United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
Kairi Wayne Webster filed this 42 U.S.C. § 1983 case
pro se on October 27, 2016. (ECF No. 1). Currently
before the Court is Plaintiff's Motion to File an Appeal
Out of Time. (ECF No. 20). Pursuant to the provisions of 28
U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, United States District Judge, referred this Motion to
the undersigned for a Report and Recommendation. (ECF No.
filed this lawsuit on October 27, 2016. (ECF No. 1).
Plaintiff alleged his constitutional rights were violated as
a practicing Muslim at the Miller County Correctional
Facility when he was “receiving/getting pork foods and
getting denyed Ramandan fast which is a part of my religion
beliefs”. (ECF No. 1). Plaintiff also alleged he
“was not getting medication to me in time/early in
order for me to do Ramandan”. Id. Plaintiff
sued the defendants Sheriff Ron Stovall, Warden Brazell,
Lieutenant Adams, Southern Health Partners, Nurse Harris and
Sergeant McClure in their official capacity only.
Complaint, Plaintiff referred to grievances he had previously
filed relating to his allegations but did not attach them to
his Complaint. He stated “copies should be on
file.” Under Section VI - Statement of Claim, Plaintiff
stated “please see claims from first time filing of
this case”. (ECF No. 1). Then in Section VII - Relief,
Plaintiff wrote “please see statement from first time
filing case”. Id. Plaintiff previously filed
another lawsuit in 2014 dealing with the same facts involved
in this action against the same named defendants in the
Western District of Arkansas, Texarkana Division.
See Civil Case 4:14-cv-04125, (ECF No. 1).
Plaintiff's 2014 case was dismissed with prejudice on
March 8, 2016. See Civil Case 4:14-cv-04125, (ECF
November 21, 2016, I issued a Report and Recommendation
recommending this matter be dismissed prior to service
because the current lawsuit was barred by the doctrine of
res judicata. (ECF No. 6). Plaintiff filed
objections to the Report and Recommendation on December 12,
2016. (ECF No. 11). On February 8, 2017, Judge Hickey adopted
the Report and Recommendation in toto. (ECF No. 15).
Plaintiff's claims were dismissed with prejudice and the
dismissal was counted as a strike for purposes of 28 U.S.C.
§ 1915(g). Id. That same day, the Clerk sent
Plaintiff a copy of the order of dismissal along with a
letter outlining the procedures for appealing the Court's
decision. See Docket Annotation of Mailing entered
February 8, 2017. The letter informed Plaintiff he was
required to file a notice of appeal and either pay the
$505.00 filing and docketing fees or apply to appeal in
forma paueris (“IFP”).
February 27, 2017, Plaintiff timely filed a Motion for Leave
to Appeal IFP. (ECF No. 16). I granted the motion on March 2,
2017 and directed the Clerk to begin collecting the filing
fee from Plaintiff's prison account. (ECF No. 17).
However, Plaintiff never filed a notice of appeal. On August
14, 2018, eighteen months after this case was dismissed,
Plaintiff filed the instant motion to appeal out of time. He
states “I…have very little under standing on
filing motion on time as well as on how to file my motion for
this case please Reopen my case because my Rights were
Violated”. (ECF No. 20).
Rule of Appellate Procedure 4(a)(1)(A) requires that a notice
of appeal in a civil case must be filed within 30 days of the
entry of judgment. “The requirement of a timely notice
of appeal is mandatory and jurisdictional.” Dieser
v. Cont'l Cas. Co., 440 F.3d 920, 923
(8th Cir. 2006). A district court may extend the
time to file a notice of appeal if a party moves for an
extension of time and shows excusable neglect or good cause,
provided that the party moves for the extension of time
within 30 days of the expiration of the 30-day period set out
in Rule 4(a)(1)(A). Fed. R. App. P. 4(a)(5)(A)(ii). An
untimely notice of appeal cannot serve as a motion for
extension of time to file an appeal. Burgs v. Johnson
County, 79 F.3d 701, 702 (8th Cir. 1996);
Dancer v. Haltom, No. 4:10-CV-4118, 2011 WL 2143029,
at *1 (W.D. Ark. May 2, 2011).
the Court entered a final order dismissing this case on
February 8, 2017. Plaintiff was giving instructions for
perfecting his appeal by the Clerk on the day the Order was
entered dismissing this case. Plaintiff's request to
appeal IFP was granted. However, Plaintiff never filed a
notice of appeal and instead filed a Motion for Leave to
Appeal Out of Time more than 18 months after his case was
dismissed. Therefore, Plaintiff's appeal is untimely.
Rule of Appellate Procedure 4(a)(6)(A) allows a district
court to reopen the time to file an appeal for a period of 14
days after the date when its order to reopen is entered, but
only if all the following conditions are satisfied: (A) the
court finds that the moving party did not receive notice
under Federal Rule of Civil Procedure 77(d) of the entry of
the judgment or order sought to be appealed within 21 days
after entry; (B) the motion is filed within 180 days after
the judgment or order is entered or within 14 days after the
moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier; and (C)
the court finds that no party would be prejudiced.
has not alleged that he did not receive notice from the Court
that his case had been dismissed. Instead, the docket sheet
reveals the Clerk mailed Plaintiff a copy of the order of
dismissal, an application to appeal IFP, and a letter
outlining the procedures for appeal on February 8, 2017. The
correspondence was sent to Plaintiff's address of record
and was not returned as undeliverable. Plaintiff filed his
application to proceed IFP on appeal on February 27, 2017,
but never filed a notice of appeal. Eighteen months after his
case was dismissed Plaintiff filed his Motion for Leave to
File Appeal Out of Time. This is well beyond the 180 day
deadline set forth in Federal Rule of Appellate Procedure
4(a)(6)(A). Accordingly, I recommend Plaintiff's motion
foregoing reasons, I recommend Plaintiff's Motion for
Leave to Appeal Out of Time (ECF No. 20) be
DENIED. I also recommend that the Court
direct the Clerk to refund to Plaintiff all funds that have
been withdrawn from Plaintiff's ...