Thomas v. McElroy

Filing 24

ORDER extending the time to appeal in this case until January 8, 2011. The Clerk of Court is directed to transmit a copy of the attached order to the United States Court of Appeals for the Seventh Circuit. Signed by Judge G. Patrick Murphy on 11/18/2011. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS, )
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)
)
Plaintiff,
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)
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Defendant.

CHARLES BRUCE
IDOC # K89065,

vs.
KEN McELROY,

CIVIL NO. 10-424-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on the order of the United States Court of Appeals for the
Seventh Circuit entered October 20, 2011 (Doc. 23). On December 8, 2010, the Court dismissed this
action, which Plaintiff Charles Bruce Thomas, a prisoner at the Pinckneyville Correctional Center
(“Pinckneyville”), brings pro se against Defendant Ken McElroy pursuant to 42 U.S.C. § 1983 for
an alleged violation of Thomas’s constitutional rights by McElroy while McElroy was acting under
color of state law; judgment was entered the same day. On January 12, 2011, the Court docketed
a document from Thomas styled “Plaintiff’s Objection to the Report and Recommendation of
Magistrate Judge G. Patrick Murphy in the Instant Case” (Doc. 7). The Court construed Thomas’s
filing as a motion to alter or amend a judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure and, on January 31, 2011, the Court denied Thomas’s filing.

See Doc. 8.

On March 7, 2011, a notice of appeal by Thomas was docketed. See Doc. 9. The Seventh Circuit
Court of Appeals ruled in its October 20 order that Thomas’s purported “objection” to the Court’s
judgment should have been construed by the Court as a notice of appeal with an implied request for
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an extension of time to file a notice of appeal, and remanded the case to this Court
for a determination as to whether Thomas’s request for an extension of time to appeal
should be granted.
As noted, the Court entered judgment in this case on December 8, 2010. Thus, Thomas
had thirty days from that date to file a notice of appeal. See Fed. R. App. P. 4(a)(1)(A). Under the
so-called “mailbox rule,” a prisoner’s legal papers, including a notice of appeal, are deemed to be
filed on the date the prisoner delivers the papers to prison officials for mailing. See Houston v.
Lack, 487 U.S. 266, 271 (1988). Unfortunately, in this case Thomas did not deliver his “objection,”
construed as a notice of appeal, to prison officials for mailing until January 8, 2011, one day after
the expiration of the thirty-day deadline for filing a notice of appeal. Under Rule 4 of the Federal
Rules of Appellate Procedure, however,
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this
Rule 4(a)[(1)(A)] expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the
time prescribed by this Rule 4(a)[(1)(A)] expires, that party shows excusable neglect
or good cause.
Fed. R. App. P. 4(a)(5). In this case, there seems to be no issue of neglect, excusable or otherwise,
by Thomas in the belated filing of his notice of appeal. Rather, it appears from the record that
Thomas received the Court’s order dismissing this case and corresponding judgment on
January 8, 2011, and delivered his “objection” thereto, construed as a notice of appeal, to prison
officials for mailing the same day. See Doc. 7 at 1 ¶ 2, 2 ¶ 7, 5. Therefore, the Court turns to the
issue of whether there is good cause in this case to extend the time to file a notice of appeal by
one day, until January 8, 2011.

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In general, “the standard of ‘good cause’ applies in situations where the need for the
extension [of time to file a notice of appeal] is occasioned by something out of the movant’s
control[.]”

United States v. Rollins, No. 05-CR-30133-5-DRH, 2007 WL 3333252, at *1

(S.D. Ill. Nov. 7, 2007) (quoting Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004)).
See also United States v. Hirsch, 207 F.3d 928, 929 (7th Cir. 2000) (suggesting that a clerk of court’s
failure to perform a “ministerial act whose omission could have serious consequences for a criminal
defendant” would be good cause for extending the time for filing an appeal); Fed. R. App. P. 4
advisory committee’s note (stating that “[t]he good cause standard applies in situations in which
there is no fault – excusable or otherwise,” because in some cases, “[i]t may be unfair to make . . . a
movant prove that its ‘neglect’ was excusable, given that the movant may not have been neglectful
at all .”). Here it appears that the untimeliness of Thomas’s notice of appeal was occasioned by the
Court’s error rather than by any neglect on Thomas’s part: the Clerk of Court mistakenly sent the
Court’s dismissal order and judgment in this case not to Thomas but to Frank Taylor, a prisoner at
the Menard Correctional Center, so that the order and judgment did not reach Thomas at
Pinckneyville until January 8, 2011. See Doc. 7 at 1 ¶ 2, 2 ¶ 7, 5, 7. Inasmuch as the belatedness
of Thomas’s notice of appeal is attributable to the Court’s error, not Thomas’s neglect, the Court
finds that there is good cause to extend the time to appeal in this case by one day, to
January 8, 2011.1

1. It should be noted that, while the Court finds that there is good cause to extend the time to
appeal in this case, the Court remains persuaded that Thomas’s appeal is meritless, given
that Thomas’s claim against McElroy under 42 U.S.C. § 1983 plainly is barred by the applicable
two-year statute of limitations. See Kalimara v. Illinois Dep’t of Corr., 879 F.2d 276, 276-77
(7th Cir. 1989). As Thomas concedes, he was aware of his constitutional claim against McElroy as
early as 2000, when Thomas filed a petition in this Court pursuant to 28 U.S.C. § 2255. See Doc. 7
at 2 ¶ 12.
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To conclude, Thomas’s January 8 filing (Doc. 7), construed as a notice of appeal and an
implied request for an extension of the time to appeal, is GRANTED. For good cause shown, the
time to appeal in this case is EXTENDED by one day, to January 8, 2011.
IT IS SO ORDERED.
DATED: November 18, 2011

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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