Samuel T. Poole v. Family Court of New Castle County

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-2364
____________
SAMUEL T. POOLE,
Appellant
v.
FAMILY COURT OF NEW CASTLE
COUNTY; JOHN DOE
EMMA HAYES; FLORENCE F.
WRIGHT, ESQ.; JOHN W. NAILS,
ESQ.;
EDWARD J. ZETUSKY, Jr.; WALTER
T. REDAVID, ESQ., Judge;
DELAWARE COUNTY BAR
ASSOCIATION; ROBERT SNYDER;
Warden;
ATTORNEY GENERAL OF THE
STATE OF DELAWARE;
LORETTA M. YOUNG
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(Dist. Court No. 01-cv-00297)
District Court Judge: Hon. Joseph J.
Farnan, Jr.
Argued: December 2, 2003
Before: SLOVITER, ALITO, and
FRIEDMAN,* Circuit Judges
(Opinion Filed: May 13, 2004)
CHARLES R.A. MORSE (argued)
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Counsel for Appellant
KATHLEEN M. MILLER (argued)
Smith, Katzenstein & Furlow
800 Delaware Avenue, 7th Floor
Wilmington, DE 19899
Counsel for Appellee - John W. Nails, Esq.
STUART B. DROWOS (argued)
Delaware Department of Justice
820 North French Street
Wilmington, DE 19801-3509
Counsel for Appellees - Loretta Young and
the Family Court of Delaware in and for
the County of New Castle
______________________
OPINION OF THE COURT
______________________
*The Honorable Daniel M.
Friedman, Senior Judge of the United
States Court of Appeals for the Federal
Circuit, sitting by designation.

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ALITO, Circuit Judge:
This is an appeal from an order of
the District Court dismissing all of the
claims asserted in the pro se complaint
filed by Samuel T. Poole (“Poole”), an
inmate. Poole’s notice of appeal was not
filed on time, apparently because of delay
in receiving notice of the entry of the order
dismissing his claims. Instead of moving
to reopen the time to file an appeal under
Rule 4(a)(6) of the Federal Rules of
Appellate Procedure, Poole filed a notice
of appeal shortly after finally receiving
notice. We hold that we lack jurisdiction
to entertain this appeal.
I.
This case concerns the paternity of
a minor who Samuel T. Poole claims is his
son. In 2001, Poole filed what he called a
“Petition for a Writ of Habeas Corpus”
against several public officials and private
individuals, alleging that a series of actions
taken in connection with two family law
proceedings – one in Delaware and the
other in Pennsylvania – violated his Fifth
and Fourteenth Amendment rights by
interfering with his access to his son. The
District Court treated the case as an action
filed under 42 U.S.C. § 1983 and
permitted Poole to proceed in forma
pauperis. The District Court then
dismissed the claims against two
defendants sua sponte for lack of personal
jurisdiction, and the Court dismissed the
claims against the remaining defendants as
frivolous pursuant to 28 U.S.C. §§
1915(e)(2)(B)-1915A(b)(1).
II.
A.
Before reaching the merits of this
appeal, we are required to consider
whether we have appellate jurisdiction.
Bender v. Williamsport Area School Dist.,
475 U.S. 534, 541 (1986). The timeliness
of an appeal is a mandatory jurisdictional
prerequisite. United States v. Robinson,
361 U.S. 220, 224 (1960). In a civil case,
Rule 4(a)(1) of the Federal Rules of
Appellate Procedure generally requires a
notice of appeal to be “filed with the
district clerk within 30 days after the
judgment or order appealed from is
entered.” In this case, the order dismissing
Poole’s complaint was entered on March
26, 2002, and Poole deposited his notice of
appeal in his prison’s internal mail system
44 days later. Under Appellate Rule
4(c)(1), Poole’s notice of appeal is
regarded as having been filed upon
mailing, but because he did not mail the
notice of appeal within 30 days after the
relevant order was entered, he did not
comply with Rule 4(a)(1).
B.
Poole argues that his notice of
appeal should be regarded as having been
filed on time because there was a delay in
his receipt of notice from the district court
clerk’s office regarding the entry of the
order of dismissal. This delay resulted
from Poole’s transfer from on e
correctional institution to another shortly
before the order of dismissal was entered.
When Poole made his initial filing and
until some time in late March 2002, he was

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incarcerated in the Delaware Correctional
Center in Smyrna, Delaware. When the
District Court entered the order dismissing
Poole’s claims, the clerk of the court
apparently sent notice to Poole and all of
the other parties on that same day. The
notice to Poole was mailed to the facility
in Delaware, but by the time it arrived,
Poo le h a d b e e n t ra n s f e r re d to
Pen nsylvan ia’s State C orrecti onal
Institution at Graterford. The Postal
Service returned the notice to the clerk on
April 24, 2002, at which time the clerk
faxed an “address request” to the Delaware
Department of Corrections. The clerk
received Poole’s new address on April 29
and then mailed a copy of the order to the
correct address. Poole received the order
on May 6 and mailed his notice of appeal
three days later.
Poole argues that handwritten
letters that he sent to the District Court and
that were received on March 22 and April
1 should have alerted the clerk to his
transfer. The first letter was described on
the docket sheets as “Letter to Clerk of the
Court dated 3/21/02 by Samuel Poole RE:
questions regarding Habeas Corpus.” This
letter bore Poole’s address at the Delaware
facility, and in the midst of a discussion of
other matters, the letter stated: “I will be
returning to P.A. 3-24-02 is my Max out
date and then my detainer come up . . . .”
The second letter was described in
the docket sheets as “Letter by Plaintiff,
received 4/1/02, advising the Court he has
no pen, paper, or ability to make telephone
calls.” This handwritten note in its entirety
states:
Samuel T. Poole BN 5599
Box 244
Graterford Pa 19426-0244
To: Clerk
It will take me a couple of
weeks to get a pen or to
make a phone call or to get
some paper this is the only
way I can contact you with a
pencil
Thank you
Samuel T. Poole
By the time this letter was sent and
received, the clerk had already mailed
notice to Poole’s Delaware address, and
apparently because this letter did not state
expressly that Poole’s address had changed
and did not request that the clerk change
the address listed on the docket, the letter
did not alert the clerk’s office that the
notice sent a few days earlier had been
mailed to a facility where Poole was no
longer housed.
Poole argues that his notice of
appeal should be regarded as having been
filed on time under the reasoning of United
States v. Grana, 864 F.2d 312 (3d Cir.
1989). In Grana, a criminal case, we held
that, “in computing the timeliness of
filings which are jurisdictional in nature,
any delay by prison officials in
transmitting notice of a final order or
judgment to an incarcerated pro se litigant
s h o u l d b e e x c l u d e d f r o m t h e
computation.” Id. at 313. In the present
case, Poole complains about delay
attributable to the clerk’s office, not prison

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officials, but Poole argues that Grana
stands for the broad proposition that
“when official delay . . . interferes with
receipt of the notice of appeal, that delay
‘must be subtracted from calculation of
time for appeal.’” Appellant’s Br. at 1
(quoting Grana, 864 F.2d at 316).
Poole’s argument overlooks the
significance of the fact that Grana was a
criminal case. Because the present case is
civil, the approach that we took in Grana is
foreclosed by Federal Rule of Civil
Procedure 77(d) and Federal Rule of
Appellate Procedure 4(a). Under Civil
Rule 77(d), a district court clerk must
notify all parties not in default
“[i]mmediately upon the entry of an order
or judgment.” The Rule goes on to state,
however, that “[l]ack of notice of the entry
by the clerk does not affect the time to
appeal or relieve or authorize the court to
relieve a party for failure to appeal within
the time allowed, except as permitted in
Rule 4(a) of the Federal Rules of
Appellate Procedure.” Appellate Rule
4(a), in turn, provides a procedure for
reopening the time to file a notice of
appeal when the party desiring to appeal
does not receive notice of the entry of the
judgment or order. In a civil case,
therefore, the only way in which a party
may obtain relief based on a clerk’s failure
to serve notice of the entry of a judgment
or order is via Appellate Rule 4(a), not via
the Grana approach.
The Grana approach remains
viable2 in criminal cases because the
Federal Rules of Criminal Procedure do
not contain any provision analogous to
Civil Rule 77(d) and because Appellate
Rule 4(b), which deals with appeals in
criminal cases, does not contain any
provision analogous to Appellate Rule
4(a)(6).3 However, the Grana approach
cannot be used to extend the time for filing
2Grana was decided before
Appellate Rule 4(a)(6) was added and
corresponding changes were made in
Civil Rule 77(d). However, because
these changes do not apply to criminal
cases, Grana was not affected.
3The absence of criminal analogs
to FED. R. CIV. P. 77(d) and FED. R. APP.
P. 4(a)(6) is probably due to the fact that
the the vast majority of orders in criminal
cases from which a defendant may take
an appeal are judgments of conviction
and sentence. A criminal defendant must
be present when sentenced, and
consequently there is no need for the
district court clerk to notify the defendant
by mail regarding this occurrence. For
the same reason, there are not many
instances in which a criminal defendant
runs the risk of failing to file a timely
notice of appeal due to lack of notice
regarding the entry of the order from
which the appeal is taken. Grana was
one of the relatively unusual criminal
cases in which a defendant took an
appeal from an order other than a
judgment of conviction and sentence.

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a notice of appeal in a civil case.4
C.
1.
The remaining question that we
must consider is whether there is any way
in which Poole can obtain relief under
Appellate Rule 4(a)(6). That Rule states:
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 satisfied: (A)
the motion is filed within
180 days after the judgment
or order is entered or within
7 days after the moving
party receives notice of the
entry, whichever is earlier;
(B) the court finds that the
moving party was entitled to
notice of the entry of the
judgment or order sought to
be appealed but did not
receive the notice from the
district court or any party
within 21 days after entry;
and (C) the court finds that
n o p a r ty w o u l d b e
prejudiced.
The terms of Appellate Rule 4(a)(6)
thus contemplate the filing of a motion to
reopen within seven days after notice is
received. Here, Poole concedes that he
received notice on May 6, 2002. He thus
had until May 13 to move to reopen, but
instead of filing a motion to reopen, he
simply filed a notice of appeal on May 9.
Unless we can construe his notice of
appeal as a motion to reopen, he cannot
qualify for relief under Appellate Rule
4(a)(6).
2.
Our court has not decided whether
a pro se notice of appeal may be construed
as a motion to reopen under Appellate
Rule 4(a)(6), but we have held that a
notice of appeal cannot be construed as a
motion to extend the time to appeal in a
civil case under Appellate Rule 4(a)(5).
Herman v. Guardian Life Insurance Co.,
762 F.2d 288 (3d Cir. 1985) (per curiam).
In Herman, we noted that before Appellate
4Moreover, even if Civil Rule
77(d) and Appellate Rule 4(a) did not
preclude us from applying Grana in the
civil context, we would be reluctant to
extend Grana to a case such as the
present one, where the delay was not
primarily due to Poole’s status as an
inmate but to the simple fact that he was
moved. Although Poole argues that his
letter of April 1 should have alerted the
district court clerk that he had been
transferred, neither of his letters
expressly informed the clerk of that fact
or requested that his address be changed
in the court’s records. It is simply asking
too much of the district court clerk to
note that the address listed on the April 1
letter was different from the address that
Poole had previously provided.

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Rule 4(a)(5) was amended in 1979, we had
been “‘generally willing to treat a tardy
notice of appeal as the substantial
equivalent of a motion to extend the time
for filing on the ground of excusable
neglect.’” Id. at 289 (citation omitted).
We held, however, that the 1979
amendment prevented us from continuing
that practice. We noted that the first
sentence of Fed. R. App. P. 4(a)(5) permits
a district court to extend the time to file a
notice of appeal “upon motion,” and we
observed: “Thus, the filing of a motion is
expressly required to obtain an extension
of time.” Id. We also noted that the
Committee Notes on the 1979 amendment
to this provision stated that “‘[t]he
proposed amendment would make it clear
that a motion to extend the time must be
filed no later than 30 days after the
expiration of the original appeal time.’”
Id. at 289-90 (quoting Appellate Rule
4(a)(5), C ommittee Notes, 1979
Amendments). We therefore held that an
extension may not be granted under
Appellate Rule 4(a)(5) unless a motion is
filed.
Every other court of appeals to
consider the question has reached the same
conclusion. See 16A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER, EDWARD H.
COOPER, AND PATRICK J. SCHILTZ,
FEDERAL PRACTICE AND PROCEDURE §
3950.3 at 139 & n.11 (1999 & 2003 Supp.)
(citing cases). Not only are these decisions
supported by the language of Appellate
Rules 4(a)(5) and 4(a)(6) and their
Committee Notes, but the contrast with the
provision of the Appellate Rules governing
an extension of time to file a notice of
appeal in a criminal case is striking.
Appellate Rule 4(b)(4) expressly states
that in criminal cases an extension may be
granted “with or without motion.”
3.
The reasoning of Herman and like
cases from other circuits militates in favor
of a similar interpretation of Appellate
Rule 4(a)(6). The critical language in the
two rules is not materially distinguishable.
Appellate Rule 4(a)(5) states in relevant
part:
The district court may
extend the time to file a
notice of appeal if . . . a
party so moves no later than
30 days after the time
proscribed by this Rule 4(a)
expires . . . .
(emphasis added). Appellate Rule 4(a)(6)
contains similar language:
The district court may
reopen the time to file an
appeal . . . if . . . the motion
is filed within 180 days after
the judgment or order is
entered or within 7 days
after the moving party
receives notice of the entry .
. . .
(emphasis added). Likewise, the
Committee Notes for the two provisions
are hard to distinguish in the respect
relevant here. The Notes on the 1979
amendments to Rule 4(a)(5) state:

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The proposed amendment
would make it clear that a
motion to extend the time
must be filed no later than
30 days after the expiration
of the original appeal time .
. . .
(emphasis added).
The Notes on the 1991 amendments
to Rule 4(a)(6) state:
Reopening may be ordered
only upon a motion filed
within 180 days of the entry
of a judgment or order or
within 7 days of receipt of
notice of such entry,
whichever is earlier.
(emphasis added).
Because the decision in Herman
was based on language in Appellate Rule
4(a)(5) and its Committee Note that is not
significantly different from language in
Appellate Rule 4(a)(6) and its Committee
Note, we conclude that we should apply
Herman in the present context as well. We
therefore hold that Appellate Rule 4(a)(6)
requires a motion to reopen. While “no
particular form of words is necessary to
render a filing a ‘motion,’” Campos v.
LeFebvre, 825 F.2d 671, 676 (2d Cir.
1987), a simple notice of appeal does not
suffice.
We are aware that the Eleventh
Circuit reached a contrary result in Sanders
v. United States, 113 F.3d 184 (11th Cir.
1997) (per curiam). While acknowledging
the similarity between the language of
Appellate Rules 4(a)(5) and (6), see id. at
187 n.5, the Sanders panel gave several
reasons for interpreting the rules
differently, but we do not find these
reasons persuasive.
In part, the Sanders panel seems to
have been influenced by a belief that
parties who move for an extension under
Rule 4(a)(5) are (as a group) less
blameless than those (as a group) who
move to reopen the time to appeal under
Rule 4(a)(6).5 This assessment of the
relative blamelessness of the two groups is
hardly clear cut. Parties who seek
extensions under Rule 4(a)(5) are
sometimes entirely blameless – for
example, those who fail to file on time
because of “an act of God or unforeseen
human intervention.” Pioneer Inv. Serv.
Co. v. Brunswick Associates Ltd. P’ship,
507 U.S. 380, 388-89 (1993) (discussing
“excusable neglect” under a bankruptcy
rule). And parties who fail to file a timely
notice of appeal because they have not
5The Court stated that “when
through no fault of his own, a pro se
litigant does not receive notice of the
order from which he seeks to appeal, it
would be unjust to deprive him of the
opportunity to present his claim to this
court.” 113 F.3d at 187. The Court
added that a “notice of appeal filed late
because the appellant did not receive
notice of the judgment should be treated
differently (and more favorably) than
those filed late for other reasons (i.e.,
those governed by Rule 4(a)(5)’s
excusable neglect standard).” Id.

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received notice of the relevant judgment or
order may not be entirely blameless6 – for
example, the party who is informed by the
court that a dispositive order is expected
within a week but does not thereafter make
any effort to find out whether the order has
been issued. In any event, assuming that
there is some difference in the relative
blamelessness of the two groups, the
difference is far too slight to justify
divergent interpretations of the very
similar language of Rules 4(a)(5) and
4(a)(6).
The remaining reasons given in
Sanders are likewise unconvincing. The
Sanders Court stated that it had “a duty to
liberally construe” a pro se litigant’s
submission, 113 F.3d at 187 (internal
quotation and citation omitted), but this
duty cannot justify taking a fundamentally
different approach in interpreting filings
under Rules 4(a)(5) and 4(a)(6).
Finally, we are not moved by the
Sanders panel’s argument that its
interpretation of Rule 4(a)(6) is needed so
that prison officials will not prevent
inmates from taking timely appeals by
ensuring that they do not receive notice of
adverse decisions until after the time to
appeal has expired. This argument is
based on a hypothetical situation that is
unlikely to arise with any frequency, if at
all – namely, a case in which (a) prison
officials risk the consequences of
obstructing court mail in order to prevent
a prisoner from appealing a district court
decision that the prisoner has lost, (b) the
prisoner learns of the decision within 180
days, but (c) instead of moving to reopen
the time to appeal, the prisoner simply files
a notice of appeal. We will not permit our
interpretation of Rule 4(a)(6) to be
governed by such an extreme hypothetical.
If at some time in the future we are
presented with such an outrageous case,
we are confident that we have the tools to
ensure that the right to appeal is not
defeated.
In conclusion, we hold that relief
under both Appellate Rules 4(a)(5) and
4(a)(6) requires the filing of a motion, not
just a notice of appeal. We understand that
this interpretation may lead to harsh results
under both rules, and it may be that it
would be preferable to treat a pro se notice
of appeal as a motion under both rules.
But we believe that Appellate Rules
4(a)(5) and 4(a)(6) must be read
consistently, and thus we conclude that
Rule 4(a)(6) demands a motion.
III.
Because Poole’s Notice of Appeal
was not timely filed and Poole failed to
move to reopen the time to file an appeal,
we lack jurisdiction to decide the merits of
his appeal. Therefore, for the reasons set
out above, this appeal is dismissed.
6Courts have faulted such parties
for failing to make due inquiry about
adverse judgments or orders. See, e.g.,
O.P.M. Leasing Services Inc., 769 F.2d
911 (2d Cir. 1985) (party who was not
served with notice under Civil Rule 77(d)
faulted for not looking for notice of order
in legal periodical).

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