Stites, Chad v. Hamblin, Gary et al

Filing 93

ORDER granting plaintiff's 92 motion for an extension of time to file an appeal. Signed by District Judge William M. Conley on 4/27/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CHAD ANDREW STITES,

Plaintiff,

ORDER

v.

12-cv-383-wmc

SHERIFF DAVID MAHONY, et al.
Defendant.

On March 4, 2016, this court denied plaintiff Chad Stites’ motion for relief from
judgment under Fed. R. Civ. P. 60(b)(2) and (3). On April 8, 2016, Stites filed a notice
of appeal and a request for leave to proceed in forma pauperis on appeal. On April 18, the
court granted Stites’ motion for leave to proceed in forma pauperis on appeal and certified
that the appeal was not taken in bad faith. In the meantime, however, the Seventh
Circuit notified Stites that his notice of appeal was filed four days late. (7th Cir. Appeal
No. 16-1790 (Dkt. #2).)

Stites has now filed a motion in this court requesting

acceptance of his late notice of appeal, because he had mistakenly believed his notice of
appeal was timely if placed in the mail by the April 4th deadline. (Dkt. #92.)
The court may grant a motion for extension of time to file an appeal if the motion
is filed within 30 days of the expiration of the original time to file the appeal and the
party seeking the extension shows excusable neglect or good cause.

Fed. R. App. P.

4(a)(5)(A). Here, Stites argues that his untimely notice of appeal should be accepted
under the doctrine of excusable neglect. “The standard for reviewing whether neglect is
‘excusable’ is an equitable one, taking into consideration relevant circumstances,
including: (1) the danger of prejudice to the non-moving party; (2) the length of the
1

delay and its impact on judicial proceedings; (3) the reason for the delay (i.e., whether it
was within the reasonable control of the movant); and (4) whether the movant acted in
good faith.” Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012).
After consideration of these factors, especially as informed by Stites pro se status,
the court concludes that he has shown excusable neglect. Stites’ delay was only four
days, and there is no danger of prejudice to defendants. Additionally, Stites has provided
an explanation for the delay that, however mistaken, appears to have been based on a
good faith belief his appeal time included up to three additional days for mailing under
the “mailbox rule” set forth under Houston v. Lack, 487 U.S. 266 (1988). Unbeknownst
to Stites, the mailbox rule recognized in Houston applies only to prisoners. See also Fed.
R. App. P. 25(a)(1)(C) (paper is timely if deposited in institution’s internal mailing
system on or before last day of filing).
Although Stites was incarcerated at the time he filed this lawsuit, he was no longer
incarcerated at the time of his appeal, and he could no longer take advantage of the
mailbox rule. The court is satisfied that Stites’ lack of recognition of this nuance in the
mailbox rule was not the result of any bad faith on his behalf. Accordingly, the court
concludes that the Stites’ deadline for filing his notice of appeal should be extended.

2

ORDER
IT IS ORDERED that plaintiff Chad Stites’s motion for an extension of time to
file an appeal (dkt. #92) is GRANTED.
Entered this 27th day of April, 2016.
BY THE COURT:
/s/
_________________________________
WILLIAM M. CONLEY
District Judge

3