Pearson v. Gatto

• Decision Date: 23 May 1991
• Docket Number: Nos. 90-2376,90-2493,s. 90-2376
• Citation: 933 F.2d 521
• Parties: William PEARSON, Plaintiff-Appellant, v. Michael A. GATTO, Thomas McWilliams, Major Schomig, and Michael O'Leary, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 521

933 F.2d 521

William PEARSON, Plaintiff-Appellant v. Michael A. GATTO, Thomas McWilliams, Major Schomig, and Michael

O'Leary, Defendants-Appellees.

Nos. 90-2376, 90-2493.

United States Court of Appeals Seventh Circuit.

Argued April 23, 1991.

Decided May 23, 1991.

Kenneth N. Flaxman, Chicago, Ill., for plaintiff.

Neil F. Hartigan, Atty. Gen., Richard M. Carbonara, Asst. Atty. Gen., and Daniel N. Malato, Asst. Atty. Gen., Chicago, Ill., for defendants.

Before CUMMINGS, RIPPLE and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

William Pearson appeals the dismissal of his first amended complaint in which he sought to recover damages under 42 U.S.C. Sec. 1983. The district court determined that his suit was time-barred under Illinois' two-year statute of limitations and that Pearson could not claim a disability entitling him to tolling of the statute.

I.

Pearson, proceeding pro se, originally filed suit on November 13, 1985, alleging that defendant Major Schomig fired him from his prison job and, in a conspiracy with various Department of Corrections personnel, refused to follow the Inquiry Board's conclusion that he should be reinstated. Pearson alleged that defendants refused to reinstate him because he was black and because he had refused to join a gang as a condition of reemployment. According to Pearson, all of the employees of his work group were members of a gang, and Schomig refused to reinstate Pearson unless he also joined the gang. Pearson claimed that the defendants' actions violated his rights to due process and equal protection. The defendants moved for dismissal on the grounds that Pearson did not have a liberty interest in his job and failed to state a claim for a violation of his equal protection rights. The district court, in an order dated April 26, 1988, dismissed Pearson's due process claim, but ordered the defendants to answer Pearson's equal protection claim.

Upon receiving a copy of the judge's memorandum opinion, Pearson wrote the judge a letter, which reads in pertinent part:

I recived your memorandum opinion 4-29-88, and I was surprise to see that my complaint hadn't been amended. On June 10, 1986, I was attack during count time while in my bed with the door lock. The only peoples out was the officers and some how my door open and four to five inmate roll on me in my cell with knives and steel pipes. The only reason I'm still alive today is because I fought hard for my life while hollowing for help, but no one came....

All this tacken place on June 10, and June 11,.... I recived close to forty stitches in my head alone and I was in great pain....

... L.T. Price, got me move to control seg, pending out come of the investigation. Judge, Major Schomig is a drug runner and a killer, that's how he control the gangs in Stateville. I want you to understand that I was attack because of this suit, and that if not for Lieutenant Price I would be a dead man and I can prove it in court.... I was told that I had two years to file and June 10, will be two years, and I don't know if the defendant is going to ask for an extension of time to file or not. But I'm asking for permission to amendment my complaint after the defendants answer my complaint.

... For those who try to rehabilitate in side prison wall catch hell from most of the staff and the inmate, and the staff treat you worse than the inmate. The gangs run Stateville and I can show you this, and if they want you the staff will set it up for you can be hit. I've never been to segregation in almost ten years, I've no major tickets, but I've been catching hell since 1981, because I refused to join a gang at a staff member request....

From this letter it appears that Pearson had attempted to add the retaliation allegations to his complaint at some point prior to the judge's April 26 order. The district court did not investigate why Pearson was "surprised" by the fact that the complaint was not amended, and instead simply treated Pearson's letter as a request to file an amended complaint. On June 3, the court granted the request to amend and sent a copy of Pearson's letter to the defendants. In addition, the court appointed counsel to represent Pearson and gave counsel until July 14, 1988 to file the amended complaint.

Appointed counsel did not file an amended complaint by July 14. In fact, counsel did not file the amended complaint until September 18, 1989, well over a year after he was appointed. Proceeding solely under a conspiracy theory, the amended complaint alleged that on June 10, 1986, Pearson was awakened by the sounds of a two-way radio and keys opening his cell and that he was then attacked by four inmates. The named defendants included the warden and members of the "Internal Investigation Unit." The complaint alleged that the warden referred the investigation of the attack to the Unit and that the investigators in the Unit conspired to "deprive plaintiff of the due course of justice ... by refraining from investigating plaintiff's allegations that a correctional officer had been involved in the beating." To this end, defendants purportedly omitted any reference to the radio and keys when writing reports about the incident or performing other investigative tasks. The last alleged act of the conspiracy occurred on October 22, 1986, when one of the defendants prepared a summary report of the investigation that omitted the crucial details. The result of this conspiracy, according to the complaint, was that Pearson was deprived of discovering the identity of the guard who opened his cell and was therefore unable to maintain a civil action against that guard to collect damages for his injuries.

In response, the defendants filed a motion to dismiss, presenting three grounds: (1) plaintiff's amended complaint, filed in September 1989, was barred by the two-year statute of limitations because his cause of action accrued in June 1986 (or at the latest October 1986) and he could not invoke any tolling provisions; (2) the allegations in the amended complaint did not relate back to the original complaint for purposes of the statute of limitations; and (3) plaintiff failed sufficiently to allege defendants' personal involvement in the alleged conspiracy. Plaintiff responded that the "imprisoned person" tolling provision, Ill.Rev.Stat. ch. 110, para. 13-211 (1984), was applicable to his case and that he sufficiently alleged the involvement of all of the named defendants.

The district court granted defendants' motion to dismiss, applying Illinois' two-year statute of limitations and holding that the complaint was filed too late. Illinois' tolling provision for imprisoned persons did not apply to Pearson, the court held, because this tolling provision had been repealed and Pearson failed to file his amended complaint within a reasonable time after the statute's repeal. The court issued a final judgment on May 4, 1990.

Although the notice of appeal was due no later than June 4, 1990, plaintiff's appointed counsel failed to file a timely notice and instead filed on June 12, 1990 a motion for extension of time under Fed.R.App.P. 4(a)(5). On June 20, 1990, the court held a brief hearing on the motion and allowed counsel to file the notice of appeal on June 21, 1990. The court held that counsel's involvement in numerous court-appointed cases had caused him to miss the deadline and that this was good cause for extending the deadline to file the notice of appeal. Defendants timely filed a cross-appeal from the court's decision to permit the plaintiff's notice of appeal to be filed.

II.

A.

The first issue on appeal is whether there was a timely filed notice of appeal. If not, we need proceed no further, for a timely filed notice of appeal is jurisdictional. Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 908-09 (7th Cir.1989). It is undisputed that the notice of appeal was due in this case no later than 30 days after the entry of final judgment. Under Federal Rule of Appellate Procedure 4(a)(5), the district court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the [original notice was due]." The advisory notes to Rule 4(a)(5) make clear that a request for an extension of time filed before the notice of appeal is due may be granted for good cause, but a request for extension filed after the notice is due may only be granted under the higher excusable neglect standard. Fed.R.App.P. 4(a)(5) advisory committee's notes; see also Parke-Chapley, 865 F.2d at 909-10 (citing advisory notes); Redfield v. Continental Casualty Corp., 818 F.2d 596, 601 (7th Cir.1987) (same).

We review a district court's decision to grant or deny a motion for extension of time to file a notice of appeal for abuse of discretion. Reinsurance Co. of Am. v. Administratia Asigurarilor de Stat, 808 F.2d 1249, 1251 (7th Cir.1987). In our evaluation, "wide latitude should generally be accorded a district court in determining excusable neglect," id., and we look to the record as a whole to determine whether an abuse of discretion has occurred. Redfield, 818 F.2d at 601.

Courts interpret the excusable neglect standard narrowly. Redfield, 818 F.2d at 604; Reinsurance, 808 F.2d at 1251. "Excusable neglect is limited to an occurrence of unusual circumstances in which failure to grant an extension would result in injustice, such as the failure to learn of the entry of judgment." Parke-Chapley, 865 F.2d at 911. Other grounds include " 'uncontrollable delays in the delivery of mail, unpredictable events that affect the delivery of the notice of appeal to the clerk, unpredictable events that affect the feasibility of appeal, and plausible misconstructions, but not mere ignorance, of the law or rules.' " Id. (quoting Redfield, 818 F.2d at 602). Reliance on an incorrect representation of the court regarding the proper filing deadlines has also been excused. See ...