United States District Court, D. Delaware
PABLO A. DAMIANI, Plaintiff,
DETECTIVE DUFFY, et al., Defendants.
Plaintiff Pablo A. Damiani, a former inmate at the James T.
Vaughn Correctional Center, Smyrna, Delaware, filed this
action pursuant to 42 U.S.C. § 1983. He appears pro
se and has been granted leave to proceed in forma
pauperis. (D.I. 7). Plaintiff was transferred to the
Pennsylvania Department of Corrections and is currently
housed at SCI Houtzdale in Houtzdale, Pennsylvania. On
October 4, 2017, the Court entered judgment in favor of
Defendants and against Plaintiff. (D.I. 307.) On November 1,
2017, the Court received a filing from Plaintiff seeking an
extension of time to file a motion to alter the judgment.
(D.I. 311). The Court denied the motion on November 3, 2017.
(D.I. 313). Before the Court are Plaintiff's motion to
alter the judgment, opposed by Defendants, and
Plaintiff's motion for an extension of time to file an
appeal. (D.I. 314, 318, 319, 320, 321).
Motion to Alter the Judgment.
On November 13, 2017, the Court received Plaintiffs motion to
alter the judgment. A motion to alter or amend the judgment
falls under Fed.R.Civ.P. 59(e). Rule 59(e) requires that a
motion to alter a judgment must be filed no later than 28
days after the entry of the judgment. The judgment was
entered on October 4, 2017, and Plaintiff was required,
therefore, to file the motion on or before November 1, 2017.
Pursuant to the prison mailbox rule, a submission for a
pro se incarcerated party is deemed filed on the
date the submission is handed to prison officials for
mailing. See Houston v. Lack, 487 U.S. 266 (1988);
Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998);
Gibbs v. Decker, 234 F.Supp.2d 458, 463 (D. Del.
2002). Here, Plaintiff signed the motion on October 27, 2017,
and signed the certificate of service on October 30, 2017.
(D.I. 314 at pp.8, 58). After Defendants opposed the motion
as untimely filed, Plaintiff advised the Court that he filed
the motion on October 29, 2017. (D.I. 317). A document
submitted by Plaintiff, however, belies his contention.
Attached to Plaintiffs motion is an inmate's request to
staff member. (D.I. 314-1 at 2). The request from Plaintiff,
dated October 27, 2017, asked for photocopies of his motion.
(Id.). It was received by prison officials on
October 30, 2017, who responded to Plaintiff on that date
that he did not have the funds to make the copies.
(Id.). The response to Plaintiff was placed in the
RHU (i.e., Restricted Housing Unit) mail on October
30, 2017, one day after Plaintiff claims he filed his motion.
(Id.). It is highly unlikely that Plaintiff received
his response on October 30, 2017, the same day it was mailed
to him or that he could have filed his motion on October 29
when his request for copies of the motion was still in the
hands of prison officials.
Absent evidence to the contrary, this Court normally gives an
inmate the benefit of the doubt to find a filing is delivered
to prison authorities on the date that it is signed by an
inmate. And, when using the three dates provided by Plaintiff
(October 27, 29, 30), at first blush, it appears that the
motion was timely filed. However, given the varying filing
dates provided by Plaintiff and the inmate photocopying
request, I am not convinced that Plaintiff gave the document
to prison authorities for mailing on the date that motion is
envelope containing the filing is postmarked November 7, 2017
(D.I. 314 at p.60), and was received and docketed by this
Court on November 13, 2017. The Court has reviewed the
Plaintiffs filings since his transfer to the Pennsylvania
Department of Corrections. No other filing in this case has
had a mailing lag time of more than two to three working days
from the date the certificate of service was signed to the
date of the postmark. It is implausible that Plaintiff's
motion took more than a week to be mailed out of the
institution once he delivered it. Instead, it is more likely
that Plaintiff pre-dated his motion, or that he prepared and
signed it, but did not deliver it for mailing until after he
received the Court's November 3, 2017 order that denied
his motion to extend the time to file a motion to alter the
judgment. Accordingly, the Court considers the filing date to
be the date of the postmark - November 7, 2017.
motion is untimely, having been filed approximately one week
after the required time. Notably, the Court cannot grant an
extension to the time limit provided in Rule 59(e). See
Fed.R.Civ.P. 6(b)(2) (court must not extend the time to act
under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and
60(b)). Therefore, the motion to alter the judgment will be
denied as untimely filed. See, e.g., Hamlin v. Vital
Records Dep't, 2011 WL 3329268 (W.D. Pa. Aug. 2,
if the submission were timely, Plaintiffs motion to alter the
judgment fails on the merits because he has not set forth any
intervening changes in the controlling law; new evidence; or
clear errors of law or fact made by the Court in its October
4, 2017 memorandum opinion and order that would warrant
granting reconsideration. See Max's Seafood Cafe v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Rather,
Plaintiff disagrees with the Court's decision, claiming
it is wrong, false, has no merit, and did not consider
Plaintiff's Complaint or his statements, and that there
remain genuine issues as to material facts. (D.I. 314 at pp.
1, 4, 5, 7). The Court has once again considered the filings
of the parties and the evidence of record. Upon review, the
Court finds that Plaintiff has failed to demonstrate any
grounds to warrant reconsideration of the Court's October
4, 2017 memorandum opinion and order that found in favor of
Defendants and against Plaintiff. (D.I. 304, 306, 307).
Motion for an Extension of Time.
Plaintiff also filed a motion for an extension of time to
file a notice of appeal. (D.I. 321.) While it appears that he
is seeking an extension of time to appeal the October 4, 2017
memorandum opinion and order (D.I. 305, 306), it is also
possible he is anticipatorily seeking an extension of time to
file an appeal if (as is the case) the motion to alter the
judgment (D.I. 314) is denied.
October 24, 2017, the Court entered an order and granted
Plaintiffs filing (D.I. 309) that it construed as a motion
for an extension of time to file an appeal of the October 4,
2017 memorandum opinion and order. (See D.I. 310).
The time for Plaintiff to file an appeal of the October 4,
2017 memorandum and order has been extended to (and
including) December 3, 2017. (See D.I. 310, 313.) The Federal
Rules of Appellate procedure preclude the Court from granting
additional time. See Fed. R. App. P. 4(a)(5)(C). In
other words, the Court has already given Plaintiff the
maximum possible extension of time to file a notice of
With regard to an extension of the time to file a notice of
appeal from the denial of Plaintiff's motion to alter the
judgment, the Federal Rules of Appellate Procedure require
that a notice of appeal in a civil case be filed within 30
days after the order appealed from is entered on the district
court's docket. See Fed. R. App. P. 4(a)(1)(A).
Plaintiff made his request prior to the Court's ruling on
the motion to alter the judgment and, ...