United States District Court, D. Maryland
Lipton Hollander United States District Judge
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
hearing is necessary to resolve the matter. See
Local Rule 105.6. For the reasons that follow, I conclude
that the appeal is untimely.
Factual and Procedural Background
Alexander Wagner was an inmate at the North Branch
Correctional institution (“NBCI”) in Cumberland,
Maryland. 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.
Memorandum Opinion (ECF 44) and Order (ECF 45) of February
27, 2017, I addressed dispositive motions filed by the
various defendants. 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.
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.
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. The new defendants were Earl Ritchie
and Brandon Self. Nurse Clark was not named as a defendant in
the Amended Complaint.
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.
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.
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.
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. 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.”
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.
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
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.
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.
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 . . . .”
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.
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 . . . .”
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
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.
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
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