United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
matter is before the Court on Plaintiff's Motion for
Extension of Time to File a Notice of Appeal (Doc. 25), which
was filed on February 6, 2018. The motion does not explain
why Plaintiff may need an extension; instead, it simply asks
for a thirty-day extension of time “to respond to the
above-captioned Lashbrook [and] John Baldwin.” (Doc.
25, p. 1). He goes on to note that he seeks “this
extension to prepare [his] notice of appeal.”
civil rights action was dismissed for failure to state a
claim upon which relief may be granted on January 8, 2018
(see Doc. 23), pursuant to 28 U.S.C. § 1915A.
Judgment was entered the same day. In the Dismissal Order
(Doc. 23), the Court notified Plaintiff that he would have 30
days within which to file an appeal. That 30-day deadline
falls on February 7, 2018. See Fed. R. App. P.
Plaintiff's request for an extension of time to file a
notice of appeal in this case may appear on its face to be a
simple matter, a District Judge may only grant an extension
of time in limited circumstances. The 30-day time limit for
the filing of a notice of appeal is a jurisdictional
requirement. Bowles v. Russell, 551 U.S. 205, 209-10
(2007). Federal Rule of Appellate Procedure 4(a)(5)(A)
authorizes a District Judge to extend the time to file a
notice of appeal only upon a showing of “excusable
neglect or good cause.” “Excusable neglect”
most often comes into play when a party has failed to file
anything within the 30-day time limit. See Sherman v.
Quinn, 668 F.3d 421, 425-26 (7th Cir. 2012) (mere
ignorance of the rules will not support an extension);
Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005)
(District Court Judges “do not have ‘carte
blanche' authority to allow untimely appeals”).
Plaintiff is aware of the 30-day deadline, thus
“excusable neglect” is not a factor here. His
motion clearly indicates that he desires to pursue an appeal,
and the fact that he was able to file his motion before the
expiration of the 30 days indicates that he could also have
filed his notice of appeal within that time frame. Under
these circumstances, Plaintiff has not shown good cause to
warrant an extension of time.
Court must look beyond Plaintiff's request for more time,
however, in order to determine whether Plaintiff's motion
should itself be sufficient to serve as a timely notice of
appeal. A Court should liberally construe Federal Rule of
Appellate Procedure 3(c) to accept a document as a notice of
appeal if the tendered document is its “functional
equivalent, ” particularly where the filing comes from
a pro se party and provides adequate notice to other
parties. See Smith v. Barry, 502 U.S. 244, 248
(1992). The purpose of the notice of appeal requirement
“is to ensure that the filing provides sufficient
notice to other parties and the courts. Thus, the notice
afforded by a document ... determines the document's
sufficiency as a notice of appeal.” Id.
(citation omitted). The Seventh Circuit has held that a
motion for extension of time may suffice as a notice of
appeal. Listenbee v. City of Milwaukee, 976 F.2d
348, 350-51 (7th Cir.1992). See also Smith v. Grams,
565 F.3d 1037, 1041-42 (7th Cir. 2009) (document filed with
district court served as notice of appeal despite pro
se filer's erroneous request to appeal to Supreme
Court); Scherer v. Kelley, 584 F.2d 170, 174 (7th
Cir. 1978) (pro se notices of appeal “are
entitled to a liberal construction where the intent of the
appellant is apparent and the adverse party is not
case was dismissed upon threshold review, thus service was
never ordered on any of the defendants. Plaintiff's
motion for extension of time gives sufficient notice of his
intent to pursue an appeal, and it may be construed as a
notice of appeal without any prejudice to any defendant.
IS THEREFORE ORDERED that Plaintiff's Motion for
Extension of Time (Doc. 25) is CONSTRUED as
a NOTICE OF APPEAL from the Order and
Judgment dismissing this action. The Clerk shall terminate
the motion at Doc. 25 and take all necessary steps to
transmit the record in this case to the United States Court
of Appeals for the Seventh Circuit.
Plaintiff is unable to pay the $505.00 appellate filing and
docketing fee, he shall submit a motion for leave to appeal
in forma pauperis (“IFP”) to this Court,
by the deadline that will be set by the Seventh Circuit.
Should Plaintiff desire to withdraw his appeal, he must file
a motion in the United States Court of Appeals for the
Seventh Circuit. Fed. R. App. P. 42(b).
IS SO ORDERED.
 Federal Rule of Appellate Procedure
3(c) dictates that a notice of appeal must “(A) specify
the party or parties taking the appeal ... (B) designate the
judgment, order, or part thereof being appealed ... and (C)
name the court to which the appeal is taken” and
directs that “[a]n appeal must not be dismissed ...