United States District Court, D. South Carolina
RICHARD MARK GERGEL JUDGE
matter comes before the Court on a limited remand from the
United States Court of Appeals for the Fourth Circuit to
address the issue of whether Petitioner's untimely filing
of his appeal might be excused by a showing of excusable
neglect or good cause under Rule 4(a)(5) of the Federal Rules
of Appellate Procedure. Gilmore v. Stevenson, No.
15-7598, 2016 WL 2894009 (4th Cir. May 18, 2016). By way of
background, the Court adopted the Report and Recommendation
of the Magistrate Judge and entered summary judgment for
Respondent on August 13, 2015. Petitioner filed no written
objections to the Report and Recommendation. The Court denied
in the same order a Certificate of Appealability. (Dkt. No.
Notice of Appeal was dated September 17, 2015, and marked
received by the Fourth Circuit on September 22, 2015. (Dkt.
No. 30). The envelope addressed to the Fourth Circuit was
marked "Received" by the prison mailroom on
September 17, 2015, and was postmarked the same day. (Dkt.
No. 30-1). Petitioner also filed with this Court a Motion to
Inform the Court dated September 17, 2015, and filed on
October 8, 2015. (Dkt. No. 33). The envelope accompanying the
Motion was marked "Received" by the prison mailroom
on September 17, 2015, and postmarked that same day, (Dkt.
appeal in a federal civil case must be filed within 30 days
"after entry of judgment or order appealed from, "
Fed. R. App. P. 4(a)(1)(A). For an incarcerated inmate, such
as Petitioner, the date filed is the date the appeal notice
is deposited in the institution's internal mail system.
Fed. R. App. P. 4(c)(1). The appellate rules further provide
that if the last day for filing an appeal includes a
Saturday, Sunday or legal holiday, "the period continues
to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday." Fed. R. App. P. 26(a)(1). The
period for filing an appeal can be extended by the district
court if a motion for extension of time to file an appeal is
made and the petitioning party shows excusable neglect or
good cause. No extension may be granted, however, more than
30 days after the time for filing the appeal. Fed. R. App. P.
these rules, the 30-day period for Petitioner to file an
appeal would have run on Saturday, September 12, 2015, which
would have made the notice of appeal due on Monday, September
14, 2015. The Notice of Appeal was stamped in at the prison
mailroom on September 17, 2015, and, in the absence of an
extension to file, would have been untimely. The Fourth
Circuit in its limited remand order directed this Court to
determine whether the Petitioner has shown excusable neglect
or good cause for a 30-day extension to file his Notice of
asserted in his Motion to Inform the Court that his
dormitory, which he indicates was the B Wing of the Wateree
Unit, was in a lockdown situation from September 9 to
September 16, 2015, and that he filed his Notice of Appeal as
soon as the lockdown ended. (Dkt. No. 33). Petitioner further
stated that he had requested that his dorm supervisor, whom
he identified as "Lt. Fleming, " allow him access
to the prison mailroom during the lockdown but was informed
"I will not be allowed to access the mail room until the
lockdown is lifted." (Id., at 2).
Court entered an order on June 13, 2016, directing the
parties by July 15, 2016, "to file statements under oath
and supporting evidence indicating the dates of the
lockdown" of Petitioner's dormitory and
"whether such lockdown interfered with his ability to
file his Notice of Appeal." (Dkt. No. 36 at 2-3). The
Court further noted that the Petitioner's representations
in his Motion to Inform the Court had not been submitted
under oath. (Id. at 2).
submitted a response on July 15, 2016, acknowledging that
Petitioner's dormitory was on lockdown from September 9
to September 15, 2016 and explaining that during this period
prisoners' access to the law library and ability to send
and receive mail were modified but preserved. (Dkt. No. 38).
According to an affidavit submitted by Larry Cartledge,
Warden of Broad River Correctional Institution where the
Petitioner was incarcerated in September 2015, each dormitory
was permitted during the lockdown access to the law library
on an assigned day. Warden Cartledge indicated that there is
no record Petitioner visited the law library during his
dorm's assigned day. (Dkt. No. 38-1 ¶ 2). The sign
in sheets for the law library for the period of the lockdown
were also provided and corroborated Warden Cartledge's
statement. (Dkt. No. 38-2). Warden Cartledge further stated
that during lockdowns prisoners are not allowed to leave
their cells to visit the mailroom. Instead, staff "takes
mail to and from the dorm and the mailroom to have it sent
and delivered." The Warden confirmed "this is how
mail for [Petitioner's] dorm was handled from September
9, 2015 to September 15, 2015." (Dkt. No. 38-1 ¶
3). Petitioner filed no response to the Court's June 13,
upon the foregoing, the Court finds that Petitioner's
dormitory was on lockdown from September 9, 2015 until
September 15, 2015. The Court further finds that Petitioner,
despite the lockdown, had the ability to receive and send
mail during the period of the lockdown. He also had access to
the prison law library to research and prepare his Notice of
Appeal. Petitioner submitted his Notice of Appeal to the
prison mailroom on September 17, 2015. His notice of appeal
was due in the mailroom no later than September 14, 2015. The
Court finds no excusable neglect or good cause warranting an
extension of the 30 day appeal period. Cf Fed. R.
App. P. 4(a)(5).
IS SO ORDERED.
 Petitioner alleged in his Motion to
Inform the Court that the lockdown ran until September 16,