Opinion
2:01-CV-0169
January 9, 2004
FINDING OF FACT ON REMAND
The instant cause was remanded on December 3, 2003, to this Court for a determination of whether plaintiff delivered the notice of appeal in this cause to prison officials on or before Monday, September 15, 2003. Final judgment was entered August 15, 2003, plaintiff's pro se notice of appeal is dated September 12, 2003, and it is file-stamped as of September 18, 2003.
On January 5, 2004, plaintiff submitted his affidavit averring he deposited his notice of appeal in the instant cause into the prison mail system on September 12, 2003.
Pursuant to the Court's request, the Texas Attorney General, acting as Amicus Curiae, submitted a copy of a portion of the Clements and Skyview Unit mail logs for the relevant period on January 8, 2004.
The Clements Unit mail log shows a single item of outgoing mail to the United States District Court for the Northern District of Texas, Amarillo Division, during the relevant period. Such mail was processed by the unit mail room and logged on September 15, 2003, within the time frame for mailing the notice of appeal in this cause.
Based upon all of the above, the Magistrate Judge makes the following FINDING OF FACT for presentation to the United States District Judge:
Plaintiff deposited his Notice of Appeal into the internal mail system of the Clements Unit on or before September 15, 2003.
The United States District Clerk shall mail a copy of this Finding of Fact to plaintiff and to each attorney of record, including the Amicus Curiae, by certified mail, return receipt requested. Any party may object to the finding within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the finding to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the factual finding shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to factual findings if such are accepted and adopted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.