Smith v. Evans

• Decision Date: 22 April 1988
• Docket Number: No. 87-3761,87-3761
• Citation: 853 F.2d 155
• Parties: Meral SMITH, Appellant, v. Melvin H. EVANS, et al., Appellees. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 155

853 F.2d 155

11 Fed.R.Serv.3d 861

Meral SMITH, Appellant, v. Melvin H. EVANS, et al., Appellees.

No. 87-3761.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

April 22, 1988.

Decided July 21, 1988.

Rehearing and Rehearing In Banc Denied Nov. 4, 1988.

Meral Smith, Lewisburg, Pa., pro se.

Godfrey R. de Castro, Atty. Gen., Rosalie Simmonds Ballentine, Sol. Gen., Susan Frederick Rhodes, Asst. Atty. Gen., Dept. of Justice, Charlotte Amalie, St. Thomas, V.I. for appellees.

Before SEITZ, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal presents a technical question of appellate jurisdiction. Appellant, a prisoner acting pro se, filed an untimely Fed. R. Civ. P. 59(e) motion to alter or amend the district court's judgment. Because only a timely Rule 59(e) motion will toll the time for appeal, we hold that the appeal, filed more than thirty days after the district court's judgment, was untimely. We will therefore dismiss the appeal without reaching the merits. In arriving at this conclusion, we discuss and reject three possible exceptions to this jurisdictional rule, which we acknowledge can be especially harsh in its effect upon pro se litigants.

First, because the motion was clearly labeled and considered a rule 59(e) motion and because it challenged a fundamental legal error that required the district court to reconsider its decision, we cannot construe the motion as a Rule 60(b) motion to relieve a party from mistake. In contrast, if Appellant's motion were indeed a 60(b) motion, the appeal would be timely, at least as to the issues raised in the 60(b) motion.

Second, because the court did not affirmatively assure Smith that his motion was timely or otherwise actively mislead the Appellant as to the timeliness of his motion, we cannot, to the extent that it retains viability, apply the "unique circumstances" exception to this case.

Third, because we find that Smith's motion was out of time before he even gave the motion to prison officials to mail and that prison delay in mailing Smith's motion was not therefore a factor in Smith's making his motion out of time, we hold that the Supreme Court's decision in Houston v. Lack, --- U.S. ----, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (an appeal is deemed filed by a pro se prisoner at the moment of delivery of his papers to prison officials for mailing to the district court) cannot apply to the facts of this case.

I.

Meral Smith is an inmate at the Federal Correctional Institution at Lewisburg, Pennsylvania, where he is serving a lengthy sentence imposed by the District Court of the Virgin Islands. Following an initial period of incarceration in the Virgin Islands, Smith was transferred to the custody of the United States Bureau of Prisons. He was incarcerated at Lewisburg, remote from the office of the Clerk of Court in the Virgin Islands, pursuant to a contract between the Virgin Islands Bureau of Corrections (BOC) and the United States Department of Justice. That contract allows the director of the BOC to transfer certain territorial prisoners to the federal penitentiary system.

In an action brought pro se pursuant to 42 U.S.C. Sec. 1983, Smith sought to enjoin enforcement of that contract, alleging that his confinement in the federal penitentiary system deprived him of access to the courts, specifically access to Virgin Islands law books, thereby causing him severe emotional distress. In his complaint, Smith sought compensatory and punitive damages as well as injunctive relief. Smith named several Virgin Islands government officials, including the director of the BOC, as defendants. In their answer, the defendants interposed a number of affirmative defenses, including statute of limitations, good faith immunity, and failure to follow the procedure required by the Virgin Islands Tort Claims Act, 33 V.I.C. Sec. 3401, et seq.

When the matter came before the district court on Smith's motion for preliminary injunction, the court denied the motion without a hearing. By order entered April 23, 1987, the court dismissed the complaint on two grounds. First, to dispose of the transfer issue, the court relied on Bradshaw v. Carlson, 682 F.2d 1050 (3d Cir.1981) (per curiam) (territorial prisoners have no right to be confined within the territory). Second, it concluded that Benjamin v. Potter, 635 F. Supp. 243 (D.V.I. 1986), aff'd mem., 838 F.2d 1205 (3d Cir.1988), which held that the government's obligation to provide meaningful access to the courts can be met, inter alia, by expanding the duties of local public defenders to include researching prisoners' claims, established that the Government of the Virgin Islands did not have to provide Smith with Virgin Islands law books.

On May 13, 1987, Smith served a motion, captioned a Rule 59(e) motion, to alter or amend the judgment. Despite the rigid 10-day requirement for serving a motion to alter or amend the judgment, this motion was served more than 10 days after the district court's dismissal. In the motion, Smith asserted that the court had misconstrued his complaint as seeking habeas corpus relief rather than money damages. He further argued that Benjamin v. Potter did not apply to the remedy he sought for past denial of access to Virgin Islands law books (Smith had been incarcerated at Lewisburg before the decision in Benjamin ). Smith asked for a liberal construction of his complaint in view of his pro se status.

On May 20, 1987, acknowledging the receipt of Smith's Rule 59 motion but without explicitly granting it, the court granted Smith leave to file an affidavit setting forth his alleged damages for emotional distress. Smith filed such an affidavit, but it stated no more than the bare allegation that "as a result of the mental anguish and actual injury that he has suffered during the past fourteen years (14 years), he is entitled to an award of $10,000,000.00 (ten million dollars) in damages against the defendants in the case at bar." App. at 37.

Upon consideration of Smith's affidavit, by order dated July 23, 1987, the court granted his motion for reconsideration and amended its judgment of April 23, 1987, awarding Smith nominal damages in the amount of $1.00. In its amended judgment the court gave as its reasons:

Now the plaintiff has come forward with his affidavit. In it he states some emotional distress. We note, however, that the stress he alleges is more likely a result from his long 14-year prison confinement, than from any lack of books. Moreover, our decision in Benjamin has resolved his claims as to the future. We, therefore, consider any damages he may have nominal only, and will award him $1.00. This resolution precludes the necessity of considering any of the defendant's meritorious defenses.

Smith filed a renewed motion, timely served on July 30, 1987, to amend or alter the judgment, alleging that he was entitled to a jury trial on the damages issue. The district court denied the motion by order entered October 26, 1987 and this appeal followed. Because we find that we have no appellate jurisdiction, we do not consider the merits of Smith's claim that he deserved a trial on damages, or the appropriateness of the district court's apparent finding of liability (accompanied by an award of nominal damages) and its circumvention of meritorious defenses by so proceeding.

II.

Although it was raised by no party, we have a continuing obligation to examine our subject matter jurisdiction. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986); Lovell Mfg. v. Export-Import Bank, 843 F.2d 725, 729 (3d Cir.1988).

A notice of appeal must be filed within thirty days of the date of entry of judgment. Rule 4(a)(1), Fed. R. App. P. A timely motion to alter or amend the judgment, pursuant to Rule 59(e), Fed. R. Civ. P., tolls the time for filing a notice of appeal. Fed. R. App. P. 4(a)(4). To be timely, the Rule 59(e) motion must be served within ten days of entry of judgment. The "ten day period is jurisdictional, and 'cannot be extended in the discretion of the district court.' " de la Fuente v. Central Electric Cooperative, Inc., 703 F.2d 63, 65 (3d Cir.1983) (per curiam) (quoting Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980) (per curiam)). An untimely motion, even if acted upon by the district court, cannot toll the time for filing a notice of appeal. The ten day limit for filing a Rule 59 motion is clearly set forth in the Rule. It is equally clear that a district court may not extend or waive the ten day limit. Rule 6, Fed. R. Civ. P.; de la Fuente, 703 F.2d at 65. Because the May 13, 1987 motion to reconsider the April 23 order of dismissal was untimely, and did not toll the time for filing a notice of appeal, we must dismiss the appeal for lack of jurisdiction.

We acknowledge that Smith is before us pro se, hence we have searched for a means of relieving him from this harsh result. We have struggled with three possible theories, all of which we ultimately found cannot salvage this untimely appeal.

A.

First, we have examined whether Smith's motion for reconsideration can be construed as a motion for relief from judgment due to mistake, pursuant to Fed. R. Civ. P. 60(b)(1), which may be filed within a reasonable time, up to one year, after judgment. If it can be so construed, then its filing was timely. A Rule 60(b) motion is not one of the motions listed in Rule 4(a)(4), Fed. R. App. P., which tolls the time for filing a notice of appeal. Moreover, the grant or denial of a Rule 60(b) motion is an appealable order. Smith filed, within ten days, a motion to reconsider the July 24 order granting him $1.00 in damages, see Eleby v. American Medical Systems, 795 F.2d 411 (5th Cir.1986) (reconsideration of an order disposing of a Rule 60 motion is permitted), and he also filed a timely notice of appeal from the order denying the motion for...