                                                        NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 10-1099
                                ___________

                            HERBERT COUNCIL,
                                        Appellant

                                      v.

  JOHN NASH, Warden; C.J. DEROSA, Warden; HENRY E. MCKINNON, Unit
 Manager; JIM REISER, Case Manager; KEVIN BULLOCK, Case Manager; BOB
  DONAHUE, Case Manager Coordinator; RONNIE HOLTE, Associate Warden;
WALTER B. JONES, Assistant Administrator; JOHN R. OWENS, Associate Warden;
 SCOTT DODRILL, N.E. Regional Designator Administrator; E.L. TATUM, JR.,
Regional Designator Administrator; HARRELL WATTS, Administrator for National
               Appeals; TARRA MORAN, Attorney Advisor; USA
                   ____________________________________

                On Appeal from the United States District Court
                         for the District of New Jersey
                    (D.C. Civil Action No. 06-cv-00007)
                 District Judge: Honorable Robert B. Kugler
                 ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                              November 3, 2010

           Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

                      (Opinion Filed: November 9, 2010)

                                ___________

                         OPINION OF THE COURT
                              ___________
PER CURIAM.

       Herbert Council appeals pro se from the United States District Court for the

District of New Jersey‟s October 21, 2009 entry of judgment against him. For the

reasons that follow, we will dismiss the appeal.

                                            I.

       In 2006, while confined at the Federal Correctional Institution at Fort Dix, New

Jersey (“FCI Fort Dix”), Council filed a 42 U.S.C. § 1983 complaint against several

current and former employees of the Federal Bureau of Prisons (“BOP”). Although many

of the defendants were dismissed from the case, Council‟s claim against defendant Henry

McKinnon proceeded to trial. On October 21, 2009, after a two-day jury trial, the district

court entered an order granting the defendant‟s motion for judgment as a matter of law

under Federal Rule of Civil Procedure 50(a).1 Council‟s notice of appeal was, therefore,

due on Monday, December 21, 2009. See Fed. R. App. P. 4(a)(1)(B). The notice of

appeal, while dated December 16th, was not received by the district court clerk until

December 28th.

       Council‟s appeal is thus untimely under Federal Rule of Appellate Procedure

4(a)(1)(B). However, because Council was confined in a Community Correctional

Center (“CCC”) when he filed his notice of appeal, we directed the parties to address

       1
         The district court signed the order granting the defendant‟s motion for judgment
as a matter of law on October 20, 2009. However, the order was not entered on the
docket until October 21, 2009, and although “an order may be signed by the district court,
received by the clerk, and entered in the docket on different days, the entry date
controls.” United States v. Fiorelli, 337 F.3d 282, 287 (3d Cir. 2003).
                                              2
whether Federal Rule of Appellate Procedure 4(c)(1) —the codification of the “prison

mailbox rule” —applied to Council so as to make his notice of appeal timely. The

defendants complied with this order and asserted that the notice of appeal was untimely

and that, as such, this Court lacks jurisdiction over the appeal. Council filed an informal

brief but did not address the timeliness of his notice of appeal.

                                               II.

       This Court lacks jurisdiction over untimely appeals in civil actions. Bowles v.

Russell, 551 U.S. 205, 214 (2007) (holding that “the timely filing of a notice of appeal in

a civil case is a jurisdictional requirement”). Under Federal Rule of Appellate Procedure

4(a)(1)(B), a party has sixty days to appeal from a judgment in a case in which “the

United States or its officer or agency is a party.” The general rule is that a notice of

appeal is deemed filed on the date that it is received by the district court clerk‟s office.

See Fed. R. App. P. 4; United States v. Solly, 545 F.2d 874, 876 (3d Cir. 1976).

However, in Houston v. Lack, 487 U.S. 266, 276 (1988), the Supreme Court held that a

pro se prisoner‟s notice of appeal is deemed filed at the moment when he or she delivers

it to prison authorities for forwarding to the court clerk. This decision recognized that

pro se prisoners have no control over the delays in prison authorities‟ processing of legal

mail, and that the prison‟s failure to act promptly should not bind the litigants. Houston,

487 U.S. at 275-77. Federal Rule of Appellate Procedure 4(c)(1) thus provides that, “[i]f

an inmate confined in an institution files a notice of appeal . . . the notice is timely if it is

deposited in the institution‟s internal mail system on or before the last day for filing.”
                                                3
       The mailbox rule has been applied not just to prisoners but also to civil detainees

confined in state hospitals as sexually violent predators. See Jonas v. Blanas, 393 F.3d

918 (9th Cir. 2004) (explaining that the rule “applies broadly to any „inmate confined in

an institution.‟ There is no express limitation on the rule‟s application to prisoners, or to

penal institutions . . . .”). It is clear that those who are housed in CCCs remain under the

authority of the BOP, that such placement is considered part of the inmate‟s “term of

imprisonment,” and that a CCC is considered a “place of imprisonment.” See 18 U.S.C.

§§ 3621, 3624(c). However, CCCs have “relatively lenient policies . . . as compared to

more traditional correctional facilities. CCC pre-release programs often include an

employment component under which a prisoner may leave on a daily basis to work in the

community. Inmates may be eligible for weekend passes, or furloughs.” Woodall v. Fed.

Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005). Accordingly, based on the

rationale of Houston v. Lack, Rule 4(c)(1)‟s applicability to Council may depend on the

level of restrictions to which he was subject at the CCC, as it is unclear whether he was

able to ensure that his notice of appeal was timely filed as would a regular litigant.

       It is Council‟s burden to demonstrate that this Court has jurisdiction over his

appeal and that Rule 4(c)(1) applies to him. See Fed. R. App. P. 4(c)(1) (“Timely filing

may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized

statement, either of which must set forth the date of deposit and state that first class

postage has been prepaid.”); Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001)

(“[A]n appellant must prove that the necessary preconditions to the exercise of appellate
                                              4
jurisdiction—including the timely filing of a notice of appeal—have been fulfilled.”).

However, he has provided us with no information regarding the conditions of his

confinement, he has advanced no argument that Rule 4(c)(1) should apply to the filing of

his notice of appeal, nor has he filed a declaration or notarized statement as required by

Rule 4(c)(1). Further, Council states that his notice of appeal was filed on December

28th. Accordingly, we must dismiss this appeal for lack of jurisdiction because the notice

of appeal was untimely filed.




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