Simmons v. Ghent, 91-3117
| Decision Date | 10 August 1992 |
| Docket Number | No. 91-3117,91-3117 |
| Citation | 970 F.2d 392 |
| Parties | George E. SIMMONS, Plaintiff-Appellant, v. John S. GHENT, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George E. Simmons, pro se.
Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.
Before CUDAHY and POSNER, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
We issued a rule to show cause why the appeal should not be dismissed as premature. The district court had entered a minute order dismissing this prisoner's civil rights case as frivolous, before he had served his complaint on any of the defendants. No separate judgment order was entered as required by Fed.R.Civ.P. 58, but, the court's intention to terminate the litigation being clear, the minute order was an appealable judgment under Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam); and the appellant duly filed his notice of appeal within the thirty days allowed for such a filing. However, within ten days after the entry of the minute order, the appellant had filed a motion to reconsider. The motion was not actually filed with the district court until the eleventh business day after the entry of the minute order. But in pro se prisoner cases a notice of appeal is deemed timely if lodged with the prison authorities, for forwarding to the district court, within the time permitted for an appeal. Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). We assume that the same rule applies to other filings, including a Rule 59(e) motion.
A timely Rule 59(e) motion suspends the time for appealing, and a notice of appeal filed while such a motion is pending is premature and a nullity. Fed.R.App.P. 4(a)(4). Any motion seeking to alter or amend the judgment, however the motion be labeled, is deemed a Rule 59(e) motion, provided it is served within ten days. Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986). The only rub is that the appellant's motion, though filed within ten days, was not served within ten days. In fact it was never served. So there was no timely Rule 59(e) motion; the notice of appeal filed before the motion was decided was therefore not premature; and since the notice was timely, the appeal will not be dismissed.
All this would hardly be worth saying were it not for a brace of cases in other circuits which hold that where the appellant's suit is dismissed as frivolous before his complaint has been served on any defendant, the requirement of serving a Rule 59(e) motion is dispensed with; the motion is timely if filed within the prescribed period, and if so filed it knocks out any notice of appeal filed before the motion is acted on. Craig v. Lynaugh, 846 F.2d 11 (5th Cir.1988); Welch v. Folsom, 925 F.2d 666, 669 (3d Cir.1991). Craig expressed concern lest defendants in prisoner cases be overwhelmed with paper if the Rule 59(e) motion must be served in order to be effective. This is unpersuasive; service imposes no obligation to respond. Welch, which reached a similar result without citing Craig, rested decision on two other grounds: that since the district court had dismissed the complaint without the presence of the defendant,...
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