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May v. Mahone

United States Court of Appeals, Seventh Circuit

November 28, 2017

Floyd May, Plaintiff-Appellant,
Sylvia Mahone, et al., Defendants-Appellees.

          Submitted October 18, 2017 [*]

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:11-cv-07503 - John W. Darrah, Judge.

          Before Flaum, Ripple, and Rovner, Circuit Judges.

          Per Curiam.

         Floyd 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.



         The 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.

         After 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, [1] (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.

         The 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.

         The 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.

         After 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.



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