2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-13-2012

Ronald Long v. Atlantic City Police Departmen

Precedential or Non-Precedential: Precedential

Docket No. 06-4732

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 06-4732

_____________

RONALD LONG,

 Appellant

 v.

ATLANTIC CITY POLICE DEPARTMENT; 

JAMES SCOPPA; ERNEST JUBILEE; 

NEW JERSEY STATE POLICE;

NANCY J. TAYLOR; LAURA A. BARBATO,

_______________

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. No. 06-cv-00785)

District Judge: Hon. Noel L. Hillman

_______________

Argued 

November 9, 2011

Before: RENDELL, JORDAN, and GREENAWAY, JR., 

Circuit Judges.
2

(File: February 13, 2012)

_______________

Alexander Bilus [ARGUED]

Carolyn H. Feeney

Dechert

2929 Arch Street – 18th Fl.

Philadelphia, PA 19104

 Counsel for Appellant

Matthew H. Duncan [ARGUED]

Fine, Kaplan & Black

1835 Market Street - #2800

Philadelphia, PA 19103

 Amicus Curiae Counsel

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Ronald Long, a New Jersey state prisoner who 

proceeded pro se before the United States District Court for 

the District of New Jersey, appeals an order of that Court

denying his untimely motion for reconsideration of a prior 

order dismissing his complaint. Long relies on Federal Rule 

of Appellate Procedure 4(a)(4)(A), which provides that, if a 

timely motion for reconsideration under Federal Rule of Civil 

Procedure 59(e) is filed, the time to appeal begins to run from 

the district court’s disposition of the motion. He reasons that, 

here, we can review the underlying dismissal order because

his motion for reconsideration should be deemed timely since
3

mail delay within the prison caused him to file the motion 

late. 

For the reasons set forth below, we agree with Long 

that, in cases where the record supports a finding of delay in 

prison mail delivery, such delay may make an untimely Rule 

59(e) motion timely so as to permit the exercise of appellate 

jurisdiction over an order we would otherwise lack 

jurisdiction to review. When the record is insufficient to 

support a prisoner’s allegations of prison delay, we may 

remand to the District Court for appropriate fact-finding. 

Ultimately, however, we rule that the issue of delay need not 

be resolved on remand because we have jurisdiction over the

District Court’s denial of reconsideration which, in this case, 

proves sufficient.

I. Factual Background and Procedural History

On February 21, 2006, Long filed an in forma pauperis

complaint under 42 U.S.C. § 1983 against the Atlantic City 

Police Department, the New Jersey State Police, two police 

officers, and two forensic chemists. He alleged that the 

defendants conspired to obtain a capital murder conviction 

against him by knowingly presenting false evidence at his 

trial, and deliberately preventing him from obtaining DNA 

testing that would prove his innocence.1

 1 In his own words, Long claimed that “the Defendants 

violated [his] constitutional and civil rights ... by committing 

perjury and/or fabricating evidence and engaging in 

conspiratorial acts to hide evidence to prevent DNA testing, 

causing ... [him] to be falsely convicted of capital murder.” 

(Amicus App. at 133; see also id. at 137 (alleging a 

 The complaint 
4

sought monetary damages to compensate him for the

consequences of the alleged conspiracy.

On August 16, 2006, after screening the complaint 

pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A,

2 the District 

Court issued a memorandum concluding that Long’s claims 

were barred by Heck v. Humphrey, 512 U.S. 477 (1994), 

unless and until Long could demonstrate that his state court 

conviction was invalid. Accordingly, the District Court 

dismissed the complaint sua sponte, even though the 

defendants had not yet been served. The Court issued an 

accompanying order closing the case that same day. On 

August 21, 2006, the memorandum and the order were 

entered on the District Court’s docket. Thus, under the rules 

then in effect,

3

 

conspiracy to “hide the evidence to prevent it from being 

DNA tested and to prevent ... [Long] from being able to 

establish his innocence”).) Citations to “Amicus App.” are to 

the Appendix filed by court-appointed Amicus, Fine, Kaplan 

& Black, R.P.C. (“Fine Kaplan”).

Long had until September 4, 2006 to file a 

2 Collectively, those provisions provide that district 

courts should screen civil complaints in which a prisoner 

seeks redress from a governmental entity or officer, and 

dismiss the case if the action is (1) frivolous or malicious; (2) 

fails to state a claim on which relief may be granted; or (3) 

seeks monetary relief against a defendant who is immune 

from such relief. 

3 Currently, a “motion to alter or amend a judgment 

[under Rule 59(e)] must be filed no later than 28 days after 

the entry of the judgment,” Fed. R. Civ. P. 59(e), and “all 

deadlines stated in days (no matter the length) are computed 
5

motion for reconsideration under Rule 59(e). See Fed. R. 

Civ. P. 59(e) (stating the deadline by reference to the “entry 

of the judgment”). 

He did not do so. Instead, on September 25, 2006, 

Long filed4 a motion for reconsideration along with a letter 

brief explaining that he had not received the District Court’s 

filings until September 22, 2006 – after the 30-day period to 

file an appeal under Appellate Rule 4(a)(1) had lapsed.5

 

in the same way,” Fed. R. Civ. P. 6 (Advisory Committee’s 

Notes on 2009 Amendments). However, at the time Long’s 

case was before the District Court, a 10-day deadline applied,

Fed. R. Civ. P. 59(e) (2006), and time periods involving less 

than 11 days were calculated by excluding intermediate 

Saturdays, Sundays, and legal holidays, Fed. R. Civ. P. 6(a) 

(2006). 

 The

motion for reconsideration claimed that the delay was caused, 

in part, by Long’s transfer from one state prison to another. 

Specifically, Long claimed that although he had informed the 

4 Long signed his motion on September 25, 2006, and 

it was entered on the District Court’s docket on October 2, 

2006. Heeding the Supreme Court’s instruction in Houston v. 

Lack, 487 U.S. 266 (1988), we presume, for purposes of our 

discussion, that Long filed his motion on the date he executed 

it. See id. at 276 (“[T]he notice of appeal was filed at the 

time petitioner delivered it to the prison authorities for 

forwarding to the court clerk.”).

5 While we will make references to the Federal Rules 

of Civil Procedure simply as “Rules,” we will use the shorthand “Appellate Rule” when referring to the Federal Rules of 

Appellate Procedure.
6

District Court of his transfer to a new prison, he received the 

District Court’s memorandum and order only after they were

sent to his old prison and then forwarded to him. He also 

attributed his delayed receipt of those documents to the fact 

that officials at his new prison “open Legal Mail outside of 

the inmate’s presence.” (Amicus App. at 149.) 

On October 4, 2006, the District Court issued a 

memorandum treating Long’s motion for reconsideration as 

timely because he had “executed his motion on September 25, 

2006, within three days of receipt” (Amicus App. at 155), but 

rejecting Long’s motion for reconsideration on the merits,

based on Heck. The District Court’s memorandum, as well as 

its accompanying order, were entered on the docket on 

October 6, 2006. On October 31, 2006, Long signed a notice 

of appeal that was therefore timely as measured from the 

denial of reconsideration, see Fed. R. App. P. 4(a)(1)(A)

(providing that a notice of appeal must be filed within “30 

days after entry of the judgment or order appealed from” in a 

case in which the United States or its agent is not a party), but 

untimely as measured from the August 16, 2006 order 

dismissing the case. 

We consolidated Long’s appeal with other cases 

presenting similar issues implicating Appellate Rule 4(a) for 

the purpose of determining whether, and to what extent, we 

have appellate jurisdiction to consider it.

6

 6 Those other cases are Baker v. United States, Nos. 

08-2288 and 08-2365, Barner v. Williamson, No. 08-1025, 

and Cycle Chem, Inc. v. Jackson, No. 09-1320. They are the 

subject of separate dispositions.
7

II. Discussion7

The parties agree that we have jurisdiction to review

the District Court’s order denying Long’s motion for

reconsideration.

8

 Long contends that we also have 

jurisdiction to review the underlying dismissal order because

his motion for reconsideration should, under Appellate Rule 

4(a)(4)(A), toll his time to file an appeal. That Appellate 

Rule provides, in pertinent part, that certain “timely file[d]” 

post-judgment motions, including motions to reconsider 

under Rule 59(e), serve to postpone “the time to file an appeal 

... [until] the entry of the order disposing of the last ... 

remaining motion.” Fed. R. App. P. 4(a)(4)(A). Although 

Long acknowledges that his motion for reconsideration was 

late, he asks us to treat it as timely, due to the mail handling 

in prison that allegedly delayed his filing. 

Our Amicus, Fine Kaplan, takes a contrary view 

regarding Long’s attempt to appeal the underlying order of 

dismissal. According to Amicus’s view of the law, when

 7 The District Court had jurisdiction under 28 U.S.C. 

§§ 1331 and 1343(a)(3). We have appellate jurisdiction, if at 

all, pursuant to 28 U.S.C. § 1291. 

8 Because none of the defendants named in Long’s 

complaint were served before his complaint was dismissed, 

those parties were not present to take a position on the 

jurisdictional questions presented in this appeal. To facilitate 

our inquiry, we appointed Fine Kaplan to file an amicus brief 

on behalf of the Court, and Dechert LLP to file a brief on 

behalf of Long. The Court is grateful for the superb 

assistance provided by those firms.
8

Long did not receive a copy of the District Court’s dismissal 

order until after the 30-day time limit for filing a notice of 

appeal had lapsed, his only recourse was to file a motion

under Appellate Rule 4(a)(5) for an extension of time to 

appeal,9 or a motion under Appellate Rule 4(a)(6) to reopen 

the time to file an appeal.10 Because Long filed neither of 

those motions and instead filed a motion for reconsideration

under Rule 59(e), Amicus argues that we lack jurisdiction to 

review the District Court’s underlying dismissal order.

 9 Appellate Rule 4(a)(5) provides, in relevant part, that 

the district court “may extend the time to file a notice of 

appeal if” a party seeks an extension (1) no later than 30 days 

after the otherwise applicable appellate deadline; and (2) 

“shows excusable neglect or good cause.” Fed. R. App. P. 

4(a)(5)(A)(i)-(ii).

10 Appellate Rule 4(a)(6) provides, in relevant part, 

that the district court “may reopen the time to file an appeal

for a period of 14 days” if (1) the court determines the 

movant did not receive notice of the entry of the appealable 

order within 21 days of its entry; (2) the motion is filed in the 

earlier period of 180 days of the appealable order’s entry or 

14 days after the moving party receives notice; and (3) the 

court determines that no party would be prejudiced by 

reopening the time to appeal. Fed. R. App. P. 4(a)(6)(A)-(C).
9

A. Our Jurisdiction to Review the District Court’s 

Initial Dismissal Order

We therefore begin our analysis by evaluating whether 

we have jurisdiction to review the District Court’s order 

dismissing Long’s complaint. That inquiry leads us to 

examine two distinct questions. 

First, we address whether allegations of prison delay 

can excuse the untimeliness of a motion to reconsider under

Rule 59(e) so as to permit us to exercise jurisdiction under 

Appellate Rule 4(a)(4)(A) to review the underlying dismissal. 

If an untimely Rule 59(e) motion can be considered “timely” 

as a result of prison delay, Appellate Rule 4(a)(4)(A) permits 

“the time to file an appeal [to] run[] ... from the entry of the 

order disposing of ... [that] motion.” Fed. R. App. P. 

4(a)(4)(A). Second, assuming Appellate Rule 4(a)(4)(A) does 

provide an avenue for us to reach the underlying dismissal 

order, we consider whether there is a temporal limitation on 

the operation of that rule that would prevent its application in 

circumstances where a Rule 59(e) motion is filed after the 

otherwise applicable time period for filing a notice of appeal,

see Fed. R. App. P. 4(a)(1), has lapsed.

We address those questions in turn.

1. Whether Prison Delay Can Render an 

Untimely Rule 59(e) Motion Timely

The idea that prison delay may serve to toll the time to 

appeal stems from our holding in United States v. Grana, 864 

F.2d 312 (3d Cir. 1989), abrogated on other grounds by

Virgin Islands v. Martinez, 620 F.3d 321 (3d Cir. 2010).
10

There, we held that delay by prison authorities in delivering 

mail to a prisoner should be excluded in calculating the time 

for filing a notice of appeal in a criminal case. See id. at 313. 

Although the prisoner in Grana filed a pro se appeal “fifteen 

days out of time” under Appellate Rule 4(b), Grana alleged

that the prison had “negligently handled his incoming mail, 

and as a result he did not receive the district court’s final 

order until May 5, 1988, after the expiration of the appeal 

period.” Id. at 314. He consequently argued that, for 

purposes of jurisdiction, his appeal should be treated as 

having been filed on time. We agreed.

Pointing to the Supreme Court’s adoption of the prison 

mailbox rule,11

 11 As mentioned supra note 

we observed that “prison delay beyond the 

litigant’s control cannot fairly be used in computing time for 

appeal” and we “perceive[d] no difference between delay in 

transmitting the prisoner’s papers to the court and 

transmitting the court’s final judgment to him so that he may 

prepare his appeal.” Id. at 316. We therefore held that, “in 

computing the timeliness of pro se prisoners’ appeals, any 

prison delay in transmitting to the prisoner notice of the 

district court’s final order or judgment shall be excluded from 

the computation of an appellant’s time for taking an appeal.” 

Id. We remanded the case to the district court to determine 

whether the appeal was timely under that standard because 

“the record d[id] not show the date the prison received notice 

of the district court’s final order or conclusively establish the 

4, the Supreme Court has 

held that a prisoner’s notice of appeal is deemed filed upon 

delivery to the prison mail system. See Houston, 487 U.S. at 

276. A variation of that rule is currently embodied in 

Appellate Rule 4(c).
11

date the prison transmitted the notice to [the] appellant.” Id. 

We instructed that, on remand, the prison would have “the 

burden ... of establishing the relevant dates” because the 

prison was best equipped to provide that information. Id.

In United States v. Fiorelli, 337 F.3d 282 (3d Cir. 

2003), we extended the Grana rule to permit an untimely 

motion for reconsideration to be made timely so that it would, 

in turn, toll the time to appeal under Appellate Rule 

4(a)(4)(A). Fiorelli filed a civil case under 28 U.S.C.

§ 2255,

12

 12 After first observing that the time to appeal an order 

entered on a § 2255 motion is governed by Appellate Rule 

4(a), we began our tolling discussion in Fiorelli by evaluating 

“the applicability of the Federal Rules of Civil Procedure to 

[Fiorelli’s] § 2255 motion.” Fiorelli, 337 F.3d at 285. We 

stated that we were considering “the requirement under Civil 

Rule 58 that judgments be set forth on a separate document 

and entered in the docket of the district clerk, and the time 

limitations accompanying motions for reconsideration under 

Civil Rules 59 and 60,” id. at 286; we concluded that those 

civil rules applied in the § 2255 context, see id. at 286-87; 

and we proceeded to evaluate whether Fiorelli’s untimely 

motion under Rule 59(e) could permit his appeal to be 

properly filed under Appellate Rule 4(a)(4)(A), see id. at 287-

88.

mounting a collateral attack on his criminal 

conviction. Id. at 284. His claim for relief was denied by the 

district court on April 9, 2001. Id. at 285. On April 30, 2001, 

outside of the then-applicable 10-day period for filing a 

motion for reconsideration but within the 60-day period for

filing a notice of appeal, see Fed. R. App. P. 4(a)(1)(B) 

(providing that a notice of appeal must be filed within “60 
12

days after entry of the judgment or order appealed from” in a 

case in which the United States or its agent is a party), he

filed what the Fiorelli court ultimately construed as a Rule 

59(e) motion for reconsideration, Fiorelli, 337 F.3d at 285, 

288. The district court denied that motion on May 18, 2001, 

and Fiorelli filed a notice of appeal on July 17, 2001. Id. 

Thus, as in this case, Fiorelli’s notice of appeal was 

timely as measured from the denial of the untimely motion 

for reconsideration, but was otherwise untimely. Fiorelli 

alleged, however, that he received the district court’s original 

order “during the normal mail distribution at the federal 

prison where he [was] confined,” 13 days after the district 

court issued the order denying his § 2255 claim. Id. at 288 

(internal quotation marks omitted). The question, therefore, 

was whether Fiorelli’s delayed receipt of the original order, 

which delay was allegedly caused by prison officials, should 

result in his untimely motion for reconsideration being

viewed as timely, thereby rendering his appeal of the original

order denying his § 2255 claim timely under the provisions of

Appellate Rule 4(a)(4)(A). See id. (“Fiorelli’s appeal may be 

properly filed if his motion for reconsideration is deemed 

timely, thus invoking the tolling provision of Appellate Rule 

4(a)(4)(A).”). 

We answered that there was “no reason why Grana’s 

exclusion of prison delays from the time limits of 

jurisdictionally sensitive filings should not apply to motions 

for reconsideration,” inasmuch as such deadlines are “critical

to appellate jurisdiction.” Id. at 289. It followed that “a 

prison’s actual delay or interference in the delivery of a final 

order of the district court is excluded from the calculation of 

the timeliness of motions for reconsideration ... filed by pro 
13

se inmates.” Id. at 289-90. While we emphasized that the 

tolling rule requires a prisoner to allege that actual delay or

interference in mail delivery was caused by the prison, we

were satisfied that Fiorelli’s “statement that he received the 

District Court’s order during the normal mail distribution” 

could refer to such interference and remanded for the district 

court to determine whether the tolling rule could be properly 

invoked. Id. at 290 (internal quotation marks omitted). As 

we did in Grana, we instructed the district court to undertake 

factual findings as to “the relevant dates of the prison’s 

receipt and delivery of the District Court’s order” so that, on 

review, we could make a “determination of our jurisdiction.” 

Id.

Notwithstanding Fiorelli’s extension of the Grana

tolling principle to a case governed by the Federal Rules of 

Civil Procedure and Appellate Rule 4(a), we seemed to reject

that approach in Poole v. Family Court of New Castle County, 

368 F.3d 263 (3d Cir. 2004). In Poole, a pro se prisoner filed 

an untimely notice of appeal, “apparently because of delay in 

receiving notice of the entry of the order dismissing his 

claims.” Id. at 264. Citing Grana, Poole argued that “his 

[otherwise untimely] notice of appeal should be regarded as 

having been filed on time because there was a delay in his 

receipt of notice from the district court clerk’s office 

regarding the entry of the order of dismissal.” Id. That delay 

was allegedly the result of “Poole’s transfer from one 

correctional institution to another shortly before the order of 

dismissal was entered.”13

 13 More specifically, the delay in Poole occurred 

because the clerk’s office mailed the notice to a prison where, 

by the time the letter arrived, Poole was no longer 

 Id. at 264-65. Without mentioning 
14

Fiorelli, we concluded that the Grana tolling rule did not 

apply, distinguishing Poole’s appeal because it – unlike the 

appeal in Grana – occurred in a civil case, id. at 265-66, and

because “the delay was not primarily due to Poole’s status as 

an inmate but to the simple fact that he was moved,” id. at 

266 n.4. Poole’s proper remedy, we explained, would have 

been to file a motion to reopen in accordance with Appellate 

Rule 4(a)(6). See id. at 266-67.

While Poole is plainly in tension with Fiorelli, we

view the holding in Poole as turning not on its distinction 

between criminal and civil cases but rather on the nature of 

the alleged delay. In Fiorelli, the delay in the prisoner’s 

receipt of the order was allegedly the result of the prison’s 

handling of the mail. It was, in other words a classic prison 

delay case, after the manner of Grana. In Poole, by contrast, 

the delay allegedly was caused by the clerk’s office and did 

not stem from actions or omissions by prison officials. Cf.

Fiorelli, 337 F.3d at 289 (“Grana makes clear that only 

 

incarcerated. Poole, 368 F.3d at 265. Poole had sent two 

letters to the district court concerning his change in address. 

The first, received just before the order was mailed to him, 

stated that Poole would be “returning to P.A. 3-24-02 is my 

Max out date and then my detainer come up.” Id. It did not 

contain any Pennsylvania address or request a change in 

address. The second letter, received just after the order was 

sent, contained Poole’s new address but “did not state 

expressly that Poole’s address had changed and did not 

request that the clerk change the address listed on the docket.” 

Id. As a result, it did not alert the clerk’s office that the order 

“sent a few days earlier had been mailed to a facility where 

Poole was no longer housed.” Id.
15

delays caused by the prison warrant tolling of the filing 

deadlines, and ‘[t]o the extent that the delay represents slow 

mail, there is nothing that this Court can do to preserve an 

appellant’s right to appellate review.’” (emphasis added) 

(quoting Grana, 864 F.2d at 316)). 

We therefore read Fiorelli to articulate a stillcontrolling rule that applies when delay is allegedly caused by

actions or omissions of prison officials in the delivery of mail 

to a prisoner litigating pro se.14 We reaffirm that we can view

a Rule 59(e) motion as timely in such situations, allowing us 

to exercise jurisdiction pursuant to Appellate Rule 4(a)(4)(A)

over an appeal of the underlying case-dispositive order, if the 

delay in filing the Rule 59(e) motion is caused by “a prison’s 

actual delay or interference in the delivery of a final order of 

the district court.”15

 14 We note that in Fiorelli the pro se prisoner 

attempted to toll the deadline for filing a motion for 

reconsideration under Rule 59(e) so as to permit an appeal in 

accordance with Appellate Rule 4(a)(4)(A). In Poole, by 

contrast, the pro se prisoner attempted to toll the deadline for 

filing a notice of appeal under Appellate Rule 4(a)(1). Given 

recent Supreme Court precedent, see Bowles v. Russell, 551 

U.S. 205 (2007), that distinction may be a significant one. 

However, as discussed infra in Part II.A.2, the question of 

whether prison delay tolling principles are applicable to 

deadlines that are jurisdictional in character, such as 

Appellate Rule 4(a)(1), is not implicated in this case because 

Long seeks only to have us deem his Rule 59(e) motion 

timely.

 Id. at 289. Thus, when a pro se prisoner 

15 That is not to say, of course, that a pro se prisoner 

who experiences mail delay does not have other avenues that 
16

makes allegations in connection with a motion for 

reconsideration that could reasonably be construed as a nonfrivolous assertion that the prison delayed delivering the court 

order that he is asking be reconsidered, the district court 

should engage in the fact-finding necessary to a jurisdictional 

analysis under Appellate Rule 4(a)(4)(A). See id. (“The 

timeliness of a motion under ... Civil Rule 59 ... is critical to 

appellate jurisdiction.”). In some instances, such as when the 

prisoner’s allegations are uncontested, the district court may 

of course choose to credit what the prisoner says. There 

ought, however, also be some effort to confirm that the order 

was sent to the prisoner’s correct prison address and an 

explicit determination that the prisoner’s allegations as to the 

date of receipt are accepted as being true.

16

 

can serve to preserve his or her appellate rights. Appellate 

Rules 4(a)(5) and 4(a)(6), see supra notes 

We then, in turn,

9-10, both provide 

means to do so, and are undoubtedly a more direct route to 

securing access to an appellate courtroom. Cf. Poole, 368 

F.3d at 266-67 (discussing requirements for relief under

Appellate Rules 4(a)(5) and 4(a)(6)). Indeed, when 

confronted with his delayed receipt of the District Court’s 

memorandum and order in this case, Long would have been 

far better served by filing one of those motions rather than the 

motion for reconsideration he instead filed, as our ability to 

review the District Court’s initial order of dismissal turns on 

whether his allegations of prison delay can be credited. 

16 Because the timeliness of a motion for 

reconsideration implicates our power to hear an appeal under 

Appellate Rule 4(a)(4)(A), a bare statement that the prisoner’s 

allegations are assumed to be true will not do. Some kind of 

fact-finding is essential. We note, moreover, that making 

assumptions about timeliness could be viewed as an extension 
17

would accept any such fact-finding as long as it was not 

clearly erroneous. Even when the district court determines it 

needs further information to decide whether the prison 

actually delayed or interfered with a prisoner’s receipt of an 

order, we are not suggesting that a hearing will be necessary;

we are instead directing only that, in such a case, the prison 

has the burden of providing evidence of the date it received 

the district court’s final order and the date on which it was 

transmitted to the appellant. See Grana, 864 F.2d at 316. As 

a practical matter, this should add no burden to prison recordkeeping because prison officials have, at least since Grana, 

been on notice that they should maintain “clear and accurate 

mail logs.” Id.

In the present case, Long certified17

 

of time to file a motion for reconsideration. That would be 

inappropriate, given the explicit instruction in Rule 6 that 

time extensions for certain motions, including motions 

pursuant to Rule 59(e), are forbidden. See Fed. R. Civ. P. 

6(b)(2) (“A court must not extend the time to act under Rules 

50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”). District 

courts should of course heed that direction and hew strictly to 

the stated time limits, unless there is prison delay that serves 

as a basis for treating an untimely motion as timely.

that his delayed 

receipt of the District Court’s memorandum and order was a 

result of two things: first, that those documents were

incorrectly mailed to his old prison, and second, that his new 

17 Long supported his allegations with a certification 

that stated his view of the facts and contained an averment 

that “a willfully false statement [would] subject [him] to 

punishment.” (Amicus App. at 150.) 
18

prison opened legal mail before delivering it to prisoners. 

Thus, although some portion of the delay was allegedly

caused by the District Court’s clerk’s office and any such 

time lost would not count towards making Long’s untimely

motion for reconsideration timely, some of the delay was also 

allegedly a consequence of prison delay, as Long complains 

of his new prison’s practice of opening legal mail before 

sending it to inmates. We cannot sort out these alleged 

sources of delay, however, because the District Court made 

no express finding as to whether the prison actually delayed 

or interfered with Long’s receipt of its order, and the record

before us does not indicate when the prison where Long 

currently resides received the District Court’s memorandum 

and order or when it transmitted those documents to Long.

We would therefore ordinarily remand to the District Court to 

find those facts.

2. Whether There is a Temporal Limitation 

on Fiorelli’s Tolling Rule

Our Amicus, however, indicates that remand would be 

fruitless here since there is a 30-day outer time limit (or 60-

day, when the United States or its agent is a party) on 

Fiorelli’s tolling rule because Appellate Rule 4(a)(1) imposes 

that jurisdictional time limit on the filing of a notice of 

appeal. Amicus’s argument is based on the Supreme Court’s 

decision in Bowles v. Russell, 551 U.S. 205 (2007). In that 

case, the Supreme Court held that timing requirements for 

filing notices of appeal, as set forth in 28 U.S.C. § 2107 and 

from which Appellate Rule 4(a)(1) is derived, are mandatory 

and jurisdictional, and, as such, a court has no power to create 

equitable exceptions to them. 551 U.S. at 214. As we discuss 

more fully in the companion case filed today, Baker v. United 
19

States, Nos. 08-2288 and 08-2365, there is no doubt after 

Bowles that the rules listed in 28 U.S.C. § 2107, one of which 

is restated in Appellate Rule 4(a)(1), are jurisdictional.18

 18 Though the subject of discussion at oral argument, 

we need not consider whether Appellate Rule 4(a)(4)(A) is 

likewise jurisdictional, or instead, a claims-processing rule. 

Although we similarly did not resolve that issue in Lizardo v. 

United States, 619 F.3d 273 (3d Cir. 2010), that decision 

implies that Appellate Rule 4(a)(4)(A) is a claims-processing 

rule because it – much like Rule 59(e) (and unlike Appellate 

Rule 4(a)(1)) – does not appear in a statute and was 

promulgated under the Rules Enabling Act. See Lizardo, 619 

F.3d at 277 (“Rule 59(e) is akin to Rule 4004 of the Federal 

Rules of Bankruptcy Procedure. Both rules were 

promulgated by the Supreme Court under the Rules Enabling 

Act.”). We do note, however, that, a conclusion that

Appellate Rule 4(a)(4)(A) is a claims-processing rule would 

not prevent us from dismissing, sua sponte, untimely appeals 

filed under Appellate Rule 4(a)(4)(A). See United States v. 

Mitchell, 518 F.3d 740, 750 (10th Cir. 2008) (recognizing 

that, where “a rule implicates judicial interests beyond those 

of the parties, it may be appropriate for a court to invoke the 

rule sua sponte in order to protect those interests,” and 

holding that the court had the power to enforce claimsprocessing rules by way of a sua sponte dismissal). In fact, 

given the administrative and institutional interests in 

enforcing appellate deadlines notwithstanding the parties’ 

actions before us, a persuasive argument can be made that sua 

sponte dismissal should be the rule rather than the exception. 

See id. at 754 (Lucero, J., dissenting) (“I would dismiss 

almost all untimely appeals, regardless of whether an appellee 

forfeits its objection by not properly raising it.”). 

 
20

Because of that, and because Fiorelli tolling can permit a 

litigant entitled to its application to file a notice of appeal 

from the original order after Appellate Rule 4(a)(1)’s 

jurisdictional deadline has lapsed, our Amicus has taken the 

position that Fiorelli cannot allow an untimely motion for 

reconsideration to be deemed timely for purposes of 

Appellate Rule 4(a)(4)(A) if that motion is filed after the 

expiration of the 30- or 60-day jurisdictional period for filing 

a notice of appeal under Appellate Rule 4(a)(1). Were we to 

hold otherwise, Amicus warns, we would be allowing, and 

perhaps encouraging, an end-run around Appellate Rule 

4(a)(1)’s jurisdictional deadline. 

But Amicus’s argument is misplaced. Properly 

viewed, the Fiorelli tolling rule does not extend any of the 

deadlines set forth in 28 U.S.C. § 2107 and Appellate Rule 

4(a)(1). Rather, it concerns the “timeliness” of a motion for 

reconsideration, which then determines, under Appellate Rule 

4(a)(4)(A), the orders over which we can exercise 

jurisdiction. When facts are found that demonstrate prison 

delay, all that Fiorelli does is allow us to, by excluding the 

time lost due to prison delay, deem as timely what would 

otherwise be an untimely motion for reconsideration. After 

subtracting such time, the prisoner must still file his appeal 

within 30 (or 60) days of the district court’s disposition of his 

motion. If he does so, he will be considered to have properly 

filed his appeal in accordance with Appellate Rule 4(a)(4)(A). 

Fiorelli’s tolling rule is nothing more than an application of 

the principle from Houston v. Lack, 487 U.S. 266 (1988) that 

time lost due to prison delay “cannot fairly be used in 

computing time for appeal.” Grana, 864 F.2d at 316.
21

It is quite possible, then, that, after fact-finding by the 

District Court, we could conclude that we do have jurisdiction 

to consider the District Court’s underlying order that 

dismissed Long’s complaint. Our usual practice would 

therefore be to remand for the District Court to find the facts 

that “are essential for a determination of our jurisdiction” 

over that order. Fiorelli, 337 F.3d at 290. That step is 

unnecessary in this case, however, since we agree with the 

parties that we have jurisdiction to consider Long’s appeal to 

the extent he challenges the District Court’s denial of his 

motion for reconsideration,19 which proves sufficient in this 

case. 

B. The District Court’s Denial of Reconsideration

We acknowledge that our review of the order denying 

reconsideration is subject to a more deferential and 

circumscribed standard of review than would apply if we also 

 19 Earlier precedent considered any “sub[s]tantive 

action a court takes on an untimely motion ... a nullity.” 

Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 861 

(3d Cir. 1970). More recent authority, however, establishes 

that we “can no longer treat Rule 59(e) as a jurisdictional 

rule, nor view ... [an] untimely motion for reconsideration as 

a nullity.” Lizardo, 619 F.3d at 277. It logically follows that 

a district court’s action on such a motion can, likewise, not be 

deemed a nullity, and we therefore have jurisdiction to review 

a timely appealed order disposing of an untimely motion for 

reconsideration. However, because any such order is 

appealable in its own right, the filing fee waiver provided for 

in Appellate Rule 4(a)(4)(B)(iii) does not apply to a notice of 

appeal challenging the disposition of the untimely motion.
22

were to have jurisdiction to consider the underlying dismissal 

order, as we review only whether the District Court’s denial 

of reconsideration constitutes an abuse of discretion.

20

 20 If we had jurisdiction to consider the underlying 

order, we would exercise plenary review to determine 

whether the District Court properly dismissed Long’s 

complaint. See Tourscher v. McCullough, 184 F.3d 236, 240 

(3d Cir. 1999). Some cases intimate that our review of an 

order denying reconsideration is, likewise, plenary to the 

extent that “the denial of reconsideration is predicated on an 

issue of law.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. 

Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); see N. River Ins. 

Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir. 

1995) (“Where a district court’s denial of a motion to 

reconsider is based upon the interpretation of legal precepts, 

however, our review of the lower court’s decision is 

plenary.”). That idea, however, stems from the understanding 

that “an appeal from a denial of a Motion for Reconsideration 

brings up the underlying judgment for review,” McAlister v. 

Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992) (citing 

Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348-49 (3d 

Cir. 1986)), which is only true to the extent that Appellate 

Rule 4(a)(4)(A) allows “the time to file an appeal [to] run[] 

for all parties from the entry of the order disposing of” a 

timely filed Rule 59 motion, Fed. R. App. P. 4(a)(4)(A)(v); 

see Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 

F.2d 77, 78 (3d Cir. 1982) (“A timely appeal from an order 

denying a Rule 59 motion to alter or amend brings up the 

underlying judgment for review.” (citing Fed. R. App. P. 

4(a)(4))). Thus, when there is no timely filed post-judgment 

motion to trigger Appellate Rule 4(a)(4)(A)’s tolling 

provisions and when an appeal is untimely as measured from 

 See, 
23

e.g., Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) 

(“[T]he appropriate standard of review [of an appeal from the 

district court’s denial of a Rule 59 motion] is for an abuse of 

discretion.”). Consequently, in the ordinary case, we would 

not assume that reviewing a denial of reconsideration would 

be functionally the same as reviewing the underlying order, 

even if the former covered all of the same issues as the latter. 

However, though we are bound by an abuse of 

discretion standard in reviewing the denial of reconsideration, 

it would indeed be an abuse of discretion in this case if the 

District Court were wrong in saying that Heck required 

dismissal of Long’s complaint. See Planned Parenthood of 

Cent. N.J. v. Att’y Gen. of the State of N.J., 297 F.3d 253, 265 

(3d Cir. 2002) (“[A] court abuses its discretion when its 

ruling is founded on an error of law or a misapplication of 

law to the facts.” (internal citation omitted)). Thus, even 

though we cannot conclude on this record whether we have 

jurisdiction to exercise plenary review to consider whether 

the District Court erred in dismissing Long’s complaint, the 

legal question presented is essentially the same under either 

plenary or abuse-of-discretion review: whether the District 

Court correctly found Long’s complaint to be barred by Heck.

In Heck, the Supreme Court held that a § 1983 suit 

should be dismissed when a “judgment in favor of the 

plaintiff would necessarily imply the invalidity of his 

conviction or sentence ... unless the plaintiff can demonstrate 

that the conviction or sentence has already been invalidated.” 

512 U.S. at 487. Here, Long’s complaint seeks the sort of 

 

the underlying judgment, we cannot exercise plenary review 

over an order disposing of a motion for reconsideration.
24

relief that is plainly barred by Heck because he seeks § 1983

relief on the ground that the defendants conspired to obtain a 

capital murder conviction against him, but he has not 

demonstrated that his conviction has already been invalidated. 

(See Amicus App. at 133 (alleging that “the Defendants 

violated [Long’s] constitutional and civil rights ... by 

committing perjury and/or fabricating evidence and engaging 

in conspiratorial acts to hide evidence to prevent DNA 

testing, causing ... [Long] to be falsely convicted of capital 

murder”).) Although the Supreme Court has clarified that 

Heck does not bar a litigant from seeking access to DNA 

evidence through § 1983, see Skinner v. Switzer, 131 S. Ct. 

1289, 1298 (2011), the conspiracy described in Long’s 

complaint does not, even liberally construed, seek such relief. 

Therefore, we hold that the District Court committed 

no legal error in denying Long’s motion for reconsideration, 

and so did not abuse its discretion in declining to change its 

order dismissing Long’s complaint. And because the same 

result would obtain were we to ultimately determine that we 

have jurisdiction to review the District Court’s dismissal 

order, we need not remand for Fiorelli fact-finding.

III. Conclusion

For the foregoing reasons, we will affirm the judgment 

of the District Court.