Filed: Feb. 14, 2012
Latest Update: Feb. 14, 2012
Summary: ORDER MARK E. FULLER, District Judge. This cause comes before the Court on two motions, both filed by the plaintiff, Sanjanetta Barnes. The first is Barnes's Motion for Leave to File Motion to Reconsider Beyond Deadline (Doc. # 31). This motion cryptically informs the Court that Barnes's counsel failed to file a motion by a Court-imposed deadline, "[d]ue to a combination of limited technological access and scheduling conflicts." The second is the belated response itself, her Motion to Reconsid
Summary: ORDER MARK E. FULLER, District Judge. This cause comes before the Court on two motions, both filed by the plaintiff, Sanjanetta Barnes. The first is Barnes's Motion for Leave to File Motion to Reconsider Beyond Deadline (Doc. # 31). This motion cryptically informs the Court that Barnes's counsel failed to file a motion by a Court-imposed deadline, "[d]ue to a combination of limited technological access and scheduling conflicts." The second is the belated response itself, her Motion to Reconside..
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ORDER
MARK E. FULLER, District Judge.
This cause comes before the Court on two motions, both filed by the plaintiff, Sanjanetta Barnes. The first is Barnes's Motion for Leave to File Motion to Reconsider Beyond Deadline (Doc. # 31). This motion cryptically informs the Court that Barnes's counsel failed to file a motion by a Court-imposed deadline, "[d]ue to a combination of limited technological access and scheduling conflicts." The second is the belated response itself, her Motion to Reconsider (Doc. # 30). Both motions are due to be denied for the reasons discussed below, and her complaint is due to be dismissed without prejudice.
On January 31, 2012, this Court issued a Memorandum Opinion and Order (Doc. # 29) granting defendant Nick McElveen's motion to dismiss. In the opinion, the Court explained why it granted McElveen's motion: Barnes had failed to allege that she satisfied the favorable termination rule set forth in Heck v. Humphrey, 517 U.S. 477 (1994). Because her failure to comply with Heck seemingly barred her claims against the other defendants too, the Court ordered Barnes to show cause, on or before February 10, 2012, as to why the claims against the remaining defendants should not be dismissed as well.
Barnes, or more accurately, her counsel, did not respond until February 12—two days after the deadline. Even so, the Court will address the merits of her response. Barnes contends that Heck's favorable termination rule only applies when the plaintiff asserts a claim for malicious prosecution. To support this assertion, she cites to Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004), a case where the Eleventh Circuit allowed a plaintiff to proceed with claims for filing a false report and submitting a recklessly false arrest warrant application. Barnes further notes that she has brought claims similar to those brought by the Kingsland plaintiff.
These arguments are unpersuasive. In Kingsland, the state prosecutor dropped the underlying charges, 382 F.3d at 1225, meaning that the plaintiff received a favorable termination in the state court criminal case against her. Thus Heck did not apply. And contrary to Barnes's contentions, no court has suggested that Heck only applies to malicious prosecution claims. Rather, federal courts agree that the favorable termination rule applies when a § 1983 action would impugn an unaltered state court conviction.
As the Court noted in its Memorandum Opinion, Barnes did not allege that she had her state court conviction reversed or dismissed or otherwise disposed of in her favor. Nor did she argue that allowing her claims to go forward would in no way impugn the validity of that conviction—indeed, plaintiff's counsel ignored this question altogether. Heck, therefore, bars Barnes's claims not only against McElveen but also against the remaining defendants.
Accordingly, it is hereby ORDERED that:
1. Barnes's Motion to Reconsider (Doc. # 30) is DENIED;
2. Barnes's Motion for Leave to File Motion to Reconsider Beyond Deadline (Doc. # 31) is DENIED AS MOOT; and
3. The claims against the remaining defendants are DISMISSED without prejudice.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
Rev.: 4/04
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
