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Wagner v. Iames

United States District Court, D. Maryland

June 26, 2018

JOHN ALEXANDER WAGNER, #371-133 Plaintiff,
BRIAN G. IAMES, et al. Defendants.


          Ellen Lipton Hollander United States District Judge

         The United States Court of Appeals for the Fourth Circuit remanded this case on April 6, 2018 (ECF 62), for the limited purpose of allowing the District Court to determine whether plaintiff-appellant John Alexander Wagner, a State of Maryland prisoner, noted a timely appeal to the Fourth Circuit with respect to the disposition of this civil rights suit.

         No hearing is necessary to resolve the matter. See Local Rule 105.6. For the reasons that follow, I conclude that the appeal is untimely.

         I. Factual and Procedural Background


         John Alexander Wagner was an inmate at the North Branch Correctional institution (“NBCI”) in Cumberland, Maryland.[1] He filed a § 1983 civil rights action against multiple defendants, asserting numerous claims, including use of excessive force; failure to protect from harm; denial of adequate medical care; denial of due process; and retaliation. See ECF 1; ECF 1-1; ECF 1-2; ECF 1-3; ECF 1-4.

         In a Memorandum Opinion (ECF 44) and Order (ECF 45) of February 27, 2017, I addressed dispositive motions filed by the various defendants.[2] Of relevance here, I granted the summary judgment motion (ECF 26) filed by defendant Janette Clark, N. P., awarding summary judgment in her favor with respect to Wagner's claim of inadequate medical care. See ECF 45, ¶ 1. In addition, defendants Warden Frank B. Bishop, Jr.; Lt. Bradley A. Wilt; Sgt. Brian G. Iames; C.O. II Dean W. Rounds, Sr.; C.O. II Cody W. Gilpin; and C.O. II Warren G. Mallow (“State Defendants”) moved in the alternative to dismiss or for summary judgment. ECF 33. Construing the motion as a motion to dismiss, I granted it as to Wilt. ECF 45, ¶ 2. With respect to Wagner's due process claim, I construed the motion as one to dismiss and granted it as to defendants Bishop, Gilpin, Rounds, Iames, and Mallow, without prejudice to Wagner's right to file an amended complaint. Id. ¶ 5. With respect to Wagner's excessive force claim, I construed the motion as one for summary judgment, and denied summary judgment as to Gilpin, Rounds, and Mallow. Id. ¶ 6. However, I granted summary judgment in favor of Iames and Bishop. Id. In regard to Wagner's failure to protect claim, I denied summary judgment as to Mallow and Iames, but granted summary judgment in favor of Gilpin, Rounds, and Bishop. Id. ¶ 7. As to Wagner's claim of retaliation, I denied summary judgment as to Gilpin, Rounds, Iames, and Mallow, but granted summary judgment in favor of Bishop. Id. ¶ 8. And, with respect to Wagner's claim of inadequate medical care, I granted summary judgment in favor of Bishop, Gilpin, Rounds, Iames, and Mallow. Id. ¶ 9.

         In light of my rulings, I also granted Wagner's motion for appointment of pro bono counsel. ECF 45, ¶ 11. By Order of March 7, 2017, Aidan Smith, Esquire was appointed to represent Wagner. ECF 46.

         Smith filed an Amended Complaint on behalf of Wagner on April 19, 2017. ECF 47. The Amended Complaint included all of the remaining defendants, certain defendants who had been named in the original Complaint but who were never served, and two entirely new defendants. The defendants who had been named initially but not served were Nicolas Soltas, Corey Dolley, and Christopher Anderson.[3] The new defendants were Earl Ritchie and Brandon Self. Nurse Clark was not named as a defendant in the Amended Complaint.

         Iames, Rounds, Gilpin, and Mallow filed an Answer to the Amended Complaint on May 17, 2017. ECF 50. Soltas, Dolley, Ritchie, Self, and Anderson answered on June 6, 2017. ECF 52.

         At the same time that Wagner was involved in the litigation of this case, he was also involved in the litigation of another civil rights case that was assigned to me: Wagner v. Beachy, ELH-14-791 (“Beachy”). Beachy involved approximately 50 defendants. See Beachy, ECF 82 (Memorandum Opinion of March 19, 2015); ECF 139 (Memorandum Opinion of March 8, 2016). In December 2016, I appointed Nicholas Szokoly, Esquire to serve as Wagner's pro bono counsel in Beachy. See ECF 153; ECF 154.

         Of relevance here, a writ of habeas corpus was issued to the Warden of NBCI on June 19, 2017, commanding the presence of Wagner at a settlement conference to be held in the federal courthouse in Baltimore on June 28, 2017, before Magistrate Judge Stephanie Gallagher. The writ is docketed only in Beachy. See ELH-14-791, ECF 166; ECF 167. The docket in Beachy reflects that Judge Gallagher conducted a settlement conference on that date.

         I received an email from Judge Gallagher at 12:36 p.m. on June 28, 2016, advising that both Beachy and this case had been settled.[4] The email specifically referenced both ELH-14-791 and ELH-16-0098. Judge Gallagher stated, in part: “I held a settlement conference in the first case today [i.e., Beachy] and we wound up settling both of them, so you can issue two Rule 111 orders.”

         Upon receipt of that email from Judge Gallagher, I issued a Settlement Order on June 28, 2017, for each case, under Local Rule 111, dismissing both this case and the Beachy case. See ELH-16-98, ECF 54; ELH-14-791, ECF 168. Of import here, the dismissals were without prejudice to the right of any party to move for good cause to reopen either action within 30 days. Id. No such motion was ever filed. See Docket.

         On August 15, 2017, after this Court issued the Rule 111 orders, Smith sent two settlement agreements and mutual releases to Wagner. ECF 68-2. On August 31, 2017, the Court received from Mr. Wagner a copy of his letter to Smith, referencing the settlement agreements. ECF 55. The content of the undated letter indicates that Wagner wrote the letter on August 15, 2017, in response to the letter from Smith. Id. at 1.

         In particular, Wagner complained to Smith about certain “discrepancies” in the settlement terms, and said that he “chose to set aside any and all settlement agreements.” Id. at 2. Wagner acknowledged that his lawyer had stated “that there were no grounds to do so, ” but Wagner expressed his disagreement with that view. Id. Wagner noted that he wanted defendants to pay costs, he wanted an ICC transfer (id. at 2), and he “decline[d] to sign [the settlement agreement] and am returning to you.” Id. at 3. Wagner concluded: “Whereas, the plaintiff, John A. Wagner does not agree to the terms set therein the Settlement/Mutual Release Agreement and therefore wish to set aside said agreement, and wish to proceed with a jury trial.” Id. at 3.

         Months later, on December 8, 2017, the Clerk received for docketing a “Notice Of Appeal” from Wagner. ECF 56. The envelope containing the Notice Of Appeal is docketed at ECF 56 at 5. The date stamp on the back of the envelope reflects that it was processed by NBCI as “Outgoing Inmate Mail” on December 6, 2017. Id. Although the Notice Of Appeal was not received by the Clerk until December 8, 2017, it was purportedly signed by Wagner on June 29, 2017. Id. at 1. Wagner specifically stated that he was appealing “from the Order Granting Summary Judgment to Medical Defendant Janette Clark, N.P ..... ” Id. See ECF 45.

         Two certificates of service are attached to the Notice Of Appeal, each purportedly dated June 29, 2017. As to the first Certificate of Service (id. at 2), Wagner “certif[ied]” that on June 29, 2017, the Notice Of Appeal was “mailed to the Office of the Attorney General, counsel for Defendants[.]” The second Certificate of Service (id. at 3) stated that the Notice Of Appeal was “mailed postage prepaid to the following: Gina M. Smith, Esq. [counsel for Nurse Clark] . . . Thomas F. Dernago, Asst. Att. General/Stephanie Lane-Weber, Asst. Att. General, . . . Aiden F. Smith, Esq. . . . [and] Nicholas Szokoly, Esquire . . . .”

         Wagner included with the Notice Of Appeal a letter to the Clerk of this Court, dated December 4, 2017. ECF 56 at 4. There, Wagner stated, inter alia, that “a settlement agreement was reached by all parties” on June 28, 2017. Id. (emphasis added). However, he complained that it “has yet to be honored, ” as he had not yet received the settlement proceeds of $4, 000. Id. And, he said, id.: “Additionally, plaintiff filed a Motion for Notice of Appeal on the above cases where it is or was in part granting judgment to defendants. However, that motion was never responded to . . . . Enclosed is an extra copy. . . .” Id.

         On January 2, 2018, the Clerk docketed a copy of a letter from Wagner to Smith, dated December 22, 2017. See ECF 60. Wagner stated: “On June 28, 2017, a settlement between the parties was reached therefore plaintiff perceived that to be the final judgment in all proceedings.” (Emphasis added). Wagner also stated, id.: “On June 29, 2017, plaintiff filed his notice of appeal regarding the grant of summary judgment . . . in favor of medical defendant Janette Clark . . . .”

         On February 6, 2018, the Clerk docketed correspondence from Wagner, dated January 31, 2018, advising that Wagner had been transferred to an out-of-state penal institution, pursuant to the “ICC.” ECF 61. Wagner also expressed his desire for the Maryland Attorney General to “forward the agreed upon [settlement] funds . . . with exigency.” Id.

         In a per curiam opinion issued on April 6, 2018 (ECF 62), the United States Court of Appeals for the Fourth Circuit remanded this case to the District Court for the limited purpose of determining the timeliness of Wagner's Notice Of Appeal. Id. at 3. The Fourth Circuit said: “Wagner submitted a notice of appeal dated June 29 but received by the district court after the expiration of the 30-day appeal period.” Id. (citing Fed. R. App. P. 4(c)(1)). The Court also referenced Wagner's letter to the Clerk dated December 4, 2017, “in which Wagner asserted that he had received no response to a previously filed notice of appeal.” Id.

         The Fourth Circuit observed that because Wagner is incarcerated, his Notice Of Appeal is deemed filed on the date it was properly delivered to prison officials for mailing. Fed. R. App. P. 4(c)(1). But, it pointed out that “the record does not conclusively establish when Wagner submitted his notice of appeal to prison officials.” Id. Therefore, it remanded the matter to this Court for further findings.

         In response, I issued an Order of April 11, 2018 (ECF 63), directing Wagner “to provide a dated and signed Declaration or other notarized statement that attests to the date he deposited the Notice of Appeal in the institutional internal mail system and that postage was prepaid.” Id. at 2. And, I directed counsel for the parties to “provide verified information to the court as to the date counsel received Wagner's Notice of Appeal”, including “copies of prison mail logs or other relevant ...

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