Poole v. Family Ct New Castle

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Precedential or Non-Precedential: Precedential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
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"Poole v. Family Ct New Castle" (2004). 2004 Decisions. Paper 665.
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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
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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
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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.
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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
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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.
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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).
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