Huskey v. Jones ( 2021 )

Case: 19-60588 Document: 00515901471 Page: 1 Date Filed: 06/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 15, 2021
No. 19-60588
Lyle W. Cayce
Clerk
Matthew Huskey,
Plaintiff—Appellant,
versus
Mary Jones, Captain (Unit 29); Derrick Munford, Captain (Unit
29); “John Doe” Griffin, Lieutenant (Key Control); Donovan
Clark, Officer (Unit 29); Tommy Herring, Officer (K-9 Unit),
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:17-CV-140
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Michael Huskey brought suit against Defendants-
Appellees for conduct that occurred during his incarceration at the
Mississippi State Penitentiary (“MSP”). The district court granted
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60588 Document: 00515901471 Page: 2 Date Filed: 06/15/2021
No. 19-60588
summary judgment in favor of Defendants. Because it is unclear whether we
have jurisdiction over Huskey’s appeal, this case is REMANDED.
I. Facts & Procedural History
Huskey alleges that on September 8, 2016, while seeking care at a
medical clinic, officers forced his face into a wall, yelled that he had a knife,
took his shoes and pants off, and took turns slapping him in the face and head
while he was restrained. According to Huskey, after the incident, Captain
Mary Jones left him in flex cuffs for about an hour, refused to let him see a
nurse, and then refused to transport him to the hospital after the doctor
informed her that it was prison policy to do so. He alleged that, when he was
taken to the hospital for an x-ray six days later, a doctor told him his arm was
broken. Huskey brought suit under 42 U.S.C. § 1983.1The district court held a hearing under Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985), and dismissed some of Huskey’s claims while allowing
him to proceed with claims that Defendants used excessive force against him
and denied him adequate medical care. The defendants filed a motion for
summary judgment, arguing that Huskey’s claims should be dismissed for
failure to exhaust administrative remedies under the Prison Litigation
Reform Act (“PLRA”). Huskey opposed summary judgment, arguing that
he satisfied the PLRA’s administrative exhaustion requirements by filing
1
“Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was unavailable.”
2
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grievances and attempting to appeal his rejections before being told that he
was not allowed to appeal them.
The magistrate judge granted the motion for summary judgment and
dismissed the case for failure to exhaust administrative remedies. The court
entered judgment on April 4, 2019. Huskey filed a motion to alter or amend
the judgment under Federal Rule of Civil Procedure 59(e) dated April 27,
2019, but not post-marked until May 3, 2019. The magistrate judge accepted
Huskey’s motion but denied it. The magistrate judge subsequently granted
Huskey’s motion to proceed in forma pauperis on appeal. Huskey appealed,
and filed a motion to appoint counsel, which was carried with the case.
II. Discussion
Huskey raises several arguments as to why the district court erred in
granting summary judgment to the defendants. However, because Huskey’s
appeal is potentially time-barred, we cannot yet reach its merits. While
neither side nor the district court raised this issue, a timely notice of appeal
in a civil case is a jurisdictional requirement. Bowles v. Russell, 551 U.S. 205,
214 (2007). It cannot be waived or forfeited. See Hamer v. Neighborhood Hous.
Servs. of Chi., 138 S. Ct. 13, 17 (2017). “In contrast to the ordinary operation
of our adversarial system, courts are obliged to notice jurisdictional issues
and raise them on their own initiative.” Id.A notice of appeal in a civil action must be filed within 30 days of entry
of the judgment from which the appeal is taken. Fed. R. App. P.
4(a)(1)(A); accord 28 U.S.C. § 2107(a). However, a motion to alter or amend
judgment under Rule 59(e) that is timely filed within 28 days of judgment
extends the time for filing a notice of appeal until 30 days after disposition of
the motion. Fed. R. App. P. 4(a)(4)(A)(iv); Fed. R. Civ. P. 59(e).
Huskey filed his notice of appeal on August 8, 2019, well more than 30 days
after entry of judgment on April 4, 2019 but within 30 days of entry of the
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order denying his Rule 59(e) motion on July 15, 2019. However, it is uncertain
whether Huskey timely filed his Rule 59(e) motion. “An untimely [Rule
59(e)] motion, even if acted upon by the district court, cannot toll the time
for filing a notice of appeal.” Washington v. Patlis, 868 F.2d 172, 174 (5th Cir.
1989).2
Under the prison mailbox rule, a prisoner files a timely Rule 59(e)
motion by depositing it in the prison mail system “on or before the last day
for filing.” Fed. R. App. P. 4(c)(1); see Uranga v. Davis, 893 F.3d 282, 285
(5th Cir. 2018) (explaining that this court has extended the prison mailbox
rule to Rule 59(e) motions). The mailbox rule applies “as of the moment the
prisoner’s document is delivered to prison officials for mailing to the district
court clerk.” Medley v. Thaler, 660 F.3d 833, 840 (5th Cir. 2011) (per curiam)
(emphasis in original) (citation and brackets omitted). The prisoner can
prove the date on which he filed the motion by submitting “a declaration,”
“a notarized statement,” or “evidence (such as a postmark or date stamp)
showing that the notice was so deposited and that postage was prepaid.”
Fed. R. App. P. 4(c)(1)(A)(i)–(ii).
Because the court entered judgment on April 4, 2019, Huskey’s Rule
59(e) motion was due by May 2, 2019. Huskey’s motion states that it was
signed April 27, 2019. However, the envelope attached to the motion was
post-marked on May 3, 2019, a day after his deadline.
2
Compare Haygood v. Quarterman, 239 F. App’x 39, 41 (5th Cir. 2007) (“Because
the Rule 59(e) motion was not timely filed, it did not extend the time in which to file the
notice of appeal.”), with Thompson v. Sharad, 788 F. App’x 971, 972 (5th Cir. 2019)
(“Thompson’s postjudgment motion, which was filed within this additional 30-day period,
sufficed as a motion under Rule 4(a)(5).”).
4
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In a declaration, Huskey explained that on April 28, 2019, he placed
an Inmate Legal Assistance Program (“ILAP”) form in his cell door to be
picked up and put in the legal box, and that the form was picked up during
the 7:00 p.m. count. On April 30, he asked the tower officer to call the law
library regarding his request for assistance, and the officer reported that she
received no answer. The following day, he again asked the tower officer to
call, and there was again no response. On May 2, at Huskey’s request, the
officer called the library again and stated that he had a deadline that day;
Huskey was informed that the law librarian had not been at work all week and
she would try to get to him that day. In his declaration, Huskey argued that
these circumstances should excuse “the lateness of the motion.” At the end
of the declaration, Huskey certified that on May 3, 2019, he “caused to be
mailed via [the] Inmate [L]egal Assistance Program . . . the foregoing
documents.” Huskey later filed a request for a status update with the district
court stating that he had filed a motion to alter or amend on May 3, and asking
if the motion was before the court or if he needed to file a notice of appeal.
He then wrote a second request for a status update in which he clarified that
he gave his motion to alter or amend to the law librarian on May 3, 2019. The
court on July 15, 2019 denied Huskey’s motion.
The federal rules do not permit extensions of time to file Rule 59(e)
motions. Fed. R. Civ. P. 6(b)(2), see also Haygood, 239 F. App’x at 41
(stating “the district court lacked the power to enlarge the time to file the
Rule 59(e) motion”). The magistrate judge accepted Huskey’s filing, but
made no reference to whether Huskey satisfied the prison mailbox rule. In
the court’s order denying Huskey’s Rule 59 motion, the court notes that such
a motion “must be filed within 28 days of entry of judgment.” However,
without any discussion of the facts leading up to Huskey’s filing of the
motion, we cannot infer that the court made a factual determination that
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Huskey’s submission of the inmate assistance form into his cell door satisfied
the mailbox rule.
We are unable to determine whether Huskey timely filed his Rule
59(e) motion with the record before us. The date on which a pro se pleading
is deposited in the prison mail system is a factual inquiry. See Stoot v. Cain,
570 F.3d 669, 672 (5th Cir. 2009). Huskey does not clarify whether he
attached his motion to the assistance form. He reports that the date that he
gave the motion to the law librarian was May 3, 2021, a day past the deadline.
However, it is unspecified whether there were any other occasions on or
before May 2 in which Huskey gave his motion to a prison official. As Huskey
was potentially unaware of the prison mailbox rule, he may not have specified
such an occasion in his declaration as he may have believed he needed to
deliver the motion to the librarian for it to count as being filed. As we cannot
know for sure that May 3 was the date “the prisoner’s document [was]
delivered to prison officials for mailing to the district court clerk,” it remains
unclear on what date the prison mailbox rule applied. See Thaler, 660 F.3d at
840.
As our court sua sponte raised this issue, Huskey has not had the
chance to further explain the events leading up to the filing of his motion.
Additionally, neither side has had the opportunity to argue whether Huskey’s
apparent substantial compliance with the prison handbook’s procedures
would allow the submission of the assistance form by itself to count as
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satisfaction of the prison mailbox rule.3 In other cases where it is unclear
whether a prisoner has satisfied the prison mailbox rule, we have remanded
to the district court to resolve this type of factual question. See Stoot, 570 F.3d
at 672; Roddy v. Cain, 467 F. App’x 292, 293 (5th Cir. 2012). Accordingly,
we remand this case to the district court for consideration of this issue.
III. Conclusion
For the foregoing reasons, we REMAND this case to the district
court for further proceedings not inconsistent with this opinion. We retain
jurisdiction over this limited remand, after which we will determine whether
we have jurisdiction to hear the merits of Huskey’s appeal. This appeal shall
return to the same panel. Because this proceeding is now remanded, we
DENY Huskey’s motion to appoint counsel as moot.4
3
The online Mississippi Department of Corrections Inmate Handbook explains
that in order to mail a legal filing through ILAP, the prisoner must fill out a legal assistance
request form and place it an assigned area for pickup by the tower officer. MISSISSIPPI
DEPARTMENT OF CORRECTIONS, INMATE HANDBOOK,
https://www.mdoc.ms.gov/Inmate-Info/Documents/CHAPTER_X.pdf (last accessed
May 24, 2021). It notes that “[i]nmates will be given notice of ILAP service days. Inmates
will be fully dressed and have legal paperwork ready to receive services on their assigned
day.” Id. It additionally states that “[s]hould Court . . . deadlines fall on a date prior to the
inmate’s scheduled service day, the inmate should complete an ILAP request form and
submit it to the tower officer along with proof of the deadline. The officer will telephone
ILAP so ILAP staff can provide services prior to the deadline.” Id. Huskey argues that the
lower court erred by taking judicial notice of this handbook. A court may judicially notice a
fact “that is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” FED. R.
EVID. 201(b)(2). Relevant here, this court has held that it may take judicial notice of
grievance procedures listed on a state’s website. See Cantwell v. Sterling, 788 F.3d 507, 509
(5th Cir. 2015) (per curiam).
4
However, given the complexity of the issues raised in Huskey’s appeal, we
recommend that the district court consider appointing counsel on remand.
7