Strong v. Corrigan et al

Filing 30

ORDER signed by Judge Pamela Pepper on 10/25/2018 GRANTING 18 28 Plaintiff's Motions for Extension of Time; DEEMING timely filed 20 Plaintiff's Notice of Appeal docketed on 6/14/2018. (cc: all counsel, via mail to Dennis Strong at Redgranite Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENNIS STRONG,
Plaintiff,
v.

Case No. 17-cv-1063-pp
Appeal No. 18-2319

CHAD CORRIGAN and
STATE OF WISCONSIN DOC,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S LETTER MOTION FOR EXTENSION OF
TIME TO FILE NOTICE OF APPEAL (DKT. NO. 18) AND GRANTING
PLAINTIFF’S MOTION FOR EXTENSION OF TIME (DKT. NO. 28)
______________________________________________________________________________
The plaintiff is a prisoner representing himself. On May 8, 2018, the
court dismissed this case, dkt. no. 15, and entered judgment dkt. no 16. On
June 14, 2018, the court received the defendant’s notice of appeal. Dkt. No. 20.
On July 20, 2018, the court granted the plaintiff’s motion for leave to appeal
without prepayment of the appeal fee, dkt. no. 26, and the case moved along in
the Seventh Circuit Court of Appeals until August 10, 2018, when the
defendant filed a motion for extension of time to file the notice of appeal. Dkt.
No. 28. The Seventh Circuit has remanded the case to this court for the limited
purpose of ruling on that August 10, 2018 motion. Dkt. No. 29.
A little background is helpful to understanding the motion. Under Fed. R.
App. P. 4(a)(1)(A), a party in a civil case must file his notice of appeal within
thirty days after the court enters judgment. Because this court entered
judgment on May 8, 2018, the plaintiff needed to file his notice of appeal on or
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before June 7, 2018. As noted above, the court did not receive the notice until
June 14, 2018—a week later.
In fact, the plaintiff filed several documents on June 14, 2018. The
clerk’s office docketed six separate items on that date. The court suspects that
all these items arrived at the clerk’s office in a single packet, because the
date/time stamps on them all reflect that they were stamped between 11:32
and 11:34 a.m. that day. The clerk’s office had the task of trying to figure out
what each of the documents was, and how to docket it. This task was likely a
bit difficult, because the plaintiff included in the packet several “cover” letters.
For example, the clerk’s office docketed five pages at Dkt. No. 19—a one-page,
undated letter from the plaintiff informing the clerk that he was providing the
clerk with his inmate trust account, and his four-page inmate trust account
statement for the period March 22 through May 21, 2018. Dkt. No. 19. It
seems logical that the clerk’s office would docket those two items together in
one docket entry, and would call that one entry “Prisoner Trust Fund Account
Statement.” Id. The clerk’s office docketed two pages at Dkt. No. 20—the notice
of appeal, and a one-page, undated letter from the plaintiff informing the clerk
that he was enclosing his notice of appeal, a docketing statement, an affidavit
accompanying his motion to proceed without prepaying the filing fee and his
“‘Memorandum of Issues on Appeal’ attached and incorporated therein the
above affidavit.” Id. at 2. The clerk’s office separately docketed the docketing
statement (dkt. no. 21), the affidavit in support of the request to proceed

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without prepaying the filing fee (dkt. no. 23) and the plaintiff’s legal
memorandum (dkt. no. 22).
That takes care of five of the six documents the clerk’s office docketed
that day. The clerk’s office docketed the sixth document—a four-page letter,
with three attachments—as “LETTER from Plaintiff regarding filings.” Dkt. No.
18. The letter informs the clerk of court that the defendant was submitting
certain “enclosures” that he’d originally submitted for electronic filing at Dodge
Correctional Institution. Id. at 1. It goes on to explain that five days after the
plaintiff had submitted the “enclosures” for filing with the staff at Dodge, he’d
been transferred to another prison. He’d subsequently learned that the staff at
Dodge likely had not filed the “enclosures.” Id. The plaintiff went on to describe
the enclosures (“a notice of appeal in Case No. 17-cv-1063 which [he] had filed
timely for e-filing nearly (2) weeks in advance of deadlines to do so”), and he
referred the clerk to the dates on an enclosed large manila envelope. Id. at 2.
He said that he received these enclosures by return mail, “which has now
exceeded the deadlines.” Id. He asked the clerk to make sure to scan all the
enclosures into the docket for both this case and another case he had pending
in the Eastern District (Case No. 17-cv-1765), “to establish [his] good faith
efforts of timely filing the same with your office.” Id. at 3. He also asked the
clerk to “assure the above attachments enclosed herein are indexed in the
court docket so [he] may reference the same in impending litigations upon the
State of Wisconsin.” Id. at 3. The plaintiff closed the letter by thanking the
clerk for giving the matter his prompt attention. Id. at 4.
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As noted above, the clerk’s office labeled this document as exactly what it
was—a letter from the plaintiff about his filings. It attached to that letter two
envelopes (including the large manila envelope the plaintiff had referenced) and
an inmate interview request from the plaintiff. Dkt. Nos. 18-1, 18-2, 18-3. The
letter asked the clerk to do two things: scan all the documents he’d sent into
the system for the two cases he listed, and “index” the documents so that he
could reference them in other litigation. The clerk did both of those things. The
plaintiff did not ask the court to find that he’d timely filed his notice of appeal
and did not ask the court to extend the deadline for filing his notice of appeal.
Consequently, the court did not do anything further with the plaintiff’s letter
about his filings.
Almost two months later, on August 10, 2018, the court received the
plaintiff’s motion for extension of time to file the notice of appeal—the motion
the Seventh Circuit has referred to this court. Dkt. No. 28. This document
clearly is a motion; it has a caption—“Motion for Extension of Time to File
Notice of Appeal.” Id. at 2. It asks the court to do something—to issue an order
granting an extension of time for him to file his notice of appeal. Id. It refers the
court to the “cover letter submitted to the clerk attached to the 6/14/2018
filing of the notice of appeal.” Id. It argues that the contents of that “cover
letter,” along with the postmarked envelopes and inmate interview request,
demonstrated his efforts to file the notice of appeal by the deadline. Id. at 3.
The motion argues that the plaintiff made a good-faith effort to timely file the
notice of appeal, and that the “factors contributing to the delay” were outside of
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his control. Id. The motion concluded by asking the court to deem the plaintiff’s
notice of appeal timely filed. Id.
One final background fact: the court received the plaintiff’s motion to
deem the notice of appeal timely filed on August 10, 2018, over two months
ago. The court did not timely act on that motion, and that error is the
responsibility of the court. The court apologizes to the parties and the Court of
Appeals for failing to timely address the motion.
The court now considers what the plaintiff has asked it to do: “extend”
the deadline for filing his notice of appeal, after the fact. Rule 4(a)(5)(A) allows a
court to extend the deadline for filing a notice of appeal if (a) the party makes
his request for an extension of time within the thirty-day appeal period, or (b)
the party can show excusable neglect or good cause for failing to timely file the
notice. Because the plaintiff did not file his motion for an extension of time
within the thirty-day window following the expiration of the time to appeal, this
court can extend that deadline only if the plaintiff has shown “excusable
neglect” or “good cause.”
In its order remanding the motion to this court, the Seventh Circuit
noted that the motion directed the court’s attention to a four-page “cover letter”
that accompanied his notice of appeal, which the appellate court described as
recounting “[the plaintiff’s] efforts to have e-filed the notice of appeal in advance
of the deadline.” Dkt. No. 29 at 2. The court of appeals treated the plaintiff’s
four-page letter to the clerk of court—the one that the clerk docketed as a letter
about his filings—as a motion to extend the time to appeal under Rule 4(a)(5),
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directed this court to resolve that motion. Id. Based on the Seventh Circuit’s
order, the clerk’s office has re-docketed the plaintiff’s letter as a motion for an
extension of time to file his appeal. Dkt. No. 18. But the plaintiff did not file
that motion within the thirty-day window, either, and so again, the only way
the court can grant the relief the plaintiff seeks is if he has shown “excusable
neglect” or “good cause.”
The plaintiff has not alleged that his late filing was the result of
“inadvertence, mistake, or carelessness”—some of the circumstances that can
constitute excusable neglect. See United States v. Torres, 372 F.3d 1159, 1162
(7th Cir. 2004) (citing Pioneer Investment Serv’s Co. v. Brunswick Assoc. Ltd.
P’ship, 507 U.S. 380, 388 (1993)). Rather, he argues that he had good cause for
the late filing. The plaintiff explains that he gave his notice of appeal to the staff
at Dodge for e-filing1 on May 25, 2018. Dkt. No. 18 at 1. Five days later, he was
transferred to Redgranite. He says that on June 11, 2018—over two weeks after
he’d given the notice to the staff at Dodge, and four days after the deadline for
filing his notice of appeal—he got the notice of appeal back, and figured out
that the staff at Dodge likely did not file it for him. Id. at 1-2.
The copy of the manila envelope that the plaintiff included in the
materials he sent to the clerk’s office supports the plaintiff’s claim. It is
addressed to the inmate accounts unit at Redgranite, with the plaintiff’s name
and inmate number beneath the address. Dkt. No. 18-2. The envelope is
Dodge Correctional Institution participates in the court’s Prisoner E-Filing
Program, under which prison staff email prisoner filings to the court, and court
staff scans the documents into the electronic docket.
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postmarked June 6, 2018—the day before the deadline for filing the notice of
appeal—and stamped “received” by Redgranite on June 8, 2018—two days
later. Id. Assuming that, as the plaintiff says, his notice of appeal and other
documents were in this envelope, the envelope shows that as of the day before
the appeal deadline expired, staff at Dodge was still in possession of the notice
of appeal; as of the day after the deadline, it had arrived at Redgranite. It had
not been filed with this court, even though the plaintiff had given it to Dodge
staff in plenty of time (especially given that Dodge participates in the court’s
prisoner e-filing program).
The “good cause” standard for extending the time to file a notice of
appeal applies “in situations where there is no fault—excusable or otherwise.”
Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012) (citing Parke-Chapley
Const. Co. v. Cherrington, 865 F.2d 907, 910 (7th Cir. 1989)). The Seventh
Circuit has suggested that the “good cause” standard is more lenient than the
“excusable neglect” standard. Broyles v. Roeckeman,Case No. 12-C-7702, 2013
WL 2467710 at *2 (N.D. Ill. June 7, 2013) (citing Sherman, 865 F.2d at 425).
The court finds that the plaintiff has established good cause for his
untimely notice of appeal. The plaintiff has demonstrated that he gave his
notice of appeal to the staff at Dodge in plenty of time for the staff to e-file the
notice ahead of the June 7, 2018 deadline. He also has established that he did
not find out that the notice hadn’t been filed until four days after the appeal
deadline had expired, and that as soon as he found out, he took action. The
circumstances were out of his control. The court will grant his motion, and
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under Fed. R. App. P. 4(a)(5)(C), will extend the deadline for filing the notice
nunc pro tunc to June 14, 2018. This means that the plaintiff’s notice of appeal
was timely filed.
The court GRANTS the plaintiff’s motion for extension of time to file
notice of appeal. Dkt. No. 18.
The court GRANTS the plaintiff’s motion for extension of time. Dkt. No.
28.
The court DEEMS the plaintiff’s notice of appeal, received by the court on
June 14, 2018, timely filed.
Dated in Milwaukee, Wisconsin this 25th day of October 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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