Moorer v. Griffin, 77-3580
| Decision Date | 06 April 1978 |
| Docket Number | No. 77-3580,77-3580 |
| Citation | 575 F.2d 87 |
| Parties | Price MOORER, Plaintiff-Appellant, v. Timothy GRIFFIN et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Price Moorer, Robert B. Newman, The Legal Aid Society of Cinti, Cincinnati, Ohio, for plaintiff-appellant.
Arthur M. Ney, Jr., Asst. Hamilton County Pros., Cincinnati, Ohio, for defendants-appellees.
Before EDWARDS, KEITH and MERRITT, Circuit Judges.
Appellees have moved to dismiss this appeal on the ground that appellant failed to file his notice of appeal within thirty days of the entry of the judgment or order appealed from, as required by Rule 4(a), Federal Rules of Appellate Procedure. The Court will deny this motion and remand this action to the district court for further proceedings.
On August 23, 1977, the clerk of the district court entered a judgment which indicated that this civil rights action had been dismissed for failure to prosecute when the appellant did not appear in court for trial on August 22, 1977. Appellant was incarcerated in the Ohio Correctional Institution at London, Ohio, and had been proceeding pro se and in forma pauperis in the district court. On September 9, 1977, the district judge entered a Judgment Order and Entry which amplified upon, but did not change or amend, the earlier Judgment which had been signed by the deputy clerk.
Appellant sent a letter dated September 20, 1977, to the district court with a notice of appeal from the dismissal of his action. This notice was returned to him with a notation on his letter by the deputy clerk that before he could file a notice of appeal he first had to file a Motion for certification of probable cause. This notice of appeal was not docketed, nor was the deputy clerk's note dated. We are therefore unable to determine if this notice was received by the district court within the time limits prescribed by Rule 4(a).
Appellant subsequently mailed a second notice of appeal, together with a Motion for a certificate of probable cause, to the court with a letter of transmittal dated September 30, 1977. These pleadings were docketed by the district court on October 4, 1977. The Motion for a certificate of probable cause was denied on that date as being unnecessary.
Appellant argues that through no fault on his part the clerk of the court failed to file his notice of appeal within the thirty day time limit, and therefore he should not be barred by Rule 4(a) from perfecting this appeal. Alternatively, he argues that since his second notice of appeal was received within thirty days of the September 9, 1977, Judgment Order and Entry, it was timely filed.
The Judgment of August 23, 1977, indicating the district court's decision to dismiss this action for failure to prosecute, thereby denying all relief to plaintiff, was properly entered by the clerk pursuant to Rule 58(1) of the Federal Rules of Civil Procedure. It was "a separate document" within the meaning of that Rule and it set out the reasons for the dismissal. It was not modified, amended or changed by the later Judgment Order and Entry. Therefore, the time within which plaintiff could file a notice of appeal from the district court's dismissal of his action began to run from the entry of the Judgment on August 23, 1977. See United States v. Dean, 519 F.2d 624 (6th Cir. 1975); see also Bowles v. Rice, 152 F.2d 543 (6th Cir. 1946).
The time period prescribed by Rule 4(a) within which to file a notice of appeal is Browder v. Director, Illinois Dept. of Corrections, --- U.S. ----, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). The courts of appeals may not extend this time either by looking to "substantial compliance" within the Rule or otherwise. Levisa Stone Corp. v. Elkhorn Stone Co., 411 F.2d 1208 (6th Cir. 1960), cert. denied, 397 U.S. 925, 90 S.Ct. 913, 25 L.Ed.2d 104 (1970); Rule 26(b), Federal Rules of Appellate Procedure. Rule 4(a...
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