Smith v. Montgomery County Sheriff's Office et al

Filing 157

REPORT AND RECOMMENDATIONS re 147 MOTION for Extension of Time to File filed by Billy M. Smith. The Magistrate Judge confesses error in his prior conclusory finding of good cause. Mr. Smith has demonstrated neither good cause nor excusable neglect and his Motion for Extension of Time to Appeal should be denied. Objections to R&R due by 6/3/2013. Signed by Magistrate Judge Michael R Merz on 5/17/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BILLY M. SMITH,

:

Plaintiff,

Case No. 3:10-cv-448
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
MONTGOMERY COUNTY
SHERIFF=S OFFICE, et al.,
Defendants.

REPORT AND RECOMMENDATIONS
This case is before the Court on remand from the United States Court of Appeals for the
Sixth Circuit (Smith v. Montgomery County Sheriff’s Office, Case No. 13-3164, Order of March
26, 2013, copy at Doc. No. 153). That Court decided that the Magistrate Judge’s Decision and
Deficiency Order (Doc. No. 149) was null and void because ultra vires and remanded the case
for the District Court to decide whether to grant Plaintiff’s Motion for Extension of Time to File
Appeal (Doc. No. 147).1
Because this case was filed pro se, it was referred to the Magistrate Judge by the Dayton
location of court General Order of Assignment and Reference. As noted by the Court of
Appeals, Magistrate Judges do not have authority to rule on post-judgment motions such as this
one (Doc. No. 153, PageID 2830, citing Massey v. City of Ferndale, 7 F.3d 506, 509-10 (6th Cir.
1993)).

Accordingly, the Magistrate Judge makes findings of fact and a recommended

disposition of the Motion for Extension of Time to File Appeal as required for post-judgment
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The Court of Appeals instructed us to “allow defendants-appellants a reasonable time to respond to Smith’s motion
before adjudication.” (Doc. No. 153, PageID 2830.) Upon remand the Court set a date for response which was
equal to the time the Court allows for a memorandum in opposition to a motion and then allowed Plaintiff time to
reply (Doc. No. 154).

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motions referred under 28 U.S.C. § 636(b)(3).
Defendants have filed a consolidated Memorandum in Opposition (Doc. No. 155) and
Plaintiff has filed a Reply in Support (Doc. No. 156). Having considered the positions of the
parties and the docket, the Magistrate Judge makes the following findings regarding relevant
procedural facts.
On October 9, 2012, the Magistrate Judge filed a Report and Recommendations
recommending, on cross-motions for summary judgment, that the case be dismissed with
prejudice. As is standard practice with this Magistrate Judge, the last page of the Report
contained the following Notice:

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file
specific, written objections to the proposed findings and
recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this
period is automatically extended to seventeen days because this
Report is being served by one of the methods of service listed in
Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further
by the Court on timely motion for an extension. Such objections
shall specify the portions of the Report objected to and shall be
accompanied by a memorandum in support of the objections. A
party may respond to another party’s objections within fourteen
days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on
appeal. See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140 (1985).

(Report, Doc. No. 138, PageID 2762.) Seventeen days after October 9, 2012, is October 26,
2012. Defendants assert that “Smith did not file timely written objections within the 14 day
period following the issuance of the Magistrate Judge’s Report and Recommendations. Instead,
on November 5, 2012, well after the 14 day period had already expired, Smith sought an
extension of time to file his objections.” (Memo in Opp. Doc. No. 155, PageID 2838.) While
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motion for extension was not received by the Court until November 5, 2012, it is deemed filed as
of the date Smith deposited it in the prison mail system, which he certified was October 31, 2012
(Doc. No. 141, PageID 2770). That was still five days after the objection period expired, but
Smith averred he had only received the Report on October 25, 2012. Id. at PageID 2769. Smith
sought a ninety-day extension, but the Magistrate Judge granted him only until December 1,
2012, to file the objections (Notation Order, November 6, 2012). Smith had filed nothing as of
December 10, 2012, nine days after the extended objection period ended, and Judge Rose
adopted the Report and entered the Judgment (Doc. Nos. 142, 143) from which Smith seeks to
appeal. The docket shows the Order and Judgment were mailed to Smith on December 10, 2012;
the next thing he filed was a Motion for Relief from Judgment which he asserts he mailed on
January 25, 2013, and the Court received on January 28, 2013 (Doc. No. 114-1, PageID 2791).
Two days later, on January 30, 2013, the Magistrate Judge recommended denying the Motion for
Relief from Judgment (R&R, Doc. No. 145). Judge Rose adopted that Report on February 28,
2013, over Smith’s Objections (Doc. No. 152). Smith has never appealed from denial of the
Rule 60(b) Motion.

Standard for Granting an Extension of Time

As the Court of Appeals noted in its remand order, Smith’s Motion for Extension under
Fed. R. App. P. 4(a)(5) was timely filed on February 5, 2013, and this Court therefore has
jurisdiction to decide it (Doc. No. 153, PageID 2830). That rule also provides the moving party
must show either excusable neglect or good cause.
Defendants assert that the “good cause” branch of this rule is available only in cases

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where the motion to extend is filed before the time to appeal expires, citing Marsh v. Richardson,
873 F.2d 129 (6th Cir. 1989), and Douglas v. Swing, 2011 U.S. Dist. LEXIS 120212 (S.D. Ohio
2011), aff’d, 2012 U.S. App. LEXIS 21371 (6th Cir. 2012)(Memo in Opp., Doc. No. 155, PageID
2840). However, Marsh, on which Douglas relies, was decided under Fed. R. App. P. 4(a)(5) as
it existed after the 1979 amendments:
Although the language of the rule allows extension of time upon a
showing of either "good cause" or "excusable neglect," the
Advisory Committee Notes state that "good cause" is applicable
only to cases where the motion to extend is filed before the 30-day
time period expires. Advisory Committee Notes to 1979
Amendment to Fed. R. App. P. 4(a)(5). Thus, the District Court
erred in evaluating respondent's motion under the "good cause"
standard. The grant of the extension should be evaluated under the
"excusable neglect" standard.

873 F.2d at 130. However, this Rule was again amended in 2002 to eliminate this distinction
which, although made by many courts of appeals, was based on a misunderstanding of what the
Supreme Court had adopted. Of the proposed amendment in 2002, the Advisory Committee
wrote:
Subdivision (a)(5)(A)(ii). Rule 4(a)(5)(A) permits the district court
to extend the time to file a notice of appeal if two conditions are
met. First, the party seeking the extension must file its motion no
later than 30 days after the expiration of the time originally
prescribed by Rule 4(a). Second, the party seeking the extension
must show either excusable neglect or good cause. The text of Rule
4(a)(5)(A) does not distinguish between motions filed prior to the
expiration of the original deadline and those filed after the
expiration of the original deadline. Regardless of whether the
motion is filed before or during the 30 days after the original
deadline expires, the district court may grant an extension if a party
shows either excusable neglect or good cause.
Despite the text of Rule 4(a)(5)(A), most of the courts of appeals
have held that the good cause standard applies only to motions
brought prior to the expiration of the original deadline and that the
excusable neglect standard applies only to motions brought during
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the 30 days following the expiration of the original deadline. See
Pontarelli v. Stone, 930 F.2d 104, 109–10 (1st Cir. 1991)
(collecting cases from the Second, Fifth, Sixth, Seventh, Eighth,
Ninth, and Eleventh Circuits). These courts have relied heavily
upon the Advisory Committee Note to the 1979 amendment to
Rule 4(a)(5). But the Advisory Committee Note refers to a draft of
the 1979 amendment that was ultimately rejected. The rejected
draft directed that the good cause standard apply only to motions
filed prior to the expiration of the original deadline. Rule 4(a)(5),
as actually amended, did not. See 16A Charles Alan Wright, et al.,
Federal Practice and Procedure §3950.3, at 148–49 (2d ed. 1996).
***
Rule 4(a)(5)(A)(ii) has been amended [in 2002] to correct this
misunderstanding and to bring the rule in harmony in this respect
with Rule 4(b)(4). A motion for an extension filed prior to the
expiration of the original deadline may be granted if the movant
shows either excusable neglect or good cause. Likewise, a motion
for an extension filed during the 30 days following the expiration
of the original deadline may be granted if the movant shows either
excusable neglect or good cause.
Advisory Committee Note to 2002 Amendment to Fed. R. App. P. 4(a)(5)(A)(ii). The Rule as
amended in 2002 and presently in effect provides
(5) Motion for Extension of Time.
(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) 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) expires, that party
shows excusable neglect or good cause.

Because Mr. Smith filed the Motion for Extension within thirty days of the date on which
the time to appeal ran, he can receive an extension if he has shown either good cause or
excusable neglect. Nevertheless, these two standards are distinct. Again as explained by the

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Advisory Committee:
The good cause and excusable neglect standards have “different
domains.” Lorenzen v. Employees Retirement Plan, 896 F.2d 228,
232 (7th Cir. 1990). They are not interchangeable, and one is not
inclusive of the other. The excusable neglect standard applies in
situations in which there is fault; in such situations, the need for an
extension is usually occasioned by something within the control of
the movant. The good cause standard applies in situations in which
there is no fault—excusable or otherwise. In such situations, the
need for an extension is usually occasioned by something that is
not within the control of the movant.
Thus, the good cause standard can apply to motions brought during
the 30 days following the expiration of the original deadline. If, for
example, the Postal Service fails to deliver a notice of appeal, a
movant might have good cause to seek a post-expiration extension.
It may be unfair to make such a movant prove that its “neglect”
was excusable, given that the movant may not have been neglectful
at all. Similarly, the excusable neglect standard can apply to
motions brought prior to the expiration of the original deadline.
For example, a movant may bring a pre-expiration motion for an
extension of time when an error committed by the movant makes it
unlikely that the movant will be able to meet the original deadline.
Advisory Committee Note to 2002 Amendments to Fed. R. App. P. 4(a)(5)(A)(ii).
Based on the 2002 amendments, Marsh is no longer good law. Without adverting to
Marsh, the Sixth Circuit, in affirming the District Court’s decision in Douglas v. Swing, supra,
recognized the either good cause or excusable neglect could be shown on a timely motion to
extend:
Federal Rule of Appellate Procedure 4(a)(5) allows a district court
to extend the time to appeal upon a motion filed not later than
thirty days after the expiration of the time for filing a notice of
appeal, on a showing of excusable neglect or good cause. The
motion for an extension in this case was timely filed. A ruling on a
motion for an extension of time to appeal is reviewed for an abuse
of discretion. Barnes v. Cavazos, 966 F.2d 1056, 1061 (6th Cir.
1992). A showing of good cause requires a demonstration that
forces beyond the control of the appellant prevented him from
filing a timely notice of appeal. Nicholson v. City of Warren, 467
F.3d 525, 526 (6th Cir. 2006). In this case, counsel argued that he
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miscalculated the date for filing the notice of appeal and that
Douglas did not pay a retainer until after the time for the appeal
had expired. Both of these reasons were entirely within the control
of Douglas and his counsel. Therefore, these reasons do not
establish good cause to extend the appeal period. Excusable
neglect is a strict standard that will be found only in extraordinary
cases. Id. Miscalculation of the filing deadline does not constitute
excusable neglect. Barnes, 966 F.2d at 1061-62. Moreover, the
district court did not abuse its discretion in concluding that
counsel's failure to receive a retainer did not excuse his neglect in
failing to file a timely notice of appeal.
Douglas v. Swing, 2012 U.S. App. LEXIS 21371 **4-5 (6th Cir. 2012).

Application of the Standard

Whatever distinction the Advisory Committee may have intended, Smith conflates the
good cause and excusable neglect standards in his Motion. He notes that he is pro se and “not
versed in the law.” (Motion, Doc. No. 147, PageID 2812.) He was, he says, relying on another
inmate to prepare his never-filed objections to the R&R recommending summary judgment for
the Defendants. Id. That inmate left the prison and Smith says he did not realize his objections
had not been filed until he received Judge Rose’s Order and Judgment. Id. He claims he
received the Order and Judgment “during a time of peak inactivity and staff unavailability at his
place of confinement over the holiday season.” Id. Rather than filing a notice of appeal, he
turned his attention and energy first to preparing the Motion for Relief from Judgment. Id.
Smith has not established “good cause” as the Advisory Committee explains that phrase.
That is, it was not something someone else did with respect to the case which prevented him
from filing a timely notice of appeal. Instead, it was his own focus on preparing the Motion for
Relief from Judgment.

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Nor has Smith shown excusable neglect. A notice of appeal is not a difficult document to
prepare; as actually done by Smith in this case, the text is only two paragraphs long, plus a
certificate of service (Doc. No. 148). He did not need help from the prison staff to prepare it and
he already knew from the Order and Judgment that his prior assisting inmate was not available to
help, so the unavailability of those persons does not excuse the neglect.
Smith’s pro se status and lack of knowledge of the law are also of no assistance to him.
The laxity accorded pro se litigants applies to pleading standards, not to straightforward
scheduling requirements which are as understandable by a layman as by a lawyer. Jourdan v.
Jabe, 951 F.2d 108 (6th Cir. 1991). Out of a sense of fairness for other parties who choose
counsel and must bear the risk of their attorney’s mistakes, no special treatment is to be afforded
to ordinary civil litigants who proceed pro se. Brock v. Hendershott, 840 F.2d 339, 342-43 (6th
Cir. 1988).
Nor is Smith entitled to more time because he received the Order and Judgment during
the holidays. The Rules already contain allowances for filings due when the courts are closed for
legal holidays, and the time to appeal cannot be extended out of some sense of generosity
expected to arise from the “Christmas spirit,” if that is what Smith is obliquely arguing.
Moreover, as Defendants argue, Smith’s asserted lack of legal sophistication is not to be
taken at face value in light of his extended pre-trial practice in this Court.
In his Reply Memorandum, Smith again adverts at some length to slowdown of the
prison during the holidays and the complex legal issues involved with Fed. R. Civ. P. 59 and 60
and what would have happened to district court jurisdiction if an appeal had been filed. None of
this serves to explain the inability to type a two-paragraph notice of appeal and mail it within
thirty days of the Judgment.

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Smith has filed multiple affidavits with his Reply Memorandum and invites further
factual development. The demonstrate that Steve Clemmons did legal work for Smith, but they
are not material to the question of why, after Smith knew Clemmons was gone, he could not
prepare and file a two-paragraph notice of appeal within thirty days.

Conclusion

The Magistrate Judge confesses error in his prior conclusory finding of good cause. Mr.
Smith has demonstrated neither good cause nor excusable neglect and his Motion for Extension
of Time to Appeal should be denied.
May 17, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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