                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2004

Poole v. Family Ct New Castle
Precedential or Non-Precedential: Precedential

Docket No. 02-2364




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Poole v. Family Ct New Castle" (2004). 2004 Decisions. Paper 665.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/665


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                  PRECEDENTIAL
                                                   Argued: December 2, 2003

   UNITED STATES COURT OF                      Before: SLOVITER, ALITO, and
           APPEALS                               FRIEDMAN,* Circuit Judges
    FOR THE THIRD CIRCUIT
         ____________                            (Opinion Filed: May 13, 2004)

            No. 02-2364                     CHARLES R.A. MORSE (argued)
           ____________                     Jones Day
                                            51 Louisiana Avenue, N.W.
       SAMUEL T. POOLE,                     Washington, D.C. 20001-2113
                                            Counsel for Appellant
                   Appellant
                                            KATHLEEN M. MILLER (argued)
                  v.                        Smith, Katzenstein & Furlow
                                            800 Delaware Avenue, 7th Floor
 FAMILY COURT OF NEW CASTLE                 Wilmington, DE 19899
       COUNTY; JOHN DOE                     Counsel for Appellee - John W. Nails, Esq.
   EMM A HAYES; FLORENCE F.
  WRIGHT, ESQ.; JOHN W. NAILS,              STUART B. DROWOS (argued)
             ESQ.;                          Delaware Department of Justice
EDWARD J. ZETUSKY, Jr.; WALTER              820 North French Street
     T. REDAVID, ESQ., Judge;               Wilmington, DE 19801-3509
    DELAWARE COUNTY BAR                     Counsel for Appellees - Loretta Young and
ASSOCIATION; ROBERT SNYDER;                 the Family Court of Delaware in and for
            Warden;                         the County of New Castle
  ATTORNEY GENERAL OF THE
     STATE OF DELAWARE;                            ______________________
       LORETTA M. YOUNG
                                                  OPINION OF THE COURT
                                                  ______________________
 ON APPEAL FROM THE UNITED
    STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

   (Dist. Court No. 01-cv-00297)                   *
                                                    The Honorable Daniel M.
 District Court Judge: Hon. Joseph J.
                                            Friedman, Senior Judge of the United
              Farnan, Jr.
                                            States Court of Appeals for the Federal
                                            Circuit, sitting by designation.

                                        1
ALITO, Circuit Judge:                                                       II.
        This is an appeal from an order of                                  A.
the District Court dismissing all of the
                                                               Before reaching the merits of this
claims asserted in the pro se complaint
                                                       appeal, we are required to consider
filed by Samuel T. Poole (“Poole”), an
                                                       whether we have appellate jurisdiction.
inmate. Poole’s notice of appeal was not
                                                       Bender v. Williamsport Area School Dist.,
filed on time, apparently because of delay
                                                       475 U.S. 534, 541 (1986). The timeliness
in receiving notice of the entry of the order
                                                       of an appeal is a mandatory jurisdictional
dismissing his claims. Instead of moving
                                                       prerequisite. United States v. Robinson,
to reopen the time to file an appeal under
                                                       361 U.S. 220, 224 (1960). In a civil case,
Rule 4(a)(6) of the Federal Rules of
                                                       Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, Poole filed a notice
                                                       Appellate Procedure generally requires a
of appeal shortly after finally receiving
                                                       notice of appeal to be “filed with the
notice. We hold that we lack jurisdiction
                                                       district clerk within 30 days after the
to entertain this appeal.
                                                       judgment or order appealed from is
                      I.                               entered.” In this case, the order dismissing
                                                       Poole’s complaint was entered on March
       This case concerns the paternity of
                                                       26, 2002, and Poole deposited his notice of
a minor who Samuel T. Poole claims is his
                                                       appeal in his prison’s internal mail system
son. In 2001, Poole filed what he called a
                                                       44 days later. Under Appellate Rule
“Petition for a Writ of Habeas Corpus”
                                                       4(c)(1), Poole’s notice of appeal is
against several public officials and private
                                                       regarded as having been filed upon
individuals, alleging that a series of actions
                                                       mailing, but because he did not mail the
taken in connection with two family law
                                                       notice of appeal within 30 days after the
proceedings – one in Delaware and the
                                                       relevant order was entered, he did not
other in Pennsylvania – violated his Fifth
                                                       comply with Rule 4(a)(1).
and Fourteenth Amendment rights by
interfering with his access to his son. The                                 B.
District Court treated the case as an action
                                                               Poole argues that his notice of
filed under 42 U.S.C. § 1983 and
                                                       appeal should be regarded as having been
permitted Poole to proceed in forma
                                                       filed on time because there was a delay in
pauperis.      The District Court then
                                                       his receipt of notice from the district court
dismissed the claims ag ainst tw o
                                                       clerk’s office regarding the entry of the
defendants sua sponte for lack of personal
                                                       order of dismissal. This delay resulted
jurisdiction, and the Court dismissed the
                                                       from Poole’s transfer from on e
claims against the remaining defendants as
                                                       correctional institution to another shortly
frivolous pursuant to 28 U.S.C. §§
                                                       before the order of dismissal was entered.
1915(e)(2)(B)-1915A(b)(1).
                                                       When Poole made his initial filing and
                                                       until some time in late March 2002, he was

                                                 -2-
incarcerated in the Delaware Correctional                             Samuel T. Poole BN 5599
Center in Smyrna, Delaware. When the                                  Box 244
District Court entered the order dismissing                           Graterford Pa 19426-0244
Poole’s claims, the clerk of the court
                                                              To: Clerk
apparently sent notice to Poole and all of
the other parties on that same day. The                       It will take me a couple of
notice to Poole was mailed to the facility                    weeks to get a pen or to
in Delaware, but by the time it arrived,                      make a phone call or to get
Poo le h a d b e e n t ra n s f e r re d to                   some paper this is the only
Pen nsylvan ia’s State C orrecti onal                         way I can contact you with a
Institution at Graterford. The Postal                         pencil
Service returned the notice to the clerk on
                                                                      Thank you
April 24, 2002, at which time the clerk
faxed an “address request” to the Delaware                            Samuel T. Poole
Department of Corrections. The clerk
                                                              By the time this letter was sent and
received Poole’s new address on April 29
                                                       received, the clerk had already mailed
and then mailed a copy of the order to the
                                                       notice to Poole’s Delaware address, and
correct address. Poole received the order
                                                       apparently because this letter did not state
on May 6 and mailed his notice of appeal
                                                       expressly that Poole’s address had changed
three days later.
                                                       and did not request that the clerk change
         Poole argues that handwritten                 the address listed on the docket, the letter
letters that he sent to the District Court and         did not alert the clerk’s office that the
that were received on March 22 and April               notice sent a few days earlier had been
1 should have alerted the clerk to his                 mailed to a facility where Poole was no
transfer. The first letter was described on            longer housed.
the docket sheets as “Letter to Clerk of the
                                                               Poole argues that his notice of
Court dated 3/21/02 by Samuel Poole RE:
                                                       appeal should be regarded as having been
questions regarding Habeas Corpus.” This
                                                       filed on time under the reasoning of United
letter bore Poole’s address at the Delaware
                                                       States v. Grana, 864 F.2d 312 (3d Cir.
facility, and in the midst of a discussion of
                                                       1989). In Grana, a criminal case, we held
other matters, the letter stated: “I will be
                                                       that, “in computing the timeliness of
returning to P.A. 3-24-02 is my Max out
                                                       filings which are jurisdictional in nature,
date and then my detainer come up . . . .”
                                                       any delay by prison officials in
        The second letter was described in             transmitting notice of a final order or
the docket sheets as “Letter by Plaintiff,             judgment to an incarcerated pro se litigant
received 4/1/02, advising the Court he has             should be excluded from the
no pen, paper, or ability to make telephone            computation.” Id. at 313. In the present
calls.” This handwritten note in its entirety          case, Poole complains about delay
states:                                                attributable to the clerk’s office, not prison

                                                 -3-
officials, but Poole argues that Grana               viable 2 in criminal cases because the
stands for the broad proposition that                Federal Rules of Criminal Procedure do
“when official delay . . . interferes with           not contain any provision analogous to
receipt of the notice of appeal, that delay          Civil Rule 77(d) and because Appellate
‘must be subtracted from calculation of              Rule 4(b), which deals with appeals in
time for appeal.’” Appellant’s Br. at 1              criminal cases, does not contain any
(quoting Grana, 864 F.2d at 316).                    provision analogous to Appellate Rule
                                                     4(a)(6). 3 However, the Grana approach
         Poole’s argument overlooks the
                                                     cannot be used to extend the time for filing
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                         2
                                                             Grana was decided before
Appellate Procedure 4(a). Under Civil                Appellate Rule 4(a)(6) was added and
Rule 77(d), a district court clerk must              corresponding changes were made in
notify all parties not in default                    Civil Rule 77(d). However, because
“[i]mmediately upon the entry of an order            these changes do not apply to criminal
or judgment.” The Rule goes on to state,             cases, Grana was not affected.
however, that “[l]ack of notice of the entry
                                                            3
by the clerk does not affect the time to                      The absence of criminal analogs
appeal or relieve or authorize the court to          to FED. R. C IV. P. 77(d) and F ED. R. A PP.
relieve a party for failure to appeal within         P. 4(a)(6) is probably due to the fact that
the time allowed, except as permitted in             the the vast majority of orders in criminal
Rule 4(a) of the Federal Rules of                    cases from which a defendant may take
Appellate Procedure.” Appellate Rule                 an appeal are judgments of conviction
4(a), in turn, provides a procedure for              and sentence. A criminal defendant must
reopening the time to file a notice of               be present when sentenced, and
appeal when the party desiring to appeal             consequently there is no need for the
does not receive notice of the entry of the          district court clerk to notify the defendant
judgment or order. In a civil case,                  by mail regarding this occurrence. For
therefore, the only way in which a party             the same reason, there are not many
may obtain relief based on a clerk’s failure         instances in which a criminal defendant
to serve notice of the entry of a judgment           runs the risk of failing to file a timely
or order is via Appellate Rule 4(a), not via         notice of appeal due to lack of notice
the Grana approach.                                  regarding the entry of the order from
                                                     which the appeal is taken. Grana was
       The    Grana    approach    remains
                                                     one of the relatively unusual criminal
                                                     cases in which a defendant took an
                                                     appeal from an order other than a
                                                     judgment of conviction and sentence.

                                               -4-
a notice of appeal in a civil case.4                      or order is entered or within
                                                          7 days after the moving
                     C.
                                                          party receives notice of the
                     1.                                   entry, whichever is earlier;
                                                          (B) the court finds that the
      The remaining question that we
                                                          moving party was entitled to
must consider is whether there is any way
                                                          notice of the entry of the
in which Poole can obtain relief under
                                                          judgment or order sought to
Appellate Rule 4(a)(6). That Rule states:
                                                          be appealed but did not
       The district court may                             receive the notice from the
       reopen the time to file an                         district court or any party
       appeal for a period of 14                          within 21 days after entry;
       days after the date when its                       and (C) the court finds that
       order to reopen is entered,                        n o p a r ty w o u l d b e
       but only if all the following                      prejudiced.
       conditions are satisfied: (A)
                                                           The terms of Appellate Rule 4(a)(6)
       the motion is filed within
                                                    thus contemplate the filing of a motion to
       180 days after the judgment
                                                    reopen within seven days after notice is
                                                    received. Here, Poole concedes that he
                                                    received notice on May 6, 2002. He thus
       4
         Moreover, even if Civil Rule               had until May 13 to move to reopen, but
77(d) and Appellate Rule 4(a) did not               instead of filing a motion to reopen, he
preclude us from applying Grana in the              simply filed a notice of appeal on May 9.
civil context, we would be reluctant to             Unless we can construe his notice of
extend Grana to a case such as the                  appeal as a motion to reopen, he cannot
present one, where the delay was not                qualify for relief under Appellate Rule
primarily due to Poole’s status as an               4(a)(6).
inmate but to the simple fact that he was
                                                                        2.
moved. Although Poole argues that his
letter of April 1 should have alerted the                  Our court has not decided whether
district court clerk that he had been               a pro se notice of appeal may be construed
transferred, neither of his letters                 as a motion to reopen under Appellate
expressly informed the clerk of that fact           Rule 4(a)(6), but we have held that a
or requested that his address be changed            notice of appeal cannot be construed as a
in the court’s records. It is simply asking         motion to extend the time to appeal in a
too much of the district court clerk to             civil case under Appellate Rule 4(a)(5).
note that the address listed on the April 1         Herman v. Guardian Life Insurance Co.,
letter was different from the address that          762 F.2d 288 (3d Cir. 1985) (per curiam).
Poole had previously provided.                      In Herman, we noted that before Appellate


                                              -5-
Rule 4(a)(5) was amended in 1979, we had              an extension of time to file a notice of
been “‘generally willing to treat a tardy             appeal in a criminal case is striking.
notice of appeal as the substantial                   Appellate Rule 4(b)(4) expressly states
equivalent of a motion to extend the time             that in criminal cases an extension may be
for filing on the ground of excusable                 granted “with or without motion.”
neglect.’” Id. at 289 (citation omitted).
                                                                           3.
We held, however, that the 1979
amendment prevented us from continuing                       The reasoning of Herman and like
that practice. We noted that the first                cases from other circuits militates in favor
sentence of Fed. R. App. P. 4(a)(5) permits           of a similar interpretation of Appellate
a district court to extend the time to file a         Rule 4(a)(6). The critical language in the
notice of appeal “upon motion,” and we                two rules is not materially distinguishable.
observed: “Thus, the filing of a motion is            Appellate Rule 4(a)(5) states in relevant
expressly required to obtain an extension             part:
of time.” Id. We also noted that the
                                                             The district court may
Committee Notes on the 1979 amendment
                                                             extend the time to file a
to this provision stated that “‘[t]he
                                                             notice of appeal if . . . a
proposed amendment would make it clear
                                                             party so moves no later than
that a motion to extend the time must be
                                                             30 days after the time
filed no later than 30 days after the
                                                             proscribed by this Rule 4(a)
expiration of the original appeal time.’”
                                                             expires . . . .
Id. at 289-90 (quoting Appellate Rule
4(a)(5), C ommittee N otes, 1979                      (emphasis added). Appellate Rule 4(a)(6)
Amendments). We therefore held that an                contains similar language:
extension may not be granted under
                                                             The district court may
Appellate Rule 4(a)(5) unless a motion is
                                                             reopen the time to file an
filed.
                                                             appeal . . . if . . . the motion
        Every other court of appeals to                      is filed within 180 days after
consider the question has reached the same                   the judgment or order is
conclusion. See 16A C HARLES A LAN                           entered or within 7 days
W RIGHT, A RTHUR R. M ILLER, E DWARD H.                      after the moving party
C OOPER, AND P ATRICK J. S CHILTZ,                           receives notice of the entry .
F EDERAL P RACTICE AND P ROCEDURE §                          ...
3950.3 at 139 & n.11 (1999 & 2003 Supp.)
                                                      (emphasis added).       Likewise, the
(citing cases). Not only are these decisions
                                                      Committee Notes for the two provisions
supported by the language of Appellate
                                                      are hard to distinguish in the respect
Rules 4(a)(5) and 4(a)(6) and their
                                                      relevant here. The Notes on the 1979
Committee Notes, but the contrast with the
                                                      amendments to Rule 4(a)(5) state:
provision of the Appellate Rules governing


                                                -6-
       The proposed amendment                        Appellate Rules 4(a)(5) and (6), see id. at
       would make it clear that a                    187 n.5, the Sanders panel gave several
       motion to extend the time                     reasons for interpreting the rules
       must be filed no later than                   differently, but we do not find these
       30 days after the expiration                  reasons persuasive.
       of the original appeal time .
                                                             In part, the Sanders panel seems to
       ...
                                                     have been influenced by a belief that
(emphasis added).                                    parties who move for an extension under
                                                     Rule 4(a)(5) are (as a group) less
       The Notes on the 1991 amendments
                                                     blameless than those (as a group) who
to Rule 4(a)(6) state:
                                                     move to reopen the time to appeal under
       Reopening may be ordered                      Rule 4(a)(6). 5 This assessment of the
       only upon a motion filed                      relative blamelessness of the two groups is
       within 180 days of the entry                  hardly clear cut.       Parties who seek
       of a judgment or order or                     extensions under Rule 4(a)(5) are
       within 7 days of receipt of                   sometimes entirely blameless – for
       notice of such entry,                         example, those who fail to file on time
       whichever is earlier.                         because of “an act of God or unforeseen
                                                     human intervention.” Pioneer Inv. Serv.
(emphasis added).
                                                     Co. v. Brunswick Associates Ltd. P’ship,
       Because the decision in Herman                507 U.S. 380, 388-89 (1993) (discussing
was based on language in Appellate Rule              “excusable neglect” under a bankruptcy
4(a)(5) and its Committee Note that is not           rule). And parties who fail to file a timely
significantly different from language in             notice of appeal because they have not
Appellate Rule 4(a)(6) and its Committee
Note, we conclude that we should apply
                                                            5
Herman in the present context as well. We                     The Court stated that “when
therefore hold that Appellate Rule 4(a)(6)           through no fault of his own, a pro se
requires a motion to reopen. While “no               litigant does not receive notice of the
particular form of words is necessary to             order from which he seeks to appeal, it
render a filing a ‘motion,’” Campos v.               would be unjust to deprive him of the
LeFebvre, 825 F.2d 671, 676 (2d Cir.                 opportunity to present his claim to this
1987), a simple notice of appeal does not            court.” 113 F.3d at 187. The Court
suffice.                                             added that a “notice of appeal filed late
                                                     because the appellant did not receive
       We are aware that the Eleventh
                                                     notice of the judgment should be treated
Circuit reached a contrary result in Sanders
                                                     differently (and more favorably) than
v. United States, 113 F.3d 184 (11th Cir.
                                                     those filed late for other reasons (i.e.,
1997) (per curiam). While acknowledging
                                                     those governed by Rule 4(a)(5)’s
the similarity between the language of
                                                     excusable neglect standard).” Id.

                                               -7-
received notice of the relevant judgment or          appeal has expired. This argument is
order may not be entirely blameless6 – for           based on a hypothetical situation that is
example, the party who is informed by the            unlikely to arise with any frequency, if at
court that a dispositive order is expected           all – namely, a case in which (a) prison
within a week but does not thereafter make           officials risk the consequences of
any effort to find out whether the order has         obstructing court mail in order to prevent
been issued. In any event, assuming that             a prisoner from appealing a district court
there is some difference in the relative             decision that the prisoner has lost, (b) the
blamelessness of the two groups, the                 prisoner learns of the decision within 180
difference is far too slight to justify              days, but (c) instead of moving to reopen
divergent interpretations of the very                the time to appeal, the prisoner simply files
similar language of Rules 4(a)(5) and                a notice of appeal. We will not permit our
4(a)(6).                                             interpretation of Rule 4(a)(6) to be
                                                     governed by such an extreme hypothetical.
        The remaining reasons given in
                                                     If at some time in the future we are
Sanders are likewise unconvincing. The
                                                     presented with such an outrageous case,
Sanders Court stated that it had “a duty to
                                                     we are confident that we have the tools to
liberally construe” a pro se litigant’s
                                                     ensure that the right to appeal is not
submission, 113 F.3d at 187 (internal
                                                     defeated.
quotation and citation omitted), but this
duty cannot justify taking a fundamentally                   In conclusion, we hold that relief
different approach in interpreting filings           under both Appellate Rules 4(a)(5) and
under Rules 4(a)(5) and 4(a)(6).                     4(a)(6) requires the filing of a motion, not
                                                     just a notice of appeal. We understand that
       Finally, we are not moved by the
                                                     this interpretation may lead to harsh results
Sanders panel’s argument that its
                                                     under both rules, and it may be that it
interpretation of Rule 4(a)(6) is needed so
                                                     would be preferable to treat a pro se notice
that prison officials will not prevent
                                                     of appeal as a motion under both rules.
inmates from taking timely appeals by
                                                     But we believe that Appellate Rules
ensuring that they do not receive notice of
                                                     4(a)(5) and 4(a)(6) must be read
adverse decisions until after the time to
                                                     consistently, and thus we conclude that
                                                     Rule 4(a)(6) demands a motion.

       6                                                                 III.
         Courts have faulted such parties
for failing to make due inquiry about                       Because Poole’s Notice of Appeal
adverse judgments or orders. See, e.g.,              was not timely filed and Poole failed to
O.P.M. Leasing Services Inc., 769 F.2d               move to reopen the time to file an appeal,
911 (2d Cir. 1985) (party who was not                we lack jurisdiction to decide the merits of
served with notice under Civil Rule 77(d)            his appeal. Therefore, for the reasons set
faulted for not looking for notice of order          out above, this appeal is dismissed.
in legal periodical).

                                               -8-
