BROWN v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

ROSCOE BROWN, )

| )

Plaintiff 1:1 8-cv-00 193-RAL

vs. RICHARD A. LANZILLO

) UNITED STATES MAGISTRATE JUDGE

CORRECTIONAL OFFICER SMITH, )

CORRECTIONAL OFFICER SEEINGER, )

CORRECTIONAL OFFICER D'HAPPART, )

LIEUTENANT FAIT, MICHELLE THARP, ) .

DORINA VARNER, KERRI MOORE, )

JOHN WETZEL, DR. JOSE BOGGIO, )

DANIEL STROUP, MICHEAL EDWARDS, )

and MICHEAL CLARK, )

)

Defendants ) □

MEMORANDUM OPINION

I. Introduction

Plaintiff Roscoe Brown (Brown) seeks to appeal the Court’s order granting summary

judgment for all Defendants. The United States Court of Appeals for the Third Circuit has

concluded that Brown’s Notice of Appeal was not timely filed. See ECF No. 102. Before

dismissing Brown’s appeal, the Court of Appeals tasked this Court with deciding whether to

grant Brown’s motion for an extension of time to file an appeal under Federal Rule of Appellate

Procedure 4(a)(5) or to reopen the time for Brown to file an appeal under Rule4(a)(6). Jd. This

Court cannot reopen Brown’s time to appeal under Rule 4(a)(6), but because Brown timely filed

his motion for extension of time to appeal and demonstrated excusable neglect, the Court will

grant his motion to extend the time to appeal under Rule 4(a)(5). □

Il. Background

This Court previously granted Defendants’ two motions for summary judgment and

entered judgment in favor of all Defendants on'September 27, 2021. See ECF Nos. 94, 95. At

that time, Brown was represented by volunteer counsel. Brown had thirty days from that date to

file a notice of appeal, that is, until October 27, 2021. See Fed. R. App. P. 4(a)(1)(A). Brown

signed his pro se notice of appeal while he was still represented by volunteer counsel on

November 6, 2021. This occurred forty days after the judgment order and ten days after the

expiration of time to file a notice of appeal. His pro se notice of appeal was filed in this Court on

November 15, 2021, forty-nine days after the order entering judgment. Two days later, Brown’s

attorneys filed a motion to withdraw, explaining that their volunteer engagement did not extend

to any appeals. ECF No. 97, 99. The Court granted their motion to withdraw two days later.

ECF No. 100.

Also on November 19, 2021, the Clerk of the Court of Appeals sent Brown a letter

explaining that his appeal had been submitted to a panel of the Court of Appeals for possible

dismissal due to a jurisdictional defect. ECF No. 102. That letter informed Brown that while his

notice of appeal was untimely, the District Court may permit an extension of time to file a notice

of appeal under Fed. R. App. 4(a)(5) or it may reopen the time for filing a notice of appeal under

Fed. R. App. 4(a)(6). The parties were given twenty-one days from the date of the letter to

“submit written argument in support of or in opposition to dismissal of the appeal for lack of

appellate jurisdiction.”

Brown did not delay in responding to this directive. Six days later, he filed a motion with

the Court of Appeals for an extension of time to file his notice of appeal. He signed it on

Nowerber 24, 2021 (fifty-eight days after the judgment order) which was docketed in the Court

of Appeals on December 6, 2021 (seventy days after that order). Brown argued that he had

“good cause” under Fed. R. App. P. 4(a)(5).! Jd., p. 1. He explained that on September 30, .

2021, he received the memorandum opinion that granted Defendants’ motion forsummary .

judgment, but he never received the judgment order that the opinion said would separately

follow. He did later receive a docket sheet and his eouneels; motion to withdraw as his □

attorneys. The Defendants responded that the appeal should be dismissed for lack of jurisdiction.

Brown elaborated in his reply brief that he waited beyond the thirty-day time limit to appeal

because he feared that if he appealed before he received the separate judgment order, his appeal

would be invalid.? He disputed Defendants’ assertion that he must have received the order

granting summary judgment because his notice of appeal appeared to mierence this Court’s

order. Brown asserts that he included this reference because he “copied his ‘notice of appeal’

from ‘The Jailhouse Lawyers Handbook’ 6 Edition, 2021, page 132” and “simply used the

Janguage as it is on the form.” Brown adds that if his attorneys had the’final judgment order,

they could have appealed but did not. Jd. Then, Brown’s timely filed brief on jurisdiction

reiterated that he never received a separate judgment order and that his attorneys never notified

him if they had one. Thereafter, the Court of Appeals referred the case back to this Court.

Ill. Discussion .

A. Brown’s Motion to Reopen the Time to appeal under Rule 4(a)(6)

A district court cannot reopen the time to appeal unless the party did not receive notice of

the judgment order within twenty-one days after entry. See Fed. R. App. P. 4(a)(6)(A). The

' The Court also interprets this as an argument for “excusable neglect” because pro se briefs are afforded liberal

construction. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

2 Brown appears unaware that “[a] notice of appeal filed after the court announces a decision or order—but before

the entry of the judgment or order—is treated as filed on the date of and after the entry.” Fed. R. App. P. 4(a)(2). □

3.

Defendants argue that Brown received notice of the judgment order when it was served on his

attorneys, regardless of when he personally received a physical copy. While Brown may have

lacked actual notice, the Court need not resolve that factual dispute because the law imputes his -

attorneys’ knowledge of the judgment order to him. Thus, Brown, had notice within the twenty-

one-day period, and the Court cannot reopen the time to appeal under Rule 4(a)(6).

Rule 4(a)(6) provides:

(6) Reopening the Time to File an Appeal. The district court

may reopen the time to file an appeal for a period of 14

days after the date when its order to reopen is entered, but

only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive

notice under Federal Rule of Civil Procedure 77(d)

of the entry of the judgment or order sought to be

appealed within 21 days after entry;

(B) the motion is filed within 180 days after the

judgment or order is entered or within 14 days after

the moving party receives notice under Federal Rule

of Civil Procedure 77(d) of the entry, whichever is

earlier; and

(C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6). This provision “does not give a district judge carte blanche to allow

untimely appeals to be filed.” Matter of Marchiando, 13 F.3d 1111, 1114 (7th Cir. 1994). See

also Bowles v. Russell, 551 U.S. 205, 214 (2007) (when considering a motion to reopen time to

appeal under Rule 4(a)(6), the Supreme Court prohibited equitable exceptions to jurisdictional □

time limits). All three requirements must be met.

District courts provide notice of an order through the Clerk of the Court, who must serve

notice of an order “as provided in Rule 5(b), on each party...” Fed. R. Civ. P. 77(d). “Ifa party

is represented by an attorney, service under this rule must be made on the attorney unless the

court orders service on the party.” Fed. R. Civ. P. 5(b)(1). Here, the record shows that the

judgment order was served on Brown’s attorneys through the Court’s electronic-filing system.

Fed. R. Civ. P. 5(b)(2).2 The Court has no indication that the judgment order did not reach

Brown’s attorneys. Other documents filed via the Court’s ECF system had reached them.

Precedent compels the conclusion that Brown received the required notice when his

attorneys received electronic notice of the judgment order. In /rwin v. Dept. of Veterans Affairs,

the Supreme Court wrote, “[u]nder our system of representative litigation, ‘each party is deemed

bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of

which can be charged upon the attorney.’” 498 U.S. 89, 91 (1990) (quoting Link v. Wabash R.

Co.), 370 U.S. 626, 634 (1962)). See also New York vy. Hill, 528 U.S. 110 (2000). For this

reason, Brown’s motion to reopen the time to appeal under Rule 4(a)(6) is denied.

B. Brown’s Motion for Extension of Time to Appeal Under Rule 4(a)(5)4

The Defendants argue that this Court cannot grant Brown’s motion for extension of time

to appeal because the motion itself, not just the notice of appeal, was untimely.> The Court must

paper is served under this rule by: ... (E) sending it to a registered user by filing it with the court’s electronic-

filing system or sending it by other electronic means that the person consented to in writing—in either of which

events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach

‘the person to be served.” Fed. R. Civ. P. 5(b)(2).

4 Given the Court’s granting of Brown’s motion under Rule 4(a)(5), it need not decide whether his attorneys

displayed “extreme negligence” necessitating relief to Brown. See Carter v, Albert Einstein Med. Ctr., 804 F.2d

805, 807 (3d Cir. 1986) (citing Boughner v. Secretary of Health, Education & Welfare, 572 F.2d 976, 978 (3d

Cir.1978) (directing relief under Rule 60(b)). Similarly, the Court need not reach Brown’s contention that “for all

practical purposes he was acting pro se.” Mason v. Glebe, 674 Fed. Appx. 631 (9th Cir. 2017) (quoting Vaughan v.

Ricketts, 950 F.2d 1464, 1467 (9th Cir. 1991)).

> The Defendants argue that this Court could have ignored Brown’s pro se notice of appeal because he was

represented by counsel at the time. But the case they point to for support is inapplicable because it was a criminal

case relying on one of the Court of Appeals’ Local Rules stating that pro se filings from represented parties would

not be considered. See United States v. Turner, 677 F.3d 570, 578 (3d Cir. 2012) (citing 3d Cir. L.A.R. 31.3). In

any event, the Court considers this point moot because of the Court of Appeal’s order referring this matter.

reject this position. The Defendants incorrectly argue that the prison mailbox rule does not apply

to Brown’s motion. The Court also concludes that Brown’s unusual circumstances support a

finding of excusable neglect. Thus, the Court will grant Brown’s motion for extension of time to

appeal under Rule 4(ay(5). .

party may move for an extension at any time up to 30 days after the expiration of the

time otherwise available to appeal as of right, and the party must show “good cause or excusable

neglect,” Fed. R. App. P. 4(a)(5)(A). See also 28 U.S.C. § 2107(c). Combining the thirty days

- to file a notice of appeal with the thirty additional days to seek an extension, a party functionally

has sixty days from the judgment order to move for an extension of time. See Zied-Campbell v.

Comm’r Soc. Sec., 739 Fed. Appx. 140, 142 (3d Cir. 2018) (citing JUE AFL-CIO Pension Fund

v. Barker & Williamson, Inc., 788 F.2d 118, 122 n.1 (3d Cir: 1986)). The Court’s time

calculation for Rule 4(a)(5) is properly focused on the motion for extension of time, not the

notice of appeal. —

The Court’s memorandum opinion and judgment order were docketed separately on

September 27, 2021. ECF Nos. 94, 95. Brown’s notice of appeal was filed in this Court on

November 15, 2021, forty-nine days later. ECF No. 96. Then, fifty-eight days after the

judgment order, on November 24, 2021, Brown signed for mailing his motion for extension of

time to appeal; this was then docketed in the Court of Appeals on December 6, 2021, seventy

days after the judgment order. (3d Cir. Docket No. 10). Brown’s motion would be timely

considered “filed” in the former circumstance and untimely in the latter.

The prison mailbox rule resolves this question. Under the prison mailbox rule, an

unrepresented prisoner’s notice of appeal is considered filed as of the date the party delivered it

to prison authorities for forwarding to the court via the prison’s internal mail system. See Parker

Pennsylvania Bd. of Prob. & Parole, 798 Fed. Appx. 701, 704 (3d Cir. 2020) (citing Houston

v. Lack, 487 U.S. 266 (1988)). While Brown was represented when he filed his notice of appeal

pro se (presenting a different question of the rule’s application that need not be resolved here),

Brown was unrepresented when he signed his motion to extend time to appeal. The prison

mailbox rule has been extended from notices of appeal to other pro se civil filings of prisoners.

See, e.g., Bond v. VisionQuest, 410 Fed. Appx. 510, 514 (3d Cir. 2011) (applying the rule to pro

se prisoner complaints); Burns v. Morton, 134 F.3d 109, 112 Gd Cir. 1998) (pro se habeas

petitions). A consideration in Houston applies with equal force here: “concern with the pro se

prisoner’s lack of control ee the filing of documents.” Burns, 134 F.3d at 113. Thus, it seems

uncontroversial to apply the prison mailbox rule to Brown’s motion to extend time to file an

appeal. Doing so, this Court will treat Brown’s motion as filed within the time required under

Rule 4(a)(5). See Smith v. Carroll, 602 F. Supp. 2d 521, 526 n. 7 (D. Del. 2009) (“the court

concludes that [the complaint] was filed on the date it was signed, the earliest date possible that it

could have been delivered to prison officials...for mailing.”). □

A timely motion to extend the time to appeal must show “excusable neglect or good

cause.” Fed. R. App. P. 4(a)(5)(A)(ii); 28 U.S.C. § 2107(c). Brown has done so. See In re Diet

Drugs (Phentermmine/Fenfluramine/Dexfenfluramine) Prods. Liab. Litig., 401 F.3d 143, 153 Gd

Cir. 2005). A district court determining whether the neglect claimed was excusable weighs at

least four factors: “the danger of prejudice [to the opposing party], the length of the delay and its

potential impact on judicial proceedings, the reason for the delay, including whether was

within the reasonable control of the movant, and whether the movant acted in good faith.”

Pioneer Investment Servs. Co. v. Brunswick Assocs. L.P., 507 USS. 380, 395 (1993). See also In

re Diet Drugs, 401 F.3d at 153-54. Further, “the court may take into account. whether the clerk

7

failed to give notice as provided in Rule 77(d), or the party failed to receive the clerk’s notice.”

Vianello v. Pacifico, 905 F.2d 699, 701 (3d Cir. 1990) (quoting Advisory Committee Note to

Fed.R.Civ.P. 77(d) (emphasis omitted)) (remanding for consideration of excusable neglect under

Rule 4(a)(5) in this circumstance), The examination of excusable neglect focuses not only on

Brown but also his attorneys because the Supreme Court has “held that clients must be held

accountable for the acts and omissions of their attorneys.” See Pioneer Investment Servs. Co. v.

Brunswick Assocs. L.P., 507 U.S. 380, 396-97 (1993) (citing Link v. Wabash R. Co., 370 US.

626 ( 1962)), While the conduct of Brown’s attorneys is relevant to the failure to timely file a

notice of appeal, it is less so as to Brown’s motion for extension of time to appeal because

Brown filed that after he was no longer represented. .

. “Although inadvertence, ignorance of the rules, or mistakes construing the rules do not

usually constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b) is a

somewhat ‘elastic concept’ and is not limited strictly to omissions cauised by circumstances

beyond the control of the movant.” Pioneer, 507 U.S. at 392. “[T]he determination is at bottom

an equitable one, taking account of all relevant circumstances surrounding the party’s omission.”

Pioneer, 507 U.S. at 395. Such determination can be reviewed for abuse of discretion. See

Vianello y. Pacifico, 905 F.2d 699, 700 (3d Cir. 1990) (citing Consolidated Freightways Corp. v.

Larson, 827 F.2d 916, 918 (3d Cir. 1987)).

The record shows that Brown’s filing delay was minimal and had little impact on the

judicial proceedings; his notice of appeal was nineteen days late and his motion for extension of

- time was signed twenty-eight days after the expiration of the thirty days to appeal. See In re Diet

Drugs, 401 F.3d at 153-54 (eight-day delay in filing motion to extend time to appeal under Rule

4(a)(5) “was minimal”); Pioneer, 507 U.S. at 397-98 (affirming determination that twenty-day

delay did not interfere in “the interests of efficient judicial administration”). mere the

Defendants can fully respond to Brown’s appeal and have not indicated that they have been

prejudiced. See Inve Diet Drugs, 401 F.3d at 153-54 (no danger of prejudice in eight-day

delay).

The initial delay in filing a notice of appeal was apparently the result of

miscommunication between Brown and his former attorneys and inconsistent understandings of

the scope of the volunteer attorney’s representation. In the unusual circumstances here, Brown

provides a reasonable explanation that he always intended to appeal any adverse decision, but he

lacked the judgment order, and without it, he feared (albeit wrongly) that his appeal would be

technically improper and thus denied. See In re Diet Drugs, 401 F.3d at 154 “circumstances

surrounding Riepen’s failure...were understandable and reasonable”); Consol. Freightways

Corp. of Del. v. Larson, 827 F 2d 916, 917 (3d Cir. 1987) (district court erred by “reasoning that

/

a clerical error made by counsel or someone under counsel’s control can never constitute

. ‘excusable neglect”). The Court is also aware of the difficulties volunteer attorneys and their

clients often encounter due to the latter’s incarceration. What’s more, Brown appears to be

moving in good faith, and no circumstances show bad faith. The Court concludes that the

circumstances weigh in favor of finding excusable neglect.

IV. Conclusion

In sum, the Court finds excusable neglect for Brown’s timely-filed motion for extension

of time to file a notice of appeal. On the scales of equity, “[t]he interest in finality must be

balanced against the need to allow justice to take its course, and not have it thwarted by some

minute technical error.” Consol. Freightways Corp. of Del., 827 F.2d at 920. Thus, Brown’s

motion for an extension of time under Rule 4(a)(5) will be granted and his motion to reopen the

time to appeal under Rule 4(a)(6) will be denied. Now, having addressed the matter which had

been referred from the Court of Appeals, no further matters in the case await decision by this

_ Court, Brown is reminded that the Court of Appeals’ Order of March 23, 2022 stated, “If the

District Court grants plaintiffs motion, plaintiff does not need to file another notice of appeal.”

No. 102, p. 2. An order follows. :

ORDER

Brown’s motion for extension of time to file his notice of appeal is GRANTED. Brown’s

notice of appeal is considered filed nunc pro tunc within the required time for an appeal under 28

U.S.C. § 2107 and Fed. R. App. P. 4. The Clerk of the Court is directed to transmit this

Memorandum Opinion and Order to the Court of Appeals forthwith.

DATED this 21% day of April, 2022.

. BY THE COURT:

| A A. a Ene ¢

UNITED STATES MAGISTRATE JUDGE