1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARTHUR LEE SMART, Case No.: 17-cv-1454-AJB-BGS Plaintiff, 12

ORDER RE FACTUAL

v. 13 DETERMINATION

E. ORTIZ, et al.,

14 Defendants. (Doc. No. 42) 15 16 On February 16, 2021, the Ninth Circuit Court of Appeal remanded Arthur Lee 17 Smart’s (“Smart”) appeal for the limited purpose of permitting this Court to make a factual 18 determination as to when Smart “first delivered a notice of appeal to prison officials for 19 mailing to the district court in compliance with the requirements of Federal Rule of 20 Appellate Procedure 4(a)(c) and Houston v. Lack, 487 U.S. 266, 270 (1988).” (Doc. No. 21 42 at 1.) The Ninth Circuit provided that this Court “may consider any further filings or 22 evidence it deems appropriate.” (Id.) Pursuant to the Ninth Circuit’s order, and for the 23 reasons set forth below, the Court makes the factual determination that Smart filed his 24 Notice of Appeal on December 9, 2019. (Doc. No. 39.) 25 I. REQUEST FOR JUDICIAL NOTICE 26 Under Federal Rule of Evidence 201(b), this Court may take judicial notice of facts 27 that are “capable of accurate and ready determination by resort to resources whose accuracy 28 cannot reasonably be questioned.” See Jespersen v. Harrah’s Operating Co., 444 F.3d 1 1104, 1110 (9th Cir. 2006) (en banc). Thus, a court may take judicial notice of “matters of 2 public record.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Judicially 3 noticeable facts include a court’s own records in other cases, and the records of other 4 courts. United States v. Wilson, 631 F.2d 118, 119–20 (9th Cir. 1980). 5 Defendants request the Court take judicial notice of the following filings: 6 • Smart’s Notice of Appeal in Smart v. Asuncion, C.D. Cal. Case No. 2:13-cv- 7 08311-GW-DTB, dated June 1, 2017; 8 • Smart’s Response to Order to Show Cause, in Smart v. Asuncion, Ninth Cir. 9 Case No. 17-55895, dated June 1, 2017; 10 • The Court’s Order in Smart v. Asuncion, Ninth Cir. Case No. 17-55895, 11 dated November 29, 2017; 12 • Defendants’ Motion to Dismiss for Lack of Jurisdiction in Smart v. Ortiz, et 13 al., Ninth Cir. Case No. 19-56447, dated December 17, 2019; and 14 • Smart’s Opposition to Defendants’ Motion to Dismiss for Lack of 15 Jurisdiction in Smart v. Ortiz, et al., Ninth Cir. Case No. 19-56447, dated 16 June 18, 2020. 17 Because all of the above documents are filings either on the Ninth Circuit or C.D. 18 Cal.’s dockets, these filings are appropriate subjects for judicial notice. See Mir v. Little 19 Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice 20 of court records). Thus, Defendants’ request for judicial notice is GRANTED in full. 21

II. BACKGROUND

22 On March 15, 2019, this Court granted Defendants’ motion to dismiss, and entered 23 judgment on March 19, 2019. (Doc. Nos. 37, 38.) On December 9, 2019, Smart submitted 24 a Notice of Appeal (“the December 2019 Notice of Appeal”). (Doc. No. 39.) On December 25 17, 2019, Defendants filed a motion to dismiss for lack of jurisdiction before the Ninth 26 Circuit, arguing Smart filed his Notice of Appeal more than eight months after the March 27 19, 2019 entry of judgment, instead of within thirty days. (Doc. No. 49-1 at 32–34.) Smart 28 1 opposed, claiming—for the first time—that he had submitted a Notice of Appeal on April 2 1, 2019 (“the April 2019 Notice of Appeal”). (Id. at 42–50.) On February 16, 2021, the 3 Ninth Circuit remanded Smart’s appeal for the limited purpose of permitting this Court to 4 make a factual determination as to when Smart “first delivered a notice of appeal to prison 5 officials for mailing to the district court in compliance with the requirements of Federal 6 Rule of Appellate Procedure 4(a)(c) and Houston v. Lack, 487 U.S. 266, 270 (1988).” (Doc. 7 No. 42 at 1.) 8 Then on February 18, 2021, the Court ordered a briefing schedule, directing Smart 9 to file briefing demonstrating the date he first delivered a Notice of Appeal to prison 10 officials for mailing to this Court. (Doc. No. 43.) The briefing was to clearly set forth the 11 steps Smart took to deposit his Notice of Appeal and provide the specific date the Notice 12 of Appeal was delivered to prison officials. (Id.) Smart was to support his briefing with 13 documentary evidence (i.e., mail logs, written requests, letters, etc.) showing the date on 14 which he first delivered his Notice of Appeal to prison officials. (Id.) Smart was to also 15 explain the specific timing and procedures taken to deliver what he contends was his 16 second Notice of Appeal, which was subsequently filed with this Court on December 9, 17 2019. (Id.) In the same order, the Court also provided Defendants an opportunity to file an 18 opposition brief. (Id. at 2.) This briefing was also to be supported by specific documentary 19 evidence (i.e., mail logs, written requests, letters, etc.). The Court explained in its order 20 that after receiving the appropriate briefing and evidence in support thereof, the Court 21 would review the materials and set a hearing, if necessary. (Id.) The Court cautioned that 22 if the parties failed to timely file the ordered briefing and evidence, the Court would make 23 a factual determination based on the current record before the Court, including the evidence 24 submitted to the Ninth Circuit. (Id.) 25 On March 24, 2021, Smart moved for an extension of time to submit his briefing, 26 which was granted by the Court. (Doc. Nos. 45–46.) The Court provided Smart until May 27 24, 2021 to file his briefing. (Doc. No. 46.) The Court again warned that if the parties failed 28 to timely file the ordered briefing and evidence, the Court would make a factual 1 determination based on the current record before the Court, including the evidence 2 submitted to the Ninth Circuit. Smart did not do so. (Id.) To this date, no briefing has been 3 filed by Smart. On June 7, 2021, Defendants timely filed their opposition brief. (Doc. No. 4 49.) This order follows. 5 III. DISCUSSION 6 Apart from self-serving assertions, Smart has made no showing, supported by 7 evidence in the record, that he timely filed a Notice of Appeal on or around April 1, 2019. 8 In response to Defendants’ motion to dismiss the Appeal for lack of jurisdiction, Smart 9 argued for the first time that he had timely filed a Notice of Appeal “around” April 1, 2019. 10 (Doc. No. 49-1 at 43.) Smart contends that he was placed in administrative segregation 11 during this time, assumed that the April 2019 Notice of Appeal would be properly sent to 12 the Court, but was ultimately unable to follow up on his April 2019 Notice of Appeal. (Id.) 13 He further alleges that it was not until he was transferred to a new detention facility that he 14 discovered the deficiency and thereafter immediately filed the second December 2019 15 Notice of Appeal. (Id.) The evidence in the record does not support Smart’s contention that 16 he timely filed an April 2019 Notice of Appeal. 17 First, there is no corroborating evidence tending to support Smart’s claim that he did 18 in fact file a Notice of Appeal “around” April 1, 2021. Missing from the record is any copy 19 of the purported April 2019 Notice of Appeal, or any post-marked envelope that the Notice 20 of Appeal was contained in. The Richard J. Donovan (“RJD”) Correctional Facility legal 21 mail log, which documents all incoming and outgoing mail for the entirety of Smart’s 22 incarceration at RJD, does not show that any mail was deposited for mailing to the Court 23 around April 2019. (Doc. No. 49-2 at 9–16.) Further, and more tellingly, the second 24 December 2019 Notice of Appeal filed by Smart does not acknowledge the untimeliness 25 of the filing, nor does it attempt to explain why the April 2019 Notice of Appeal was never 26 properly sent to the Court. (Doc. No. 39.) Instead, in the December 2019 Notice of Appeal, 27 Smart only summarily states that “[n]otice is hereby given that Plaintiff in the above- 28 entitled matter appeals to the United States Court of Appeals for the Ninth Circuit from the | judgment entered in this action on March 19, 2019.” Ud. at 1.) Smart’s failure to 2 ||acknowledge or to justify the delay provides a strong inference that Smart did not timely 3 || file an April 2019 Notice of Appeal. 4 Second, Smart does not present any evidence showing that internal prison mailing 5 procedures were not appropriately followed by prison officials. Moreover, there is no 6 evidence or documents demonstrating that Smart had in fact inquired about the status of 7 first April 2019 Notice of Appeal. Defendants explain that “inmates are allowed to send 8 receive legal mail while they are housed in administrative segregation.” (Doc. No. 49 9 7.) But there is no documentation from RJD, and nothing on the Court’s docket, 10 |/indicating Smart was reasonably diligent in following up on the status of his Appeal. In 11 || fact, there are no filings by Smart, or any other party, between March 19, 2019, the date of 12 || the Clerk’s judgment, and December 9, 2019, the date of Smart’s untimely appeal. 13 CONCLUSION 14 As Smart has failed to put forth any evidence demonstrating that he in fact timely 15 ||submitted a Notice of Appeal, or demonstrated due diligence in inquiring about its status, 16 Court need not accept Smart’s post-hoc explanation that he filed an April 2019 Notice 17 Appeal. Despite granting Smart an extension of time to file his briefing, Smart has 18 ||missed the deadline to provide any evidence supporting his claim. Because the record 19 || contains no evidence that Smart filed an April 2019 Notice of Appeal, the Court finds that 20 || Smart filed his Notice of Appeal on December 9, 2019—the only Notice of Appeal in the 21 || record. 22 23 IT IS SO ORDERED. 24 || Dated: June 25, 2021 © ¢ 25 Hon. Anthony J.Battaglia 26 United States District Judge 27 28