United States District Court, E.D. Wisconsin
ORDER GRANTING MOTION FOR LEAVE TO APPEAL WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 24) AND GRANTING
MOTION FOR EXTENSION OF TIME TO FILE APPEAL (DKT. NO.
PAMELA PEPPER, United States District Judge
August 28, 2017, this court granted the respondent's
motion to dismiss the petitioner's petition for writ of
habeas corpus, denied a certificate of appealability
and dismissed the case. Dkt. No. 22. The court entered
judgment the same day. Dkt. No. 23. On October 2, 2017, the
court received from the petitioner a motion for leave to
appeal without prepayment of the filing fee. Dkt.
The court did not receive his notice of appeal, however,
until October 13, 2017-nine days after the clerk's office
wrote him a letter (dkt. no. 26), notifying him that it
hadn't received the notice of appeal. Dkt. No. 27. Once
it received the notice of appeal, the clerk's office
transmitted the appeal to the Seventh Circuit Court of
Appeals, and that court assigned the appeal an appellate case
number. Dkt. Nos. 30, 31. Two weeks later, the petitioner
filed a motion for extension of time to file an appeal. Dkt.
No. 33. The following day, the Seventh Circuit directed the
clerk of court to transfer the motion for extension of time
to this court for decision. Dkt. No. 32. The court will grant
the petitioner's motion for extension of time, and will
grant his motion to appeal without prepayment of the filing
Motion for Extension of Time to File Appeal (Dkt. No.
timely notice of appeal is a prerequisite to appellate
review.” McCarty v. Astrue, 528 F.3d 541, 544
(7th Cir. 2008) (citations omitted). Compliance with time
limitations is important, because the filing of the notice
“is an event of jurisdictional significance-it confers
jurisdiction on the court of appeals and divests the district
court of its control of the case involved in the
appeal.” Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982). In a civil case in which
the United States is not a party, a litigant must file a
notice of appeal within thirty days from the entry of
judgment. 28 U.S.C. § 2107(a); Fed. R. App. P.
4(a)(1)(A). The district court may extend that time if, no
later than thirty days after the original deadline for the
filing of notice of appeal, the appealing party asks the
court to do so, and that party shows “excusable neglect
or good cause” for not filing by the original deadline.
Fed. R. App. P. 4(a)(5).
court entered judgment on August 28, 2017; the petitioner did
not sign his notice of appeal until October 8, 2017, dkt. no.
27 at 1, and the court did not receive it until October 13,
2017. The petitioner, therefore, did not file his notice of
appeal within the thirty-day deadline. He did,
however, file this motion for an extension of time within
thirty days after the original thirty-day deadline expired
(the original deadline expired on September 27, 2017, and the
court received the motion for an extension of time on October
26, 2017-just inside the deadline). That means that the court
can accept his appeal, but only if the plaintiff has shown
that he had good cause for missing the original thirty-day
deadline, or if he can show that missing the deadline was due
to his excusable neglect.
may extend the deadline for filing an appeal “for good
cause” only if the appealing party missed the
thirty-day deadline through no fault of his own. See
Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012). A
court may extend the deadline based on “excusable
neglect” if the court finds that the untimely filing
was the appellant's fault, but that there is a reason to
excuse that fault. In deciding whether someone's neglect
to timely file was “excusable, ” courts look at
things like the length of the delay, and how that delay will
impact the case, the reason for the delay (whether the delay
was within the appellant's control), whether the
appellant acted in good faith, and whether granting the
extension of time would prejudice the other side.
Id. at 425-26 (quoting McCarty v. Astrue,
528 F.3d 541, 544 (7th Cir. 2008)).
petitioner says that he asked the librarian at the New Lisbon
Correctional Institution for “the notice of appeal to
the U.S. Court of Appeals for the Seventh Circuit
forms.” Dkt. No. 33 at 1. He also says that he told the
librarian that the notice of appeal “was to be
submitted to the United States District Court for the Eastern
District of Wisconsin.” Id. He asserts that
the librarian gave him the wrong form-the librarian gave him
the form for asking to proceed without prepaying the filing
fee in the district court. Id. He maintains that he
has “proof in the form of a disbursement request
submitted for copies for the notice of appeals of the Seventh
Circuit to be submitted to the U.S. District Court for the
Eastern District of Wisconsin.” Id. at 2.
application to proceed without paying the filing fee, which
the court received on October 2, 2017, is signed by the
petitioner, and dated September 27, 2017. Dkt. No. 24. That
was the day his notice of appeal was due. It appears to the
court that the petitioner thought that he was filing a notice
of appeal, when instead he mistakenly filed a request to
proceed without prepaying the filing fee.
court must determine whether the petitioner's (mistaken)
assumption that the prison librarian gave him a notice of
appeal form constitutes either excusable neglect or good
cause. The court cannot find that the petitioner had
“good cause” for missing the thirty-day deadline.
This is not a situation where the petitioner timely mailed
his notice of appeal, but the mail was stolen, or the mail
was damaged in bad weather. So the question is whether the
petitioner missed the deadline due to excusable neglect.
Seventh Circuit has explained that excusable neglect
“will generally be found where a party in good faith
relied on the actions and representations of the district
court or its officers, and consequently failed to file a
timely notice of appeal. Redfield v. Continental Cas.
Corp., 818 F.2d 596, 603 (7th Cir. 1987). The prison
librarian is not a district court officer. But it makes sense
that the petitioner would rely on her as an authority figure
who would have the appropriate knowledge of which forms to
file, and would give him the right one. The petitioner
completed the form the librarian gave him, and he signed it
on the date his notice of appeal was due. The court received
it only five days later-not a particularly long delay. (In
fact, under the “mailbox rule, ” an inmate is
deemed to have “filed” his notice of appeal
“at the moment the prisoner delivers it to a prison
official for mailing to the court.” Ray v.
Clements, 700 F.3d 993, 1002 (7th Cir. 2012) (citing
Houston v. Lack, 487 U.S. 266, 275-76 (1988)). While
the petitioner did not provide the court with evidence that
he gave the document he signed on September 27, 2017 to the
prison officials to mail that day, the fact that the court
received it five days later supports that conclusion.)
court also finds that the petitioner acted in good faith. On
October 4, 2017, the clerk's office sent the petitioner a
letter, telling him that while the clerk had received his
motion to proceed without prepaying the filing fee, it had
not received his notice of appeal. Dkt. No. 26. Nine days
later, the court received the actual notice of appeal, and it
was dated October 8, 2017-four days after the clerk's
office mailed the letter notifying the petitioner of the
error. Dkt. No. 27. The petitioner acted promptly when he
realized that there was a problem. He also followed up by
filing this motion for an extension of time.
the court does not see that the slight delay in the
court's receiving the notice of appeal will prejudice the
opposing party. The notice of appeal arrived at the court a
total of eleven days after the thirty-day deadline. In the
lifetime of an appeal, this is not an amount of time that
would prejudice the respondent's ability to defend the
of these reasons, the court finds that the petitioner's
failure to file his notice of appeal within the thirty days
prescribed by the statute and rules was the result of
excusable neglect, and will grant his motion to extend that