Koch v. Ricketts, 92-16517

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: WIGGINS
• Citation: Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995)
• Decision Date: 19 October 1995
• Docket Number: No. 92-16517,92-16517
• Parties: , 95 Cal. Daily Op. Serv. 8184, 95 Daily Journal D.A.R. 14,060 Mark KOCH, Plaintiff-Appellant, v. James G. RICKETTS, Defendant-Appellee.

Page 1191

68 F.3d 1191

32 Fed.R.Serv.3d 1086, 95 Cal. Daily Op. Serv. 8184,

95 Daily Journal D.A.R. 14,060

Mark KOCH, Plaintiff-Appellant, v. James G. RICKETTS, Defendant-Appellee.

No. 92-16517.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1994.

Decided Oct. 19, 1995.

James Weinstein, Arizona State University, College of Law, Tempe, Arizona, for plaintiff-appellant.

Karen L. Lugosi, Assistant Attorney General, Phoenix, Arizona, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: GOODWIN, WIGGINS, and BRUNETTI, Circuit Judges.

WIGGINS, Circuit Judge:

Mark Koch appeals from the district court's ruling on remand that his original notice of appeal was untimely. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we reverse on the ground of Federal Rule of Appellate Procedure 4(c).

I. Background

Mark Koch was one of several Arizona state prisoners who sued prison officials under 42 U.S.C. Sec. 1983 for alleged violations of the prisoners' constitutional rights during an anal cavity search by prison guards. The case was tried before a jury, which found that prison officials had violated the prisoners' rights under the Fourth and Eighth Amendments, but that the prison officials were entitled to a defense of qualified immunity. Koch appealed, arguing that there was insufficient evidence to support the jury's finding of qualified immunity. Vaughan v. Ricketts, 950 F.2d 1464 (9th Cir.1991).

The Vaughan court was unable to address the merits of Koch's appeal without first deciding whether Koch's notice of appeal was timely filed under Federal Rule of Appellate Procedure 4(a). Rule 4(a) establishes a thirty-day time limit for the filing of appeals that is both mandatory and jurisdictional. Bird v. Reese, 875 F.2d 256, 256-57 (9th Cir.1989). Thus, absent timely filing, this court lacks jurisdiction over Koch's case. Koch's notice of appeal was received and file stamped by the district court clerk on August 8, 1990, nine days after the July 30, 1990 deadline established by Rule 4(a).

Ordinarily, a notice of appeal is deemed filed on the date the court clerk receives and stamps the notice. Fed.R.App.P. 4(a); Sudduth v. Arizona Attorney Gen., 921 F.2d 206, 206-207 (9th Cir.1990). In Houston v. Lack, however, the Supreme Court established an exception to that rule for prisoners filing pro se appeals. 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Houston's constructive filing rule held that a pro se prisoner's "notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk." Id. at 276, 108 S.Ct. at 2385 (footnote omitted).

To determine whether Koch's appeal was timely under the Houston rule, we remanded for a determination of the date on which Koch's notice of appeal was mailed. Vaughan, 950 F.2d at 1467-68. The district court on remand did not determine that date. Instead, after an evidentiary hearing, the court held that Koch did not qualify for a constructive filing date under Houston because of the manner in which he mailed the notice. In Miller v. Sumner, 921 F.2d 202, 203 (9th Cir.1990), we held that prisoners do not receive the benefit of the Houston rule if the notice of appeal is mailed in a regular mailbox in the prison rather than in a way that causes the prison authorities to post it through the prison mail log system. The district court held that Miller rendered Koch's mailing untimely. Koch (timely) appealed that ruling to this court.

II. Manner of Mailing

The district court believed Koch was ineligible for Houston's constructive filing deadline because he used regular mail (of which his prison did not keep a log) rather than registered, certified or insured mail, any of which was available to Koch for an extra fee, and any of which would have created documentation of the mailing date. In Miller, this court held that the prisoner is not entitled to the benefit of Houston's constructive filing deadline if he chooses to use a mailing procedure that does not create documentation. 921 F.2d at 203. ¹ The district court, applying Miller, held Koch's notice of appeal untimely.

After the district court's decision, however, section (c) was added to Rule 4 of the Federal Rules of Appellate Procedure. The new Rule 4(c) states:

If an inmate confined in an institution files a notice of appeal ..., the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. Sec. 1746) setting forth the date of deposit and stating that first-class postage has been prepaid.

The amendment became effective on December 1, 1993, while Koch's appeal was pending before this court. Rule 4(c) applies, "insofar as just and practicable," to appellate cases pending on the effective date. Order of the U.S. Supreme Court, 61 U.S.L.W. 4395 (U.S. Apr. 22, 1993). Because we see no reason why application of the new rule would work injustice or cause delay, we will decide the timeliness issue under Rule 4(c).

As the advisory committee notes make clear, Rule 4(c) was intended to formalize the constructive filing rule of Houston. ² The timeliness of Koch's appeal, therefore, turns on whether Rule 4(c), in formalizing the Houston rule, implicitly adopted the distinction drawn by Miller between methods of mailing that create documentation of the mailing date and those that do not. We hold that Rule 4(c) makes no such distinction.

Nothing in Rule 4(c) refers to the need to create a mail log. In fact, such a requirement is implicitly rejected by the provision in the Rule that, "[t]imely filing may be shown by a notarized statement or by a declaration ... setting forth the date of deposit and stating that first-class postage has been prepaid." If the rule required prisoners to utilize a prison log system, such a notarized statement or declaration would be entirely unnecessary, because reference to the log would be sufficient to prove the date in contested cases.

Nor can such a documentation requirement be imported from Houston, Rule 4(c)'s parent case. Houston assumed that a logging procedure was not only available for regular first class mail, but was also automatic. See 487 U.S. at 275, 108 S.Ct. at 2384-85. As the current case illustrates, however, neither assumption is necessarily true. There was no logging procedure available to Koch that did not involve an additional fee. Yet Koch still faced the obstacles that motivated the Court to adopt the Houston rule in the first place: lack of control over the progress of his mailing, and the potential for interference by prison officials whose interests are adverse to the prisoner bringing a Sec. 1983 suit. See id. at 270-71, 108 S.Ct. at 2382-83. We conclude, therefore, that no logging requirement can be imported from Houston. The fact that Koch did not mail his letter by a procedure that caused a log to be kept does not bar him from receiving the benefit of a constructive filing date under Rule 4(c). ³

III. Date of Mailing

On remand, the district court held an evidentiary hearing and made findings of fact on the manner in which the notice was mailed; but, believing that the manner of mailing made Koch ineligible for the benefit of a constructive filing date, the district court did not determine the exact date of mailing. Because we hold that, under Rule 4(c), Koch's notice of appeal was timely if he mailed it within the 30-day window created by Rule 4(a), it is once again necessary to determine the exact date of Koch's mailing. Rather than remanding a second time, we will make that finding ourselves on the basis of other facts found by the district court and in the record, which was fully developed...