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Akan v. Summers

United States District Court, W.D. Pennsylvania

July 30, 2018

AKANINYENE EFIONG AKAN, Plaintiff,
v.
ADAM SUMMERS, NEIL REINSFELDER, STEVEN CENTRA, RUFUS JONES, GREGORY BOSS sued in their individual and official capacities, Defendants.

          MEMORANDUM OPINION

          JOY FLOWERS CONTI, UNITED STATES DISTRICT JUDGE

         Presently pending before the court are: 1) the motion of plaintiff, Akaninyene Efiong Akan (“plaintiff”), pro se, to “reopen time to file a motion for reconsideration and appeal from judgment entered on December 5, 2017, ” (ECF No. 32), pursuant to Federal Rule of Civil Procedure 60(b)(6), Federal Rule of Civil Procedure 77(d), Federal Rule of Appellate Procedure 4(a)(6), and Local Civil Rules 5.6 and 10(d); 2) the motion of plaintiff to compel specific performance (ECF No. 38); and 3) the motion of plaintiff to notify the court of “crucial misrepresentation.” (ECF No. 40).

         Plaintiff is incarcerated at the State Correctional Institution at Forest, Pennsylvania (“SCI-Forest”). On December 5, 2017, the court issued an opinion and order on defendants' motions to dismiss the complaint, (ECF Nos. 30, 31), granting defendants' motions over plaintiff's opposition and dismissing the complaint with prejudice because the only claim asserted by plaintiff was barred by the applicable statute of limitations. By filing post-marked April 27, 2018, plaintiff, pro se, filed the present motion for extension of time. Defendants Steven Centra, Neil Reinsfelder, and Adam Summers (the “University defendants”) filed a response in opposition on May 22, 2018 (ECF No. 36), and defendants Gregory Boss and Rufus Jones filed a response in opposition on May 25, 2018, which merely incorporated the arguments of the University defendants. (ECF No. 37).

         Plaintiff indicates in his motion that he did not receive a copy of the court's December 5, 2017 opinion and order dismissing his complaint and closing the case, asserting that it was not sent to him. Plaintiff further indicates that because he is a prisoner and does not have the benefit of electronic notice, he requested a copy of the docket in November 2017 and again in April 2018. According to plaintiff, review of the docket obtained from the court after his November 2017 request revealed no activity with respect to dismissal of his complaint, but the docket he received on April 13, 2018 indicated that the court had granted defendants' motions and the action had been dismissed on December 5, 2017. (ECF Nos. 32 ¶¶ 5, 7-8; 38-4 at 3-4). Plaintiff filed his present motion, which was post-marked on April 27, 2018. Under the “prisoner mailbox rule, ” an inmate's pleadings are deemed filed at the moment he delivers the documents to prison officials to be mailed and not the date the documents are actually filed in court. Houston v. Lack, 487 U.S. 266, 275-76 (1988); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (“a pro se prisoner's . . . petition is deemed filed at the moment he delivers it to prison officials for mailing”). Although this rule has typically been applied in circumstances involving habeas petitions, courts within the Third Circuit have extended this rule to other contexts, including § 1983 claims. See White v. Pa. State Police, 408 Fed.Appx. 521, 522 (3d Cir. 2010) (a prisoner receives the benefit of the mailbox rule for a § 1983 complaint). Thus, plaintiff filed his present motion for extension within 14 days after notice of the entry of the court's order dismissing his case.

         Plaintiff's motion to reopen the time to appeal also indicates that because he never received a copy of the opinion and order he could not determine whether he had a basis to file a motion for reconsideration or a notice of appeal, and requests that the court grant his motion, send him the documents, and give him additional time to consider those options. On May 14, 2018, however, the court caused to be served upon plaintiff by first-class mail a copy of the December 5, 2017 memorandum opinion and order. Plaintiff did not subsequently file anything to indicate a basis for this court to reconsider its December 5, 2017 opinion and order.

         After filing the motion to reopen the time to appeal, and in order to support his contention that he was not sent and did not receive a copy of the court's December 5, 2017 memorandum opinion and order, on June 28, 2018, plaintiff filed his motion seeking to compel the Superintendent of SCI-Forest to submit a statement verifying that the only mail from the United States District Court for the Western District of Pennsylvania addressed to plaintiff that he had received during the period from November 1, 2017, to April 18, 2018, were mail pieces signed for by plaintiff on November 22, 2017, and April 13, 2018, (ECF No. 38), both of which related to plaintiff's request for a copy of the docket from this case. Defendants filed a joint response to this motion on July 12, 2018. (ECF No. 39).

         In response to plaintiff's motion to reopen the time for appeal, defendants contend that plaintiff only makes a bald assertion that he did not receive the memorandum and order, these documents indicate service, and there is no evidence that they were not sent. (ECF No. 36 at 4). They further point out that because plaintiff seeks to extend the time to appeal, his request for relief is governed solely by Federal Rule of Appellate Procedure 4, and not by Federal Rule of Civil Procedure 60. (ECF No. 36 at 3). Defendants argue that plaintiff failed to show diligence in monitoring the docket to discover the entry of the court's order. (ECF No. 36 at 5). According to defendants, because there is no evidence that the Clerk of Court failed to deliver a copy of the court's memorandum opinion and order to plaintiff, plaintiff's argument under Federal Rule of Appellate Procedure 4(a)(6) fails, (ECF No. 36 at 2); and because plaintiff failed to actively monitor the docket, any alleged “mistake” asserted by plaintiff under Rule 60(b)(1) is negated and any prejudice to plaintiff is nullified. (ECF No. 36 at 5).

         Federal Rule of Civil Procedure 60(b) provides in pertinent part that:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect; [or]
*** (6) any other reason that justifies relief.

         Fed. R. Civ. P. 60(b)(1) & (6).

         Federal Rule of Appellate Procedure 4(a)(6), with respect to the district court's authority to extend the time for appeal, however, expressly provides that:

[t]he 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 ...

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