Poole v. Family Court of New Castle County

• Decision Date: 13 May 2004
• Docket Number: No. 02-2364.,02-2364.
• Citation: 368 F.3d 263
• Parties: Samuel T. POOLE, Appellant v. FAMILY COURT OF NEW CASTLE COUNTY; John Doe Emma Hayes; Florence F. Wright, Esq.; John W. Nails, Esq.; Edward J. Zetusky, Jr.; Walter T. Redavid, Esq., Judge; Delaware County Bar Association; Robert Snyder; Warden; Attorney General of the State of Delaware; Loretta M. Young.
• Court: U.S. Court of Appeals — Third Circuit

Page 263

368 F.3d 263

Samuel T. POOLE, Appellant v. FAMILY COURT OF NEW CASTLE COUNTY; John Doe Emma Hayes; Florence F. Wright, Esq.; John W. Nails, Esq.; Edward J. Zetusky, Jr.; Walter T. Redavid, Esq., Judge; Delaware County Bar Association; Robert Snyder; Warden; Attorney General of the State of Delaware; Loretta M. Young.

No. 02-2364.

United States Court of Appeals, Third Circuit.

Argued December 2, 2003.

Filed May 13, 2004.

Charles R.A. Morse (argued), Jones Day, Washington, D.C., for Appellant.

Kathleen M. Miller (argued), Smith, Katzenstein & Furlow, Wilmington, DE, for Appellee — John W. Nails.

Stuart B. Drowos (argued), Delaware Department of Justice, Wilmington, DE, for Appellees — Loretta Young and the Family Court of Delaware in and for the County of New Castle.

Before SLOVITER, ALITO, and FRIEDMAN,^* Circuit Judges.

ALITO, Circuit Judge.

This is an appeal from an order of the District Court dismissing all of the claims asserted in the pro se complaint filed by Samuel T. Poole ("Poole"), an inmate. Poole's notice of appeal was not filed on time, apparently because of delay in receiving notice of the entry of the order dismissing his claims. Instead of moving to reopen the time to file an appeal under Rule 4(a)(6) of the Federal Rules of Appellate Procedure, Poole filed a notice of appeal shortly after finally receiving notice. We hold that we lack jurisdiction to entertain this appeal.

I.

This case concerns the paternity of a minor who Samuel T. Poole claims is his son. In 2001, Poole filed what he called a "Petition for a Writ of Habeas Corpus" against several public officials and private individuals, alleging that a series of actions taken in connection with two family law proceedings — one in Delaware and the other in Pennsylvania — violated his Fifth and Fourteenth Amendment rights by interfering with his access to his son. The District Court treated the case as an action filed under 42 U.S.C. § 1983 and permitted Poole to proceed in forma pauperis. The District Court then dismissed the claims against two defendants sua sponte for lack of personal jurisdiction, and the Court dismissed the claims against the remaining defendants as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).

II.

A.

Before reaching the merits of this appeal, we are required to consider whether we have appellate jurisdiction. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). The timeliness of an appeal is a mandatory jurisdictional prerequisite. United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). In a civil case, Rule 4(a)(1) of the Federal Rules of Appellate Procedure generally requires a notice of appeal to be "filed with the district clerk within 30 days after the judgment or order appealed from is entered." In this case, the order dismissing Poole's complaint was entered on March 26, 2002, and Poole deposited his notice of appeal in his prison's internal mail system 44 days later. Under Appellate Rule 4(c)(1), Poole's notice of appeal is regarded as having been filed upon mailing, but because he did not mail the notice of appeal within 30 days after the relevant order was entered, he did not comply with Rule 4(a)(1).

B.

Poole argues that his notice of appeal should be regarded as having been filed on time because there was a delay in his receipt of notice from the district court clerk's office regarding the entry of the order of dismissal. This delay resulted from Poole's transfer from one correctional institution to another shortly before the order of dismissal was entered. When Poole made his initial filing and until some time in late March 2002, he was incarcerated in the Delaware Correctional Center in Smyrna, Delaware. When the District Court entered the order dismissing Poole's claims, the clerk of the court apparently sent notice to Poole and all of the other parties on that same day. The notice to Poole was mailed to the facility in Delaware, but by the time it arrived, Poole had been transferred to Pennsylvania's State Correctional Institution at Graterford. The Postal Service returned the notice to the clerk on April 24, 2002, at which time the clerk faxed an "address request" to the Delaware Department of Corrections. The clerk received Poole's new address on April 29 and then mailed a copy of the order to the correct address. Poole received the order on May 6 and mailed his notice of appeal three days later.

Poole argues that handwritten letters that he sent to the District Court and that were received on March 22 and April 1 should have alerted the clerk to his transfer. The first letter was described on the docket sheets as "Letter to Clerk of the Court dated 3/21/02 by Samuel Poole RE: questions regarding Habeas Corpus." This letter bore Poole's address at the Delaware facility, and in the midst of a discussion of other matters, the letter stated: "I will be returning to P.A. 3-24-02 is my Max out date and then my detainer come up...."

The second letter was described in the docket sheets as "Letter by Plaintiff, received 4/1/02, advising the Court he has no pen, paper, or ability to make telephone calls." This handwritten note in its entirety states:

Samuel T. Poole BN 5599

Box 244

Graterford Pa 19426-0244

To: Clerk

It will take me a couple of weeks to get a pen or to make a phone call or to get some paper this is the only way I can contact you with a pencil

Thank you

Samuel T. Poole

By the time this letter was sent and received, the clerk had already mailed notice to Poole's Delaware address, and apparently because this letter did not state expressly that Poole's address had changed and did not request that the clerk change the address listed on the docket, the letter did not alert the clerk's office that the notice sent a few days earlier had been mailed to a facility where Poole was no longer housed.

Poole argues that his notice of appeal should be regarded as having been filed on time under the reasoning of United States v. Grana, 864 F.2d 312 (3d Cir.1989). In Grana, a criminal case, we held that, "in computing the timeliness of filings which are jurisdictional in nature, any delay by prison officials in transmitting notice of a final order or judgment to an incarcerated pro se litigant should be excluded from the computation." Id. at 313. In the present case, Poole complains about delay attributable to the clerk's office, not prison officials, but Poole argues that Grana stands for the broad proposition that "when official delay ... interferes with receipt of the notice of appeal, that delay `must be subtracted from calculation of time for appeal.'" Appellant's Br. at 1 (quoting Grana, 864 F.2d at 316).

Poole's argument overlooks the significance of the fact that Grana was a criminal case. Because the present case is civil, the approach that we took in Grana is foreclosed by Federal Rule of Civil Procedure 77(d) and Federal Rule of Appellate Procedure 4(a). Under Civil Rule 77(d), a district court clerk must notify all parties not in default "[i]mmediately upon the entry of an order or judgment." The Rule goes on to state, however, that "[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure." Appellate Rule 4(a), in turn, provides a procedure for reopening the time to file a notice of appeal when the party desiring to appeal does not receive notice of the entry of the judgment or order. In a civil case, therefore, the only way in which a party may obtain relief based on a clerk's failure to serve notice of the entry of a judgment or order is via Appellate Rule 4(a), not via the Grana approach.

The Grana approach remains viable² in criminal cases because the Federal Rules of Criminal Procedure do not contain any provision analogous to Civil Rule 77(d) and because Appellate Rule 4(b), which deals with appeals in criminal cases, does not contain any provision analogous to Appellate Rule 4(a)(6).³ However, the Grana approach cannot be used to extend the time for filing a notice of appeal in a civil case.⁴

C.

1.

The remaining question that we must consider is whether there is any way in which Poole can obtain relief under Appellate Rule 4(a)(6). That Rule states:

The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: (A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier; (B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and (C) the court finds that no party would be prejudiced.

The terms of Appellate Rule 4(a)(6) thus contemplate the filing of a motion to reopen within seven days after notice is received. Here, Poole concedes that he received notice on May 6, 2002. He thus had until May 13 to move to reopen, but instead of filing a motion to reopen, he simply filed a notice of appeal on May 9. Unless we can construe his notice of appeal as a motion to reopen, he cannot qualify for relief under Appellate Rule 4(a)(6).

2.

Our court has not decided whether a pro se notice of appeal may be construed as a motion to reopen under Appellate Rule 4(a)(6), but we have held that a notice of appeal cannot be construed as a motion to extend the time to appeal in a civil case under Appellate Rule 4(a)(5). Herman v. Guardian Life Insurance Co., 762 F.2d 288 (3d Cir.1985) (per curiam). In Herman, we noted that before Appellate Rule 4(a)(5) was amended in 1979, we had been "`generally...