United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
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
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).
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.
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
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 ...