Goodman v. Everett , 388 F. App'x 269 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7384
STEVEN WAYNE GOODMAN,
Plaintiff – Appellant,
v.
D. B. EVERETT, Warden, SIISP; D. ROBINSON, Regional
Director, Eastern District of the DOC; GENE JOHNSON,
Director of the DOC; K. BASSETT, Warden, Keen Mountain
Correctional Center; PIXLEY, Assistant Warden, SIISP; MR.
PHELPS, Correctional Officer, KMCC; R. SANDIFER,
Institutional Ombudsman, KMCC; JOHN/JANE DOE, Regional
Ombudsman, Western Region of the DOC; K. PICKEREL,
Assistant Warden, KMCC; L. HUFFMAN, Regional Director,
Western Region of the DOC; G. ROBINSON, Manager, Ombudsman
Services United for the DOC; JOHN JABE, Deputy Director of
the DOC; HAYES, Institutional Investigator, SIISP; C.
HARRIS, Housing Unit Manager and Institutional
Classification Authority-Special Housing Unit; J. HARRIS,
Treatment Programs Supervisor; OFFICER GILMORE, Chief
Security, SIISP; JOHN/JANE DOE, #2, Central Classification
Services for the DOC; G. BASS, Manager, Offender Management
Services; OFFICER BARBOUR, Office Service Specialist,
SIISP; MASSENBURG, Institutional Ombudsman, SIISP; W.
ROLLINS, Operations Officer, SIISP; G. SIVELS, Regional
Ombudsman Eastern Region of the DOC; NICHOLS, Psychologist,
SIISP; RIVERS, Psychologist, SIISP; GENERAL, Psychiatrist,
SIISP; L. STANDFORD, Employee of Prison Health Services and
Health Service Administrator at SIISP; S. TAYLOR, Employee
of Prison Health Services and Director of Nursing at SIISP;
K. WATSON, Director of Audits and Regulation Compliance for
Prison Health Services; C. COUTHER, Regional Nurse
Administrator, Eastern Region of the DOC,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:06-cv-00849-RLW)
Submitted: June 24, 2010 Decided: July 16, 2010
Before KING, DUNCAN, and AGEE, Circuit Judges.
Remanded by unpublished per curiam opinion.
Steven Wayne Goodman, Appellant Pro Se. Mark R. Davis, Assistant
Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Steven Wayne Goodman seeks to appeal various orders of
the district court entered in his 42 U.S.C. § 1983 (2006) suit.
The district court entered its final order on May 1, 2009. On
May 21, Goodman filed a Fed. R. Civ. P. 59(e) * motion for
reconsideration dated May 14. The certificate of service was
neither notarized nor sworn to under penalty of perjury, and it
stated that the motion was mailed “first class mail, postage
prepaid.” The district court denied the Rule 59(e) motion on
June 18. On July 16, Goodman filed a notice of appeal, dated
July 15, and seeking to appeal inter alia the denial of his
motion for reconsideration and the district court’s May 1 order.
Under Fed. R. App. P. 4(a)(4)(A)(iv), a timely motion
to alter or amend the judgment under Fed. R. Civ. P. 59(e) tolls
the time for filing a notice of appeal of the underlying
judgment. In order to be timely, a motion to alter or amend
must be filed within ten days of the entry of judgment in
question, and the district court is without jurisdiction to
*
The citations in this opinion to the Federal Rules of
Appellate Procedure and the Federal Rules of Civil Procedure are
to the Rules in effect at the time the relevant documents were
filed in district court. The Rules were amended effective
December 1, 2009, to provide different appeal periods and
different methods of calculating dates. These amendments do not
affect the timeliness of Goodman’s appeal because the appeal
period expired before the effective date of the amendments.
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extend this time period. Fed. R. Civ. P. 6(b)(2), 59(e). In
this case, due to intervening weekends that are excluded from
time computation under Fed. R. Civ. P. 6(a), Goodman had until
May 15, 2009, to file a timely Rule 59(e) motion. While
Goodman’s motion was dated May 14, it was not filed until
May 21.
Federal Rule of Appellate Procedure 4(c)(1) states
that an incarcerated inmate’s notice of appeal is deemed filed
when deposited into the institution’s mail system. However, the
Rule further notes that “[i]f an institution has a system
designed for legal mail, the inmate must use that system to
receive the benefit of this rule.” For institutions without
legal mail systems, an inmate may submit a declaration or
notarized statement consistent with Rule 4(c). See United
States v. Ceballos-Martinez, 387 F.3d 1140, 1144-45 (10th Cir.
2004); see also Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir.
2001) (holding that, even in institutions with legal mail
systems, declaration or notarized statement is still required).
Although the district court apparently considered
Goodman’s Rule 59(e) motion timely, we find that the record is
insufficient to determine when Goodman delivered his Rule 59(e)
motion to prison officials for filing and whether he
appropriately followed proper channels for legal mail.
Resolution of these questions is determinative of the issues
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properly before this court on appeal. If the Rule 59(e) motion
was not timely filed, the time to appeal the underlying judgment
was not tolled, thus rendering untimely Goodman’s appeal of all
orders prior to June 14, 2009.
Accordingly, we remand to the district court for a
determination of whether Goodman’s Fed. R. Civ. P. 59(e) motion
was timely filed. The record, as supplemented, will then be
returned to this court for further consideration. We deny
Goodman’s motion to recuse.
REMANDED
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