
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1063                                                TERRY OLIVER,                                Plaintiff, Appellant,                                          v.             COMMISSIONER OF THE MASS. DEPARTMENT OF CORRECTIONS, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Terry Oliver on brief pro se.               ____________               Nancy Ankers White, Special Assistant Attorney  General, and               __________________          David J. Rentsch, Counsel, Department of Correction, on brief for          ________________          appellees.                                  __________________                                    August 2, 1994                                  __________________                 Per Curiam.  Pro  se plaintiff-appellant Terry Oliver, a                 __________   ___  __            federal   prisoner  in  the   custody  of  the  Massachusetts            Department  of  Corrections  [DOC],  brought  a  civil rights            action,   pursuant  to   42  U.S.C.      1983,   against  the            Commissioner and other  officials of  the DOC in  1989.   The            district  court granted  the defendants'  motion for  summary            judgment on May 23, 1991, and entered judgment on May 30.  On            June  21, Oliver  filed  a "Motion  to  Vacate, and  to  Make            Additional  Findings  of  Fact,  and  For Reconsideration  of            Plaintiffs'  Motion for  Partial  Summary Judgment."1    This            motion  was denied  on September  10, 1992.   On  October 19,            1992, Oliver filed a  "Motion to File Late Appeal  and Notice            of Appeal."  On  February 25, 1993, this court  dismissed the                                            ____________________            1.  If  this  motion had  been served  within ten  days after            entry of judgment, see  Fed. R. Civ. P. 59(e), it  would have                               ___            tolled the time for  filing the notice of appeal.   Feinstein                                                                _________            v. Moses, 951  F.2d 16, 18 (1st Cir.  1991).  Oliver contends               _____            that this motion should be  considered timely because he only            received a copy of the court's decision from prison officials            on June  10.  He asserts  that any delay in  transmitting the            final  judgment to him should  be excluded from  the time for            filing the motion to amend.  See United States v.  Grana, 864                                         ___ _____________     _____            F.2d  312, 316 (3d Cir.  1989) (time for  filing 59(e) motion            tolled when prison delay  interferes with prisoner's  receipt            of final judgment); but  see Feinstein, 951 F.2d at  19 (time                                ___  ___ _________            for filing Rule 59  motion can only be tolled  when appellant            reasonably relied on assurance  of district court that motion            was  timely).   We need  not  resolve this  issue here.   The            "timeliness  of  a  Rule  59  motion  to  amend  judgment  is            determined  by the  date it  is served,  not the  date  it is            filed."   Perez-Perez  v. Popular  Leasing Rental,  Inc., 993                      ___________     _____________________________            F.2d  281, 283  (1st Cir.  1993).   In this  case, defendants            claim,  and Oliver  has  not contested,  that  they were  not            served  until November  12, 1991,  well  after even  the time            limit for filing suggested by Oliver.                                           -2-            appeal for having  been untimely  filed pursuant  to Fed.  R.            App.  P. 4(a)(1).  After rehearing, this court granted Oliver            the  opportunity to present evidence in the lower court as to            whether he  delivered a  timely  notice of  appeal to  prison            officials for mailing.                   Oliver's  subsequent "Motion  to File  Notice of  Appeal            Nunc  Pro Tunc,  And  Notice of  Appeal"  was denied  by  the            district court on December  17, 1993.  The court  found that,            apart  from Oliver's  own statement,  "nothing in  the record            supports plaintiff's assertion that he had in fact instituted            the mailing procedures with respect to the Notice of Appeal."            Oliver appeals this denial.                                          I                 According to Oliver's affidavit, on June 18, 1991, while            confined  in  administrative detention  at the  United States            Penitentiary at Lewisburg, Pennsylvania,  he left a notice of            appeal in an  envelope in  the door  of his  cell for  prison            officials to  mail "via regular  first-class mail."    Oliver            concedes  that he made no attempt to  use the prison mail log            system for legal mail.  According to Oliver, the envelope was            mistakenly addressed to the Clerk  of the United States Court            of Appeals for  the First Circuit.  This court  has no record            of having received this  notice of appeal and Oliver  has not            produced a copy of the document.                                            II                                         -3-                 Ordinarily,  a notice of appeal in a civil case to which            the federal sovereign is not a Party is timely filed if it is            received by the  district court within thirty  days after the            entry  of judgment, Fed. R.  App. P. 4(a)(1),  or thirty days            thereafter if  the time  period is  extended by  the district            court  for "excusable neglect or good cause," Fed. R. App. P.            4(a)(5).   See Kaercher  v. Trustees  of Health &  Hospitals,                       ___ ________     _________________________________            Inc.,  834 F.2d 31, 33 (1st Cir.  1987).  However, in Houston            ___                                                   _______            v.  Lack, 487 U.S. 266  (1988), the Supreme  Court created an                ____            exception  to this  rule.    Under  Fed.  R.  App.  P.  4(c),            therefore, an inmate's  notice of appeal "is timely  filed if            it is deposited in  the institution's internal mailing system            on or before the last  day for filing," rather than  when the            notice of  appeal is received by the clerk of the court.  The            Supreme Court  relied in  part  on the  fact that  a "pro  se                                                                  ___  __            prisoner has no choice  but to entrust the forwarding  of his            notice of appeal to prison authorities whom he cannot control            or supervise and who may have every incentive to delay."  Id.                                                                      __            at  271.   The  Court further  reasoned that,  because prison            authorities "have well-developed procedures for recording the            date and time at which they receive papers for mailing, . . .            making filing turn of  the date the pro se  prisoner delivers                                                ___ __            the notice to prison authorities for mailing is a bright-line            rule, not an uncertain one."  Id. at 275.                                          __                                         -4-                 Oliver concedes that  he was aware  that only mail  sent            via certified, registered, insured,  COD, or express mail was            officially  recorded by  the prison  staff.   He nevertheless            chose  to send his notice  of appeal via  regular first class            mail.  By  failing to take advantage  of the prison  mail log            system, Oliver undermined the "bright-line rule" rationale on            which  the Supreme Court in  Houston relied and  made it more                                         _______            difficult   for   this  court   to  "avoid   uncertainty  and            chicanery,"  Miller v. Sumner, 921 F.2d 202, 203-04 (9th Cir.                         ______    ______            1990).   Other courts have  held that a  pro se prisoner  who                                                     ___ __            fails to avail himself  of the prison log system  forgoes the            advantage of the  special filing  rule.  Id.  at 203;  United                                                     __            ______            States v. Leonard, 937 F.2d 494, 495 (10th Cir. 1991).              ______    _______                 We need not go so  far.2  Even if we assume  that Oliver            must  only show  that he  submitted the  notice of  appeal to            prison authorities before the filing deadline, whether he did            so is a factual finding for the  district court.  See Hostler                                                              ___ _______            v. Groves, 912 F.2d 1158, 1162 (9th Cir. 1990), cert. denied,               ______                                       ____  ______            498  U.S. 1120 (1991).  In this  case, the only evidence that            Oliver  has offered  is his  unsupported  affidavit.   On the            other  hand,  he has  not produced  a  copy of  the purported            notice of  appeal and made no reference  to having previously                                            ____________________            2.  Unlike  the  appellants  in  Miller, 921  F.2d  202,  and                                             ______            Leonard, 937  F.2d  494,  each  of whom  posted  the  notices            _______            themselves  in  the  regular  prison  mail,  Oliver allegedly            submitted his letter to prison officials for mailing.                                           -5-            filed  a notice of appeal when,  in October 1992, he moved in            this  court to file a "late appeal."  In these circumstances,            we cannot say  that the district court  committed clear error            in  finding that  Oliver did  not submit  a timely  notice of            appeal.  See Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087                     ___ ____    __________________            (1st Cir. 1993) (district court findings of fact reviewed for            clear error).                 The district court order denying Oliver's motion to file            his notice of appeal nunc  pro tunc is affirmed.  The  appeal                                                   ________            from the  district court  order granting summary  judgment to            defendants  is  dismissed  for  lack of  jurisdiction.    See                            _________                                 ___            Browder v. Director, Dep't of  Corrections, 434 U.S. 257, 264            _______    _______________________________            (1978) (filing  of timely notice of  appeal is jurisdictional            requirement); Gochis  v. Allstate  Ins. Co.,  16 F.3d  12, 15                          ______     _________________            (1st Cir. 1994) (same).                                         -6-
