Kimble v. Coffeeville Police Dept. et al

Filing 135

ORDER re Notice of Appeal filing date; directing Clerk to transfer this case back to USCA 5th Circuit for further proceedings.. Signed by Senior Judge Neal B. Biggers on 5/18/20. (jla)

Case: 3:18-cv-00038-NBB-RP Doc #: 135 Filed: 05/18/20 1 of 2 PageID #: 442

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
TYROWONE LOUIS KIMBLE
V.

PLAINTIFF
CIVIL ACTION NO. 3:18-CV-00038-NBB-RP

COFFEEVILLE POLICE DEPT., et al.

DEFENDANTS
ORDER

This matter comes before the Court upon the Fifth Circuit Court of Appeals’ order
remanding this case for a determination as to the filing date of the plaintiff’s notice of appeal.
See Doc. # 134. In particular, the Fifth Circuit has directed this Court to determine whether the
plaintiff’s notice of appeal was filed on or before the filing deadline. Id. This Court entered an
opinion and order dismissing the instant case on October 9, 2019. Doc. # s 125, 126. The
plaintiff’s notice of appeal, therefore, was due on or before November 8, 2019. See Fed. R. App.
P. 4(a)(1)(A).
A prisoner’s pro se notice of appeal is timely filed if deposited in the correctional
institution’s internal mail system on or before the last day of filing. See Fed. R. App. P. 4(c)(1);
see also Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (citing Houston v. Lack, 487
U.S. 266 (1988)). The plaintiff signed the notice of appeal on November 1, 2019, but it was not
stamped as “filed” in this Court until November 14, 2019. The envelope in which the
submission was mailed shows a postmark date of November 12, 2019, just a few days after the
filing deadline. There is often a significant delay between a prisoner’s submission of legal
documents for mailing and the time the institution processes and actually mails them to the
courts. Upon due consideration, the Court finds that the plaintiff presented his notice of appeal
to prison officials for mailing before the filing deadline.

Case: 3:18-cv-00038-NBB-RP Doc #: 135 Filed: 05/18/20 2 of 2 PageID #: 443

Therefore, it is hereby ORDERED:
1) That the plaintiff’s notice of appeal was deposited to prison officials on the date it
was signed, November 1, 2019; and
2) That the Clerk of Court is DIRECTED to transfer this case back to the Fifth Circuit
Court of Appeals for further proceedings as may be appropriate.
This, the 18th day of May, 2020.
/s/ Neal Biggers
______
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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