United States District Court, M.D. Florida, Fort Myers Division
ORDER ON REMAND
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on a limited remand from the
Eleventh Circuit to determine whether Mr. Deverso is entitled
to a reopening of the appeal period under Rule 4(a)(6). (Doc.
18, 2017, appellant Donald J. Deverso filed a Motion to
Appeal (Doc. #214) seeking to appeal the Court's February
9, 2017, Opinion and Order (Doc. #208) dismissing
his untitled letter motion for relief from judgment for lack
of jurisdiction. The docket reflects that a copy of the
February 9, 2017, Opinion and Order was mailed to Mr. Deverso
on February 13, 2017. On February 27, 2017, Mr. Deverso
placed a Motion for Reconsideration (Doc. #209) in the mail,
which motion was filed with the Clerk on March 6, 2017. The
request for reconsideration was denied the next day on March
7, 2017. (Doc. #210.) The docket does not reflect that a copy
of this March 7, 2017 Order was mailed to Mr. Deverso.
Deverso's Motion to Withdraw Motion for Reconsideration
(Doc. #211) dated March 1, 2017, but placed in the U.S. Mail
on June 2, 2017, was filed with the Clerk on June 5, 2017.
Mr. Deverso sought to withdraw his previously filed Motion
for Reconsideration because he “realize[d] that this
Court will continue its criminal, corrupt practices on
avoidness [sic] and manipulation [sic] of the facts and
issues to deny Petitioner his Constitutional Rights.”
(Doc. #211, p. 1.) On June 6, 2017, the motion was denied as
moot by Endorsed Order (Doc. #212) because the Court had
already ruled upon the motion in the Order dated March 7,
2017. (Doc. #210.)
6, 2017, the Court directed the Clerk to provide a copy of
the Court's March 7, 2017 Order (Doc. #210) with a copy
of the Endorsed Order (Doc. #212) to Mr. Deverso because
there was no record on the docket that the March 7, 2017
Order had reached Mr. Deverso, and no indication in his
motion to withdraw acknowledging that he had received a copy
of that March 7, 2017, Order. On June 14, 2017, Mr. Deverso
placed a letter inquiry to the Clerk of Court in the mail
stating that he received the March 7, 2017 Order on June 12,
2017, and questioning why the delay had occurred in receiving
the Order. The letter was directed to be docketed for the
record, but was not treated as a motion to the Court for
Deverso's Motion to Appeal (Doc. #214) dated June 23,
2017, was filed in the District Court on July 18, 2017.
Therein Mr. Deverso set forth the argument that he should not
be penalized for the untimely mailing of the Court's
Order. (Doc. #214-1, p. 2.) On July 19, 2017, the Court
issued an Order (Doc. #217) finding that the appeal was not
being taken in good faith for the reasons stated in the
February 9, 2017 Opinion and Order, but noting Mr.
Deverso's argument that the delay in receiving orders of
the Court should not impact the timeliness of his appeal.
(Doc. #217, p. 1 n.1.) The Court otherwise made no
determinations on the timeliness issue at that time.
civil case, the Notice of Appeal must be filed within
30 days after entry of the order being appealed from. Fed. R.
App. P. 4(a)(1)(A). An appeal by an inmate confined in an
institution is entitled to the benefit of the date the
document is deposited in the institution's internal mail
system when accompanied by a postmark or date stamp. Fed. R.
App. P. 4(c). The mailing envelopes of inmates are scanned
and filed on the docket, and the Motion for Appeal bears the
date of June 23, 2017. As noted by the Eleventh Circuit, on its
face, the appeal is untimely from the February 9, 2017,
Opinion and Order, and March 7, 2017, Order. Under Rule
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
(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
Fed. R. App. P. 4(a)(6). The Court finds that all three
conditions are met. Based on a review of the docket, and
having conferred with the Clerk's Office, the Court finds
that Mr. Deverso did not receive notice within 21 days of the
March 7, 2017, Order, and the Clerk did not record service on
the docket before June 6, 2017. Mr. Deverso mailed a letter
to the Clerk regarding the delay within one week of receiving
a copy of the March 7, 2017 Order. Mr. Deverso also filed his
Motion to Appeal, construed by the Eleventh Circuit as a
motion to reopen the appeal period, within 14 days of the
date he actually received notice (June 12, 2017), which date is
also well within 180 days of the entry of the March 7, 2017
Order. The Court finds no prejudice to any party if the
appeal is reopened.