Submitted October 18, 2017 [*]
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:11-cv-07503 -
John W. Darrah, Judge.
Flaum, Ripple, and Rovner, Circuit Judges.
May, a pro se appellant and an Illinois prisoner, claims in
this suit under 42 U.S.C. § 1983 that two prison
physicians failed to provide constitutionally adequate
medical care while treating his non-Hodgkins lymphoma. The
district court entered summary judgment for the defendants,
and Mr. May has appealed. Before addressing the merits, we
must decide whether we have jurisdiction. That question turns
on whether Mr. May filed a timely notice of appeal. Because
we cannot determine this issue on the existing record, we
remand the case to the district court for the limited purpose
of determining if and when Mr. May tendered a notice of
appeal to prison authorities.
district court issued its order granting summary judgment on
February 11, 2015, but a separate judgment was never entered
on the district court's docket. See Fed. R. Civ.
P. 58(a), 79. Because of that omission, Mr. May had 180 days
after February 11 to file a notice of appeal-150 days until
the judgment was deemed entered plus 30 more days to file a
timely appeal. See Fed. R. Crv. P. 58(c)(2)(B); Fed.
R. App. P. 4(a)(1)(A), 4(a)(7)(A), 26(a)(1). Thus, Mr. May
had to file his notice of appeal by Monday, August 10, 2015.
February 11, however, the first document from Mr. May that
appears on the district court's docket is
"Plaintiff's Request for Status, " which Mr.
May mailed to the court on September 5, 2015. In that
submission, Mr. May asked for an update about his
"appeal" and averred that he had mailed a notice of
appeal on February 18, 2015. He attached four documents: (1)
a copy of the purported notice of appeal, (2) a copy of his
inmate Legal Mail Card,  (3) a request that the clerk of the
district court transmit the record on appeal to this court,
and (4) an application to proceed in forma pauperis. Except
for the Legal Mail Card, which does not have a printout date,
all of the documents are dated February 18, 2015. Over a
month later, on October 20, 2015, the district court docketed
a second notice of appeal from Mr. May, this one dated
February 20, 2015.
clerk of the district court forwarded to us only the notice
of appeal that was docketed on October 20. We questioned the
timeliness of that notice and directed Mr. May to explain why
his appeal should not be dismissed for lack of appellate
jurisdiction. Mr. May responded by averring that on February
18 he gave his notice of appeal to prison authorities in a
properly addressed envelope with postage paid. Mr. May argued
that the prison mailbox rule applies to him; according to
that rule, when an inmate presents a notice of appeal to
prison staff for mailing, it is deemed filed if the inmate
has complied with the requirements of Federal Rule of
Appellate Procedure 4(c)(1). See generally Houston v.
Lack, 487 U.S. 266, 275-76 (1988) (recognizing prison
mailbox rule); Hurlow v. United States, 726 F.3d
958, 962 (7th Cir. 2013) (discussing mechanics of rule). Mr.
May resubmitted the copy of his Legal Mail Card, which does
show that unspecified legal mail was sent to the district
court in Chicago on February 19, 2015.
defendants countered that, even if the copy of the mail card
is legitimate, there is nothing on that card identifying the
particular item of mail Mr. May submitted to the mailroom or
its content. The defendants pointed out that Mr. May was
litigating at least four cases in the Northern District of
Illinois during February 2015 and that, in one of those
cases, he had filed a document which the clerk's office
docketed on February 23, 2015. Mr. May's evidence, the
defendants argued, is too little to substantiate his
assertion that he gave prison authorities a notice of appeal
in this case on February 18, 2015.
receiving the parties' submissions, we ordered them to
address further the jurisdictional question, in particular
the question of whether Mr. May had complied with the prison
mailbox rule. Mr. May simply repeats what he said previously.
The defendants, on the other hand, reassert their earlier
position but also highlight that Mr. May has relied on
inconsistent versions of his purported notice of appeal, one
dated February 18, 2015, and the other, February 20, 2015.
The defendants add that the only entry on the Legal Mail Card
around that date for a document sent to the district court is
on Thursday, February 19, which, the defendants say,
undermines Mr. May's assertion that he delivered a notice
of appeal to prison authorities on either February 18 or
February 20, 2015. They observe also that the notation
"(2)" follows some dates on the card, suggesting
that prison employees indicate instances when multiple pieces
of mail are sent. There is not a "(2)" on Mr.
May's Legal Mail Card for February 19, raising the
inference that the only item he submitted to prison staff
that day is the document that was received in the mail and
docketed by the clerk of the district court in another of his
cases on February 23, 2015.