Ortiz v. Warfield, C.A. No. CPU4-16-000625

Decision Date12 April 2016
Docket NumberC.A. No. CPU4-16-000625
PartiesJUAN ORTIZ, Plaintiff-Below/Appellant, v. PAUL WARFIELD, et. al., Defendants-Below/Appellees.
CourtDelaware Court of Common Pleas

JUAN ORTIZ, Plaintiff-Below/Appellant,
v.
PAUL WARFIELD, et.
al., Defendants-Below/Appellees.

C.A. No. CPU4-16-000625

COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Submitted: March 14, 2016
April 12, 2016


Juan Ortiz, SBI# 194247
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
Pro Se Appellant

Stuart B. Drowos, Esquire
Deputy Attorney General
Department of Justice
820 N. French Street
Wilmington, DE 19801
Attorney for Appellees

ORDER AND MEMORANDUM OPINION ON APPELLANT'S MOTION FOR REARGUMENT

Juan Ortiz ("Appellant") brings this Motion for Reargument pursuant to Court of Common Pleas Civil Rule 59(e) (the "Motion"). Appellant seeks to reargue this Court's Order of February 26, 2016, which dismissed the Appellant's appeal for being filed in an untimely manner. This is the Court's final decision and Order.

Page 2

FACTS AND RELEVANT PROCEDURAL POSTURE

On January 15, 2015, Appellant filed a claim against Paul Warfield, et. al., ("Appellees") in the Justice of the Peace Court, alleging that on August 20, 2014, Appellees broke Appellant's radio while conducting a shakedown at James T. Vaughn Correctional Center ("JTVCC"). Appellant initially submitted his claim to the grievance board, which voted in his favor, however the Appellees denied the relief. Thus, Appellant sought damages in the amount of $179.00 plus the cost of filing to repair or replace the radio.

On March 26, 2015, Appellees filed a Motion for Summary Judgment, arguing that Appellant failed to establish a prima facie case of trespass that, the Doctrine of Sovereign Immunity bars the claim, therefore depriving the Court of subject matter jurisdiction, and that the Doctrine of Qualified Immunity acts an additional bar to Appellant's claim.1 On February 1, 2016, the Justice of the Peace Court granted the Motion, and dismissed the case with prejudice (the "Order"). The Clerk of the court docketed the court's Order that same day and sent a copy to both parties.

On February 22, 2016, the Appellant filed a Notice of Appeal with this Court. On February 26, 2016, the Court dismissed the Appeal sua sponte because it was not timely filed as proscribed by Court of Common Pleas Civil Rule 72.1(e). On March 2, 2016, the Clerk of the Court docketed the Court's Order and sent a letter to the Appellant notifying him of the Court's decision. On March 14, 2016, Appellant filed the present Motion for Reargument.2

Page 3

APPELLANT'S CONTENTIONS

In his Motion, Appellant alleges that on February 5, 2016, the corrections center received the Justice of the Peace Court's Order, which was dated February 1, 2016.3 Appellant further maintains that he did not receive the Justice of the Peace Court's Order until February 6, 2016.4 He then placed his appeal in the prison mail scheduled to be sent out on February 14, 2016.5 Appellant argues that his appeal was timely for two reasons: (1) "the starting of the clock to [appeal] is triggered by service . . . [t]he day of service being excluded from the calculation of time," and (2) the federal prison mailbox rule established in Houston v. Lack is applicable because he is a pro se litigant who is incarcerated.6

In regards to the first argument, Appellant does not cite a specific rule that he wishes the Court to examine. The Court has carefully reviewed Appellant's argument, and for purposes of this Motion, will take he is referring to 10 Del. C. § 3104(g) and Court of Common Pleas Civil Rule 6(e), which seem to correspond to Appellant's contentions. Appellant argues that the tolling of time to appeal began when he received the Justice of the Peace Court's Order in his hands on February 6, 2016, which would make his filing date of February 22, 2016 timely. Appellant also argues that he should be afforded more consideration with respect to the timing of his filing given his status as an incarcerated pro se litigant. Ultimately, Appellant requests that the Court grant the present Motion for Reargument.

Page 4

DISCUSSION

In addressing the Appellant's arguments, the Court will address: (1) Whether Appellant filed the Motion in a timely manner; (2) Whether 10 Del. C. § 3104(g) or Court of Common Pleas Civil Rule 6(e) applies to the time limitation for appeals; and, (3) Whether the federal prison mailbox rule applies.

I. Untimely Filing of Motion for Reargument

Court of Common Pleas Civil Rule 59(e) governs motion for reargument, which provides: "[a] motion for reargument shall be served and filed within 5 days after the filing of the Court's opinion or decision . . . ." When computing this period of time, Court of Common Pleas Civil Rules 6(a) provides:

The day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or Sunday, or legal holiday, or other on which the office the Clerk of the Court is closed, in which event the period shall run until the end of the next day on which the office of the Clerk of Court is open. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in computation . . . .

Rule 6(e) states: "[w]henever a party has the right . . . to do some act or take some proceeding within a prescribed period after being served and service is by mail, 3 days shall be added to the prescribed period." However, the Delaware Supreme Court found that Rule...

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