each party, service is a concept that relates to individuals and documents simultaneously while entry is a concept that relates solely to the document. When a court clerk is asked what the entry date is of an order or judgment it should not be necessary for the clerk to give a different answer depending on who asks the question. Accordingly, we hold that Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) does not affect the date on which the time for appeal begins to run.

III. RULE OF APPELLATE PROCEDURE 4(a)(6)

We next address the question whether Jenkins' appeal is timely under the provisions of 28 U.S.C. Sec. 2107 and FED.R.APP.P. 4(a). Both provisions require that a notice of appeal be filed within thirty days of the entry of a judgment, order or decree and both contain exceptions to this time limit. 28 U.S.C. Sec. 2107(c) provides (in part):

"[I]f the district court finds--

(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days after entry of the judgment or order or within 7 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal."

The Federal Rules of Appellate Procedure contain a similar exception:

"The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal."

FED.R.APP.P. 4(a)(6).

There is no dispute that Jenkins failed to file a motion for extension or any document resembling such within the required seven day period. Jenkins did file a notice of appeal that is stamped by the clerk eight days after the date on which he alleges he received notice of the entry of the order below. We will assume, solely for purposes of argument, that his allegations are true and that he mailed the notice of motion the same day he received notice. We will further assume that if the notice of appeal he filed had been instead a motion for extension of time that the motion would have been timely. Even assuming all of that, we would still be compelled by established Tenth Circuit precedent to dismiss his appeal because the filing of his notice of appeal cannot be treated as the equivalent of the filing of a notice of motion for extension of time where a request for additional time is not manifest. This is the rule we have applied to pro se litigants seeking relief under Rule 4(a)(5)--which has a 30 day time limit for appeal worded similarly to the 7 day time limit in Rule 4(a)(6). Senjuro v. Murray, 943 F.2d 36 (10th Cir.1991); Mayfield v. United States Parole Comm'n, 647 F.2d 1053 (10th Cir.1981). ⁴ We now hold that the rule of these cases for construing notices of appeal as notices of motion under Rule 4(a)(5) also applies under Rule 4(a)(6).

We have examined Jenkins' notice of appeal and found nothing in it remotely suggesting a request for extension of time or even a recognition of the lateness problem. Subsequent documents dealing with these issues were filed in this court long past the deadline and there has been no allegation that any were mailed within...