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Pullen v. SOCF Mailroom

United States District Court, S.D. Ohio, Western Division

September 5, 2019

TERRY TYRONE PULLEN, JR., Plaintiff,
v.
SOCF MAILROOM, et al., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), alleges that defendants SOCF Captain Whitman, Ms. Kezee, Mr. Satterfield, Mr. Casey Meade, and Ms. Kelly Madaesi delayed the mailing of his legal mail to the Ohio Court of Appeals resulting in the dismissal of his appeal. This matter is before the Court on defendants' motion for summary judgment (Doc. 49) and plaintiffs memorandum in opposition (Doc. 55).

         I. Facts

         This case involves the dismissal of plaintiff s appeal to the Ohio Court of Appeals, Fourth Appellate District. The background is set forth in that court's order of September 29, 2016 dismissing plaintiffs appeal:

On June 8, 2016, Appellant Terry T. Pullen, Jr. filed an untimely notice of appeal from the trial court's entry denying his motion to withdraw his guilty plea. On the same day, the Pickaway County Clerk of Courts issued a deficiency notice indicating that Pullen's appeal was deficient for numerous reasons. On July 12, 2016, we advised Pullen that he had failed to comply with the local rules of court to perfect his appeal. We also ordered him to perfect the appeal within 10 days or we would dismiss it. In response, Pullen filed a request for extension of time to appeal. We granted the request and ordered Pullen to perfect the appeal by August 31, 2016. To date, Pullen has taken no further action to perfect his appeal.
Because appellant has not properly perfected this appeal and because he has not complied with an order of this Court, we sua sponte DISMISS this appeal.

(Doc. 56 at 9).

         On August 1, 2016, plaintiff was granted an extension of time until August 31, 2016 to perfect the appeal filed in State of Ohio v. Terry T. Pullen, Jr., No. 16-CA-11. (Doc. 49-3). Plaintiff states that on August 23, 2016, he addressed an envelope to the Clerk of Court, Fourth Appellate District, 14 South Point Street, Suite 38, Chillicothe, Ohio 45601. Enclosed in the envelope was plaintiffs motion for an additional extension of time of 15 days within which to file a notice of appeal in the case. (Doc. 55-1). Apparently, and unbeknownst to plaintiff, the Chillicothe location of the Fourth District Court of Appeals to which he addressed the envelope was not the correct filing location.

         Attached to the envelope was a "personal A/C withdrawal check-out-slip form" addressed to the Clerk of Court and witnessed by C/O Henson on August 23, 2016. (Doc. 55-1, ¶ 2). Plaintiff states that on August 23, 2016, he placed the envelope and cash slip in the K2 mailbox to be forwarded to the SOCF Cashier's Office and approved as outgoing free legal mail before being mailed by the SOCF mail room workers.

         Plaintiff states that on August 25, 2016, his envelope was stamped "free legal mail" by the SOCF Cashier's Office. He alleges, however, that someone in the mail room did not mail the envelope until September 19, 2016. On September 26, 2016, plaintiff received a letter from the Fourth District Court of Appeals regarding his request for an extension of time to file a notice of appeal. The letter, dated September 22, 2016, advised plaintiff of the following:

This office is in receipt of your document for filing. The proper procedure for filing documents in the Fourth District Court of Appeals is to send them directly to the clerk of courts of the county in which the case originated. Since the case originated in Pickaway County, you will need to forward an original and four copies to:
James W. Dean Clerk of Courts Pickaway County Courthouse 207 S. Court St., P.O. Box 280 ...

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