Wilder v. Doctor John Doe #1 et al
Filing
22
OPINION AND ORDER granting 21 Motion for Reconsideration. Signed by Judge James L Graham on 12/13/12. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gary D. Wilder,
:
Plaintiff,
:
v.
:
:
Terry Collins, et al.,
Defendants.
Case No. 2:12-cv-0064
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
:
OPINION AND ORDER
On May 8, 2012, this Court dismissed all claims in this case
as either time-barred or frivolous, depending on what time frame
those claims arose in.
Ohio May 8, 2012).
Wilder v. Collins, 2012 WL 1606035 (S.D.
Plaintiff subsequently filed a notice of
appeal, which, at least based on the filing date (June 8, 2012)
was one day late.
The Court denied his accompanying motion for
an extension of time within which to file a notice of appeal
because it was filed outside the initial 30-day filing period and
because he had not demonstrated extraordinary circumstances
justifying an extension.
(Doc. 20).
On October 19, 2012, Plaintiff moved for reconsideration of
that order.
In this motion, he argues that he had delivered his
“legal mail” (by which the Court assumes he means both the notice
of appeal and the motion for an extension of time) to the prison
mailroom on June 5, 2012, but that his mail was held for a short
period of time so that the prison could assess the mailing costs
to his prison account.
Under the “mailbox rule,” see Houston v.
Lack, 487 U.S. 266 (1988), delivery of a notice of appeal to
prison mail officials is deemed the equivalent of filing.
Therefore, he contends that he did file his notice of appeal in a
timely fashion.
As evidence, he has submitted a copy of a cash
withdrawal slip dated June 5, 2012.
The Court also notes that
the certificate of service on his notice of appeal is dated June
6, 2012, which is one day before the expiration of the thirty-day
appeal period.
Given these new facts, the Court concludes that the notice
of appeal was timely filed, and that the motion for an extension
of time should have been denied as moot.
the appellate filing fee.
Plaintiff has also paid
Because he is a prisoner, however, and
has filed this action against state officials, were he seeking
leave to proceed on appeal in forma pauperis, the Court would
still have to determine if his appeal had been filed in good
faith. See 28 U.S.C. §1915(a)(3).
However, by paying the filing
fee, Mr. Wilder is not seeking leave to proceed in that fashion.
As the Court of Appeals has noted, a prisoner always has the
option of “‘pay[ing] the full filing fee and any relevant costs
and proceed[ing] on appeal for plenary review ....’”
Owens v.
Keeling, 461 F.3d 763, 774 (nth Cir. 2006), quoting 16A WRIGHT,
MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE §3970 (3d Ed.
1999).
Thus, no certification from this Court is needed.
For these reasons, the Court GRANTS the motion for
reconsideration (Doc. 21) and reconsiders its order denying the
motion for extension of time to the extent that such denial is
now based on grounds of mootness, given the timely filing of the
notice of appeal.
IT IS SO ORDERED.
Date: December 13, 2012
s/James L. Graham
James L. Graham
United States District Judge
-2-
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