On Appeal From the District Court of the Virgin Islands (D.C. Civil No. 87-002)
Seitz, Sloviter and Becker, Circuit Judges.
This appeal presents a technical question of appellate jurisdiction. Appellant, a prisoner acting pro se, filed an untimely Fed. R. Civ. P. 59(e) motion to alter or amend the district court's judgment. Because only a timely Rule 59(e) motion will toll the time for appeal, we hold that the appeal, filed more than thirty days after the district court's judgment, was untimely. We will therefore dismiss the appeal without reaching the merits. In arriving at this conclusion, we discuss and reject three possible exceptions to this jurisdictional rule, which we acknowledge can be especially harsh in its effect upon pro se litigants.
First, because the motion was clearly labeled and considered a rule 59(e) motion and because it challenged a fundamental legal error that required the district court to reconsider its decision, we cannot construe the motion as a Rule 60(b) motion to relieve a party from mistake. In contrast, if Appellant's motion were indeed a 60(b) motion, the appeal would be timely, at least as to the issues raised in the 60(b) motion.
Second, because the court did not affirmatively assure Smith that his motion was timely or otherwise actively mislead the Appellant as to the timeliness of his motion, we cannot, to the extent that it retains viability, apply the "unique circumstances" exception to this case.
Third, because we find that Smith's motion was out of time before he even gave the motion to prison officials to mail and that prison delay in mailing Smith's motion was not therefore a factor in Smith's making his motion out of time, we hold that the Supreme Court's decision in Houston v. Lack, 487 U.S. 266, 56 U.S.L.W. 4728, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (U.S. June 21, 1988) (an appeal is deemed filed by a pro se prisoner at the moment of delivery of his papers to prison officials for mailing to the district court) cannot apply to the facts of this case.
Meral Smith is an inmate at the Federal Correctional Institution at Lewisburg, Pennsylvania, where he is serving a lengthy sentence imposed by the District Court of the Virgin Islands. Following an initial period of incarceration in the Virgin Islands, Smith was transferred to the custody of the United States Bureau of Prisons. He was incarcerated at Lewisburg, remote from the office of the Clerk of Court in the Virgin Islands, pursuant to a contract between the Virgin Islands Bureau of Corrections (BOC) and the United States Department of Justice. That contract allows the director of the BOC to transfer certain territorial prisoners to the federal penitentiary system.
In an action brought pro se pursuant to 42 U.S.C. § 1983, Smith sought to enjoin enforcement of that contract, alleging that his confinement in the federal penitentiary system deprived him of access to the courts, specifically access to Virgin Islands law books, thereby causing him severe emotional distress. In his complaint, Smith sought compensatory and punitive damages as well as injunctive relief. Smith named several Virgin Islands government officials, including the director of the BOC, as defendants. In their answer, the defendants interposed a number of affirmative defenses, including statute of limitations, good faith immunity, and failure to follow the procedure required by the Virgin Islands Tort Claims Act, 33 V.I.C. § 3401, et seq.
When the matter came before the district court on Smith's motion for preliminary injunction, the court denied the motion without a hearing. By order entered April 23, 1987, the court dismissed the complaint on two grounds. First, to dispose of the transfer issue, the court relied on Bradshaw v. Carlson, 682 F.2d 1050 (3d Cir. 1981) (per curiam), (territorial prisoners have no right to be confined within the territory). Second, it concluded that Benjamin v. Potter, 635 F. Supp. 243 (D.V.I. 1986), aff'd mem., 838 F.2d 1205 (3d Cir. 1988), which held that the government's obligation to provide meaningful access to the courts can be met, inter alia, by expanding the duties of local public defenders to include researching prisoners' claims, established that the Government of the Virgin Islands did not have to provide Smith with Virgin Islands law books.
On May 13, 1987, Smith served a motion, captioned a Rule 59(e) motion, to alter or amend the judgment. Despite the rigid 10-day requirement for serving a motion to alter or amend the judgment, this motion was served more than 10 days after the district court's dismissal. In the motion, Smith asserted that the court had misconstrued his complaint as seeking habeas corpus relief rather than money damages. He further argued that Benjamin v. Potter did not apply to the remedy he sought for past denial of access to Virgin Islands law books (Smith had been incarcerated at Lewisburg before the decision in Benjamin). Smith asked for a liberal construction of his complaint in view of his pro se status.
On May 20, 1987, acknowledging the receipt of Smith's Rule 59 motion but without explicitly granting it, the court granted Smith leave to file an affidavit setting forth his alleged damages for emotional distress. Smith filed such an affidavit, but it stated no more than the bare allegation that "as a result of the mental anguish and actual injury that he has suffered during the past fourteen years (14 years), he is entitled to an ...