Brown v. Powell

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL EUGENE BROWN,

Plaintiff-Appellant,

v.

H. R. POWELL, Warden; C. GIBBS,

No. 98-6373

Captain; W. COPELAND, Assistant

Warden/treatment; MRS. JENNINGS,

Counselor,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CA-96-1240-2)

Submitted: June 29, 1999

Decided: July 19, 1999

Before MURNAGHAN, ERVIN, and WILLIAMS,

Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Michael Eugene Brown, Appellant Pro Se. Mark Ralph Davis,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-

mond, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Eugene Brown appeals from the dismissal of his 42

U.S.C.A. § 1983 (West Supp. 1999) action. Because Brown's notice

of appeal was received in the district court after expiration of the

appeal period, we remanded the case to the district court and

instructed the district court to obtain information regarding the date

that Brown delivered his notice of appeal to prison officials and to

determine the timeliness of the filing under Houston v. Lack, 487 U.S.

266 (1988) (notice considered filed as of the date Appellant delivers

it to prison officials forwarding to the court).

The district court entered its final order on January 27, 1998. Pur-

suant to Fed. R. App. P. 4(a), Brown's notice of appeal was due by

February 26. Brown's notice of appeal was dated February 26, post-

marked March 2, and received by this court on March 4.1 Brown also

mailed a notice of appeal directly to the district court. That notice was

dated February 26, postmarked March 2, and filed on March 6.

On remand, the district court ordered the Defendants to indicate

when Brown delivered his notice of appeal to prison authorities.

Defendants filed a response and attached an affidavit from the Mail-

room Supervisor at Greensville Correctional Center. The affidavit

stated that outgoing mail is picked up every weekday morning from

a mailbox to which prisoners have access and delivered on the same

day to the United States Post Office. Mail marked"legal mail" is

logged and documented, but regular mail is not. Finally, the affidavit

stated that Greensville's logbook showed that Brown mailed two

pieces of legal mail on March 2, 1998,2 one to the Fourth Circuit

Court of Appeals and one to the district court in Norfolk.

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1 A notice of appeal should be filed with the district court. However,

if the notice is mistakenly filed with the court of appeals, it is treated as

filed in the district court on the same day. See Fed. R. App. P. 4(d).

2 Because March 2, 1998, was a Monday, mail logged that day could

have been placed in the prison mailbox any time between Friday, Febru-

ary 27 (after the mail had been picked up that day) and March 2.

2

The district court neither requested any information from Brown

nor informed him that he could respond to Defendants' filing. Brown

did not file any documents or pleadings in district court on remand.

The district court issued an order applying the"presumption of regu-

larity" to prison officials and found that Brown's appeal was not

timely filed. The case was then returned to this court.

An appellate court cannot disregard a district court's factual find-

ings absent clear error. A finding is "clearly erroneous" when the

reviewing court "is left with the definite and firm conviction that a

mistake has been committed." United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948). However, in general, pro se litigants

must be informed of their right to respond, warned that a failure to

do so will waive rights, and given a reasonable opportunity to submit

evidence. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.

1975) (summary judgment); Wright v. Collins, 766 F.2d 841, 846-47

(4th Cir. 1985) (objections to magistrate judge's recommendation).

The record clearly shows that Brown mailed two pieces of legal

mail on March 2, 1998, one to this court and one to the district court.

Not coincidentally, both of Brown's notices of appeal were marked

"legal mail" and postmarked March 2. The Mailroom Supervisor

avers that mail logged on March 2 could not have been placed in the

institutional mailbox before February 27. On the record, we find that

the district court's factual finding that Brown did not file his notice

of appeal on or before February 26 was not clearly erroneous.

However, Brown was informed neither of his right to respond to

Defendants' evidence nor of the fact that the case would be dismissed

solely on the basis of Defendants' affidavit. Nonetheless, we hold fur-

ther remand would be inefficient. In subsequent correspondence to

this court, Brown argues only that his notice of appeal should be con-

sidered filed on the date he gave the document to the prison notary.

However, the record clearly shows that Brown's document is not

notarized.

Further, Brown is not in a position to offer proof regarding the

internal practices of the mailroom. While this disadvantage might

place prisoners in the awkward position of having no way to prove

the date of filing, Fed. R. App. P. 4(c)(1) addresses this problem and

3

provides that "[t]imely filing may be shown by a declaration in com-

pliance with 28 U.S.C. § 1746 or by a notarized statement, either of

which must set forth the date of deposit and state that first-class post-

age has been prepaid." Section 1746 requires a declaration to be sub-

scribed under penalty of perjury and dated. See 28 U.S.C. § 1746

(1994). Brown's notice of appeal was not notarized, he did not

include a declaration, and he did not state the date he deposited the

notice in the prison mailbox or that first-class postage had been prepaid.3

Thus, because Brown's notice of appeal was deficient and because

he has not indicated a proper basis to challenge Defendants' asser-

tions below, we find that the failure to give notice of Brown's right

to respond was harmless error.

Brown's failure to note a timely appeal or obtain either an exten-

sion or a reopening of the appeal period leaves this court without

jurisdiction to consider the merits of Brown's appeal. We therefore

dismiss the appeal as untimely. We grant Brown's motion to amend

his informal brief and dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

DISMISSED

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3 Brown's notice of appeal does not include a certificate of service, but

instead merely states his desire to appeal and is dated February 26, 1998.

4