Filed: Aug. 21, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 12, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-61063 USDC No. 4:00-CV-315-P-D EZELL WASH; ET. AL, Plaintiffs, EZELL WASH; PORTER SHORTER; KENNETH DENNIS; DESMOND EARL PHILLIPS; BOBBY CALDWELL; GARY MOORE; JIMMY POWELL; CHRIS BOYD; ROBERT PRICE; RUDY ROMERO; GLENDALE SONES; DAVID MCGEE; RICHARD SIMS, JR; JAMES REED Plaintiffs-Appellants, versus ROBERT JOHNSON, Commissioner; JAM
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 12, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-61063 USDC No. 4:00-CV-315-P-D EZELL WASH; ET. AL, Plaintiffs, EZELL WASH; PORTER SHORTER; KENNETH DENNIS; DESMOND EARL PHILLIPS; BOBBY CALDWELL; GARY MOORE; JIMMY POWELL; CHRIS BOYD; ROBERT PRICE; RUDY ROMERO; GLENDALE SONES; DAVID MCGEE; RICHARD SIMS, JR; JAMES REED Plaintiffs-Appellants, versus ROBERT JOHNSON, Commissioner; JAME..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 12, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-61063
USDC No. 4:00-CV-315-P-D
EZELL WASH; ET. AL,
Plaintiffs,
EZELL WASH; PORTER SHORTER; KENNETH DENNIS; DESMOND EARL
PHILLIPS; BOBBY CALDWELL; GARY MOORE; JIMMY POWELL; CHRIS
BOYD; ROBERT PRICE; RUDY ROMERO; GLENDALE SONES; DAVID MCGEE;
RICHARD SIMS, JR; JAMES REED
Plaintiffs-Appellants,
versus
ROBERT JOHNSON, Commissioner; JAMES ANDERSON;
WALTER BOOKER; W. L. HOLMAN; ROBERT ARMSTRONG;
GENE CROCKER; EARL JACKSON; JESSIE STREETER;
CHRISTOPHER EPPS; LARRY KEYS; PAMELY LEE;
CHARLES THOMAS; GLENN ADAMS; WILLIE WALKER; CASE
MANAGER JACKSON; SAM WEBB; JACQILYN MAXWELL;
MAUD IRBY; JOE CONNERS; FRANK GRAMMAR; LARRY
HARDY; JOHN DOE(S), Liability Surities/Bonding
Companies of All Defendants,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
BY THE COURT:
Twenty-four state prisoners filed a pro se civil rights action
contesting the conditions of their confinement. The district court
ultimately dismissed plaintiffs’ complaint, and a notice of appeal
was timely filed, purportedly on behalf of all plaintiffs, but
signed only by plaintiff Desmond Phillips.
The clerk of this court advised Phillips that the appeal was
proceeding as to Phillips only because his was the only signature
on the notice. The non-signing appellants were sent a copy of this
letter. Plaintiff Garry Moore subsequently requested that the
appeal be reinstated as to all of the appellants. He argued that,
under Becker v. Montgomery, 532 U.S. 757 (2001), the failure to
sign a notice of appeal was a nonjurisdictional defect that could
be cured by correcting the omission. The clerk’s office informed
Moore that it was taking no action with respect to his request and
directed his attention to this court’s opinion in Mikeska v.
Collins,
928 F.2d 126 (5th Cir. 1991), holding that in cases
involving multiple pro se appellants, in which the notice of appeal
was signed by less than all the appellants, each non-signing
appellant must file a notice of appeal within the time allowed by
FED. R. APP. P. 4(a) or the appeals of the non-signing appellants
should be dismissed. Moore responded that the appeals of the non-
signing appellants could not be dismissed under Mikeska until the
court first inquired whether those parties had an intent to appeal
and because, under Mikeska, the defect in the notice of appeal
could be cured by the signatures of the non-signing parties. The
clerk’s office responded that inquiries into the non-signing
parties’ intent to appeal would have been moot because, by the time
2
the notice of appeal was docketed in this court, the time to appeal
under FED. R. APP. P. 4(a) had expired.
Moore subsequently filed a motion for reconsideration of the
clerk’s refusal to reinstate the appeal as to all appellants. The
clerk’s office then notified the non-signing appellants that they
had 30 days to submit a signed notice of appeal and that the issue
of whether their appeals would be reinstated would be submitted to
this court. Signed notices of appeal were received by all but two
of the appellants.
A timely notice of appeal is a prerequisite to the exercise of
jurisdiction by this court. Dison v. Whitley, 20 F.3d 185, 186
(5th Cir. 1994). FED. R. APP. P. 4(a)(1) requires that the notice
of appeal in a civil action be filed within 30 days of entry of the
judgment or order from which appeal is taken. Any other party who
wishes to appeal has 14 days after the initial notice was filed to
pursue an appeal. FED. R. APP. P. 4(a)(3); see also FED. R. APP. P.
4(c)(2).
Notices of appeal are subject to the requirements of FED. R.
CIV. P. 11(a). See Gonzales v. Wyatt, 157 F.3d 1016, 1021-22 (5th
Cir. 1998). Relevant provisions of Rule 11 provide:
(a) Signature. Every pleading, written motion, and other paper
shall be signed by at least one attorney of record in the
attorney’s individual name, or, if the party is not
represented by an attorney, shall be signed by the
party. . . . An unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being
called to the attention of the attorney or party.
In Mikeska, we held that to be valid as to a specific
3
appellant, a multi-party pro se notice of appeal must be signed by
that appellant. Mikeska, 928 F.2d at 126. We further instructed
that “when a timely filed multi-party pro se notice of appeal that
fails to bear what purports to be the signature of one or more of
the persons listed as appellants, the clerk of this court shall,
pursuant to FED. R. APP. P. 4(a)(3), notify the non-signing
appellant[s] of the right to file a notice of appeal ‘within 14
days after the date on which the first notice of appeal was filed,
or within the time otherwise prescribed by . . . Rule 4(a),
whichever period last expires.’”
Id. “The written notification of
a party’s intent to appeal, signed by the subject appellant shall
be deemed timely filed if received by the district clerk or our
clerk of court within the time allowed by FED. R. APP. P[.]
4(a)(3).”
Id. In Carter v. Stalder,
60 F.3d 238, 239 (5th Cir.
1995), the clerk’s office did not give the non-signing appellants
the notice required by Mikeska because it was unsure whether the
notice of appeal was timely. We concluded that, after the 14-day
period under Rule 4(a)(3) had expired, the non-signing appellant
could not appeal, “despite the lack of Mikeska notice.”
Id.
Our holdings in Mikeska and Carter, however, are not able to
be reconciled with the Supreme Court’s Becker decision. In Becker,
a state prisoner instituted a pro se civil rights action contesting
conditions of
confinement. 532 U.S. at 760. Becker’s timely, pro
se notice of appeal contained his name on a signature line, typed,
4
but not hand-signed. Id. at 761. Becker’s appeal was docketed,
and a briefing schedule was set.
Id. Some six months later, on
its own motion, the Sixth Circuit dismissed the appeal for lack of
jurisdiction because of the want of a handwritten signature on the
notice of appeal.
Id. No court officer had earlier called
Becker’s attention to the need for a signature, nor had Becker been
afforded an opportunity to cure the defect.
Id. Becker filed an
unsuccessful motion for reconsideration, to which he attached a
new, signed notice of appeal.
Id. The Supreme Court granted
certiorari to address the question whether Becker’s failure to sign
his timely-filed notice of appeal required the Court of Appeal to
dismiss his appeal.
Id. at 762.
The Court stated: “As plainly as Civil Rule 11(a) requires a
signature on filed papers, [] so the rule goes on to provide in its
final sentence that ‘omission of the signature’ may be ‘corrected
promptly after being called to the attention of the attorney or
party.’” Becker, 532 U.S. at 764. “‘Correction can be made,’ the
Rules Advisory Committee noted, ‘by signing the paper on file or by
submitting a duplicate that contains the signature.’”
Id.
(citation omitted). The Supreme Court further concluded that Rule
11's signature requirement was nonjurisdictional.
Id. at 766.
Accordingly, in Becker, the Court reversed the dismissal of a pro
se prisoner’s appeal for failure to comply with Rule 11's signature
requirement. The Court stated that the “[petitioner] proffered a
5
correction of the defect in his notice in the manner Rule 11(a)
permits--he attempted to submit a duplicate containing his
signature. . . and therefore should not have suffered dismissal
. . . for nonobservance of the Rule.” Id. at 765.
In Casanova v. Dubois, 289 F.3d 142, 145 (1st Cir. 2002),
several inmates filed a civil rights complaint which was dismissed
by the district court. One inmate, Casanova, filed a timely notice
of appeal, purportedly on behalf of all of the appellants; however,
the notice contained only his signature.
Id. at 146. Eighteen
months after the notice of appeal had been filed, the appellees
argued that the appeal should be dismissed as to the non-signing
appellants.
Id. at 145-46. The First Circuit noted that it was
impossible to tell if the non-signing appellants had intended to
appeal during the brief window of opportunity provided by the
federal rules for filing an appeal.
Id. at 146. The First Circuit
could surmise that they intended to appeal, however, because when
the prisoners were given the opportunity to signify their desire to
join in the appeal by providing signatures for the notice of
appeal, they did so within the time frame provided by the appellate
court.
Id. The First Circuit therefore concluded that, based upon
Becker, the dismissal of appeal as to the inmates who did not
originally sign the notice of appeal was unwarranted.
Id.
The Supreme Court’s holding in Becker, that the signature
requirement on a notice of appeal is not jurisdictional and may be
cured if properly supplied once omission is called to a party’s
6
attention, effectively overrules our holdings in Mikeska and Carter
that the signature requirement can be cured only within the time
for filing a notice of appeal under FED. R. APP. P. 4(a).
Accordingly, based upon Becker and in agreement with our sister
circuit’s reasoning in Casanova, we grant Moore’s motions to
reinstate the appeal and to reconsider the clerk’s refusal to do
so, and we reinstate the appeal as to those appellants who were
named in the original notice of appeal and who have now submitted
signed copies of the notice of appeal. The appeals of the two
appellants, Edgar Monroe and Donnie Singleton, who still have not
signed the notice of appeal, are not reinstated, however.
MOTIONS TO REINSTATE APPEAL AND TO RECONSIDER GRANTED; APPEAL
REINSTATED AS TO ALL APPELLANTS EXCEPT EDGAR MONROE AND DONNIE
SINGLETON.
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