Everage v. Young

Filing 39

ORDER re 36 USCA LIMITED ORDER OF REMAND, resolving 38 MOTION for Status filed by Tarry Williams and reopening the time to appeal in accord with Fed. R. App. P. 4(a)(6). Signed by Judge David R. Herndon on 6/9/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH EVERAGE,
Petitioner,
vs.

Case No. 3:12-cv-00027-DRH

TARRY WILLIAMS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court on the limited order of remand as to
petitioner Kenneth Everage’s notice of appeal (Doc. 36). Rule 4(a) of the Federal
Rules of Appellate Procedure requires that a notice of appeal in a civil case be
filed in the district court within 30 days of the entry of the judgment or order
appealed. The instant case was dismissed with prejudice on September 30, 2014
(Doc. 26) and the notice of appeal was filed on February 17, 2015 (Doc. 31), well
over three months late.
In his notice of appeal, Everage states he never received notice of final
judgment because he was transferred to another correctional facility and, as a
result, his notice of appeal was untimely. The Appellate Court interprets this as a
motion under Rule 4(a)(6) to reopen the time to appeal (in addition to a notice of
appeal). The Appellate Court has instructed the Court to determine whether the
request to reopen the appeal period was timely filed pursuant to Fed. R. App. P.
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4(c) (prison mailbox rule) and otherwise meets the requirements of Fed. R. App.
P. 4(a)(6). And, if so, whether in its discretion it chooses to reopen the time to
appeal. See In re Marchiando, 13.F3d 1111,1114 (7th Cir. 1994).
The Court finds the request to reopen the appeal period was timely filed
pursuant to Fed. R. app. P. 4(c) and otherwise meets the requirements of Fed. R.
App. P. 4(a)(6). 1 Accordingly, the Court hereby GRANTS the petitioner’s motion to
reopen the time to appeal for a period of 14 days from the date this order is
entered.
IT IS SO ORDERED.
Signed this 9th day of June, 2015.

Digitally signed by
David R. Herndon
Date: 2015.06.09
14:58:03 -05'00'
United States District Judge

1 Everage states he did not receive timely notice of the entry of judgment because shortly before
entry of judgment he was transferred to another facility. Further, the notice of appeal (interpreted
as a motion for reopening the time to file an appeal) was filed within the confines of 4(a)(6) and
4(c). Finally, the Court finds that no party would be prejudiced by reopening the time to file an
appeal.
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