Averhart v. Arrendondo, 85-2231
| Decision Date | 24 September 1985 |
| Docket Number | No. 85-2231,85-2231 |
| Citation | 773 F.2d 919 |
| Parties | Rufus AVERHART, Plaintiff-Appellant, v. Jose ARRENDONDO, Sheriff, Captain Jandury, and Officer Woodke, Defendants- Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rufus Averhart, Michigan City, Ind., for plaintiff-appellant.
Edward H. Feldman, Lake County Atty. Office, Crown Point, Ind., for defendants-appellees.
Before CUDAHY, POSNER, and COFFEY, Circuit Judges.
On August 15 we dismissed this appeal because the notice of appeal had been filed after the 30 days allowed by federal law in a private civil case, such as this case is. See Fed.R.App.P. 4(a)(1). The appellant has asked for rehearing, and though we must deny it, the appellant's quandary moves us to invite the attention of our district judges to an unfortunate and remediable deficiency in the administration of justice by the federal courts.
The appellant is a state prisoner who brought this civil rights suit in federal district court against three correctional officers. The district judge dismissed the suit, and the plaintiff, who is not represented by counsel, filed a timely notice of appeal. He also however filed a timely motion in the district court under Rule 59(e) of the Federal Rules of Civil Procedure to reinstate the suit. This filing nullified his notice of appeal and required him, if he wanted to appeal, to file a new notice of appeal within 30 days after the district court denied his Rule 59(e) motion. Fed.R.App.P. 4(a)(4). The district court denied his Rule 59(e) motion, all right, but the appellant says he did not realize that he had to file another notice of appeal until it was too late to do so.
Rule 4(a)(4) is unequivocal and jurisdictional, Spika v. Village of Lombard, 763 F.2d 282, 284 (7th Cir.1985), so the appellant is out of luck. But we know from past experience that this particular wrinkle in the appellate rules is a trap for the unwary into which many appellants, especially those not represented by counsel (and most prisoners are not), have fallen, with dire consequences since there is no way they can reinstate their appeal if the second notice of appeal is untimely. The mistake these litigants make is thoroughly understandable. The problem is not that Rule 4(a)(4) is unclear--it is not--but that it is complicated to a lay understanding and is buried in Rule 4 of the appellate rules, which anyway are less familiar than the rules of procedure. The idea that the first notice of appeal lapses rather than merely being suspended is not intuitive, so unless a litigant has a pretty good understanding of how Rule 59 of the procedure rules interacts with Rule 4 of the appellate rules, he is apt to fall into the same hole...
To continue reading
Request your trial
-
Ball v. City of Chicago
...concerning some of the obscurer pitfalls of legal procedure. Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982); Averhart v. Arrendondo, 773 F.2d 919, 920 (7th Cir.1985); Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992). The judge is not required to impose graduated sanctions--what in labo......
-
Williams v. HISSONG
...is no less formidable test for accepting materials as admissible evidence to create a genuine issue of material fact. Averhart v. Arrendondo, 773 F.2d 919 (7th Cir.1985) (noting that the generous treatment afforded to pro se litigants does not exempt them from both the substantive and proce......
-
AA Primo Builders, LLC v. Wash.
...See Able Electric, 104 Nev. at 31-32, 752 P.2d at 220 (citing Alvis, 99 Nev. 184, 660 P.2d 980). See also Averhart v. Arrendondo, 773 F.2d 919, 920-21 (7th Cir.1985) (discussing the pre-amendment confusion with respect to Fed.R.Civ.P. 59 and Fed. R.App. P. 4(a)(4) and noting that "unless a ......
-
McCowan v. Sears, Roebuck and Co.
...dire consequences since there is no way they can reinstate their appeal if the second notice of appeal is untimely." Averhart v. Arrendondo, 773 F.2d 919, 920 (7th Cir.1985). Rule 4(a)(4) is a trap not because it is unclear, but because it is buried in Rule 4 of the Rules of Appellate Proce......