United States District Court, E.D. Kentucky, Northern Division, Covington
OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
23, 2019, the Court dismissed Plaintiff Phillip Brewer's
Complaint (Doc. # 3) for failure to state a claim and as time
barred. (Doc. # 7). Brewer filed a Notice of Appeal ten weeks
later on August 7, 2019. (Doc. # 13). The Sixth Circuit has
since ordered a limited remand for this Court to consider
whether Brewer's June 7, 2019 “Motion for Stay of
Proceedings” (Doc. # 9) should have been construed as a
request for an extension of time to file a notice of appeal
instead of as a motion for additional time to file a motion
for reconsideration. (Doc. # 23). The Court has thoroughly
reviewed the record and, for the reasons explained below,
concludes that Brewer's prior Motion could not reasonably
have been construed as requesting additional time to appeal.
The Court therefore enters an Order to this effect so that
the Sixth Circuit may consider and reach its own conclusion
on the matter.
is an inmate in Blountstown, Florida. (Doc. # 3 at 1). In his
civil rights Complaint, Brewer contended that in 2010
Kentucky officials did not permit him to fight Florida's
extradition request before he was transferred to that state
to face burglary, assault, and kidnapping charges. (Doc. # 3
at 9); (Doc. # 3-1 at 20). Brewer did not seek damages but
only a hearing to determine if his rights had been violated.
(Doc. # 3 at 9). Brewer's Complaint set forth extensive
citations to support his legal arguments and attached
numerous exhibits to support his factual allegations. (Doc. #
3). In short, Brewer's Complaint exhibits the
characteristics of one drafted by a plaintiff with
considerable familiarity with litigation.
noted in his Complaint that he had already challenged the
propriety of his extradition in 2013 during the Florida
prosecution. (Doc. # 3 at 10); (Doc. # 3-1 at 38- 43). When
screening his Complaint, the Court reviewed the docket and
documents in that case-Florida v. Brewer, No. F09-32100B
(Fla. Cir. Ct. dismissed Feb. 22, 2019). See Miami-Dade
County Criminal Justice Online System, Harvey Ruvin, Clerk of
the Courts, Miami-Dade County, Florida,
case No. tab search F-09-032100-B) (last visited December 3,
2019). The docket shows that Brewer represented
himself for several years during those proceedings with
standby counsel. Id. On September 20, 2013, shortly
after his Florida Habeas Petition was denied, Brewer filed a
pro se Notice of Appeal, Brewer, No. F09-32100B (Doc. # 481
therein), clearly indicating his knowledge of the proper
manner by which to appeal. Brewer was found guilty in March
2014, Id. (Doc. # 645 therein) and following his
appeal his conviction was upheld in 2016, Id. (Doc.
# 717 therein). In February 2017, he filed an extensive
Motion for post-conviction relief supported by argument and
citation to pertinent authority. Id. (Doc. # 719
therein). That Motion was denied on December 5, 2017.
Id. (Doc. # 741 therein). Subsequently, on January
10, 2018, Brewer filed a pro se Notice of Appeal.
Id. (Doc. # 744 therein).
here, on December 15, 2017, after the Florida court entered
its Order denying Brewer's post-conviction Motion but
before he received it, Brewer filed an untimely Reply to the
state's Response. Id. (Doc. # 742 therein). On
January 12, 2018, the Florida court entered an Order
explaining that because Brewer's Reply was received after
entry of the Order denying the underlying Motion, the court
was treating it as a Motion for Rehearing, and denied the
construed Motion because it asserted no new grounds for
relief. Id. (Doc. # 747 therein). In response,
Brewer filed a Notice of Appeal, and the appellate court
dismissed the appeal for lack of jurisdiction. Id.
(Docs. # 748, 753 therein). After this, Brewer filed a Motion
for Rehearing, and that Motion was denied. See Brewer v.
State, No. 3D18-0524, 2019 WL 2395850 (Fla. Dist. Ct.
App. Mar. 11, 2019). This history establishes that prior to
filing his Motion in the present case, Brewer (1) knew how to
file a notice of appeal, and (2) was actually aware that
filing a motion for rehearing sought further review of the
issues presented from the court in which he filed the
filed his complaint in this Court two months later. (Doc. #
3). The Court dismissed that Complaint on May 23, 2019. (Doc.
# 7). On June 7, 2019, Brewer signed and mailed a
“Motion for Stay of Proceedings.” (Doc. # 9). In
his Motion to Stay, Brewer stated that he had just been told
that he was being transferred the next day to a different
facility for medical diagnosis or treatment, and “that
while he fully intends to file for rehearing of the courts
May 23rd 2019 decision he simply will not have the ability to
do so in a timely manner.” Id. That Motion was
received and docketed on June 13, 2019. Id. On the
same day, the Court received a notice of change of address
from Brewer. (Doc. # 10). The Court-construing Brewer's
request for a stay to seek “rehearing” as one for
additional time to seek “reconsideration”-denied
the Motion, noting that the Federal Rules of Civil Procedure
expressly deprive district courts of the authority to grant
such relief. (Doc. # 11 (citing Fed.R.Civ.P. 6(b)(2)). That
Order was sent to Brewer at the new address he provided and
was not returned as undeliverable by the United States Postal
months passed before Brewer gave notice on August 7, 2019
that he had been transferred back to the prison (Doc. # 12)
and filed a Notice of Appeal (Doc. # 13). The Sixth Circuit
promptly ordered Brewer to show cause why his appeal should
not be dismissed as untimely. Brewer v. Nagel, No.
19-5906 (6th Cir. filed Aug. 7, 2019) (Doc. # 5 therein). In
response, Brewer stated that he had not filed his notice of
appeal before August 7, 2019 because he had “the
impression that there was no deadline due to the fact that he
had filed a Motion For Stay of Proceedings prior that would
have tolled any deadline time.” Brewer, No.
19-5906 (Doc. # 6 therein at 1). In its recent Order
remanding the case, the Sixth Circuit noted that this Court
could have, but did not, construe Brewer's June 2019
Motion for more time to seek “rehearing” as a
motion for an extension of time to file his Notice of Appeal
pursuant to 28 U.S.C. § 2107(c). (Doc. # 23). The Sixth
Circuit therefore issued a limited remand for the Court to
consider, in the first instance, whether Brewer's Motion
could be construed as such. Id. at 3.
not. “Federal Rule of Appellate Procedure 4(a) and its
statutory counterpart, 28 U.S.C. § 2107, set out a
strict timetable.” Martin v. Sullivan, 876
F.3d 235, 236 (6th Cir. 2017) (citing Bowles v.
Russell, 551 U.S. 205, 214 (2007)). “[T]he timely
filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles, 551 U.S.
at 214. Brewer's August 7, 2019 Notice of Appeal was
filed well beyond the June 24, 2019 deadline established by
28 U.S.C. § 2107(a) and was hence untimely.
would-be appellant is not without options to seek additional
time to appeal, either before or after the deadline to do so
There are only two circumstances in which the party can move
the district court for more time. First, it can move for an
extension under Rule 4(a)(5) based on “excludable
(sic) neglect or good cause.” Fed. R. App. P.
4(a)(5); accord 28 U.S.C. § 2107(c). Or
alternatively, it can move to reopen the time to file an
appeal under Rule 4(a)(6) if it did not receive proper notice
of the underlying judgment. Fed. R. App. 4(a)(6);
accord 28 U.S.C. § 2107(c).
Martin, 876 F.3d at 236. Here, the second option is
not open to Brewer because he acknowledged in his June 7,
2019 Motion that he had received the Court's May 23, 2019
judgment by June 3, 2019. (Doc. # 9 at 1). As for the first
option, the Sixth Circuit ponders whether Brewer's Motion
requesting a stay so that he could timely “file for
rehearing” amounted to a motion to extend the time for
appeal upon a showing of excusable neglect or good cause
under 28 U.S.C. § 2107(c). (Doc. # 23). It plainly
cannot. Brewer's imminent transfer to a medical facility
would have constituted “good cause” for
additional time to file a notice of appeal. Had Brewer sought
such relief, the Court would have readily granted it.
operative question posed by the Sixth Circuit is whether
Brewer's statement that he intended to “file for
rehearing” meant that he intended to file a motion for
reconsideration or to file a notice of appeal. This Court
chose the former interpretation based upon Brewer's
expressed intention to seek “rehearing.” (Doc. #
11). The Sixth Circuit attempts to buttress the plausibility
of the latter interpretation by recharacterizing Brewer's
words as expressing an intention to “timely challeng[e]
the district court's judgment” by “tak[ing]
the next step in his case.” (Doc. # 23 at 2). In his
Motion, however, Brewer himself plainly stated he intended to
file for rehearing. (Doc. # 9 at 1). Nor is “appeal,
” or any word of similar import, to be found anywhere
within Brewer's June 7, 2019 Motion. Id.
absence of a textual basis in Brewer's Motion for the
inference sought by the panel, the Sixth Circuit articulates
the broad principle that courts liberally construe filings
filed by parties proceeding without the benefit of counsel,
stating that “[d]istrict courts must liberally construe
a document that could be interpreted as a notice of appeal or
a motion for extension of time to file a notice of
appeal.” (Doc. # 23 at 2) (citing Hall v.
Stanczyk, 852 F.2d 1287 (6th Cir. 1988); Hall v.
Tennessee Dep't of Corr. Main Hosp., 811 F.2d 605
(6th Cir. 1986)). In Stanczyk, 852 F.2d at *1, the
Sixth Circuit remanded the case to the district court to
determine whether letters requesting copies of documents for
the purpose of filing an appeal could be construed as a
notice of appeal or extension of time. In Tennessee
Dep't of Corr. Main Hosp., 811 F.2d at *1, the Sixth
Circuit construed a letter asking for the address of the
Court of Appeal and the record as either a motion for
extension of time to file an appeal or a notice of appeal
itself. These decisions, however, are unpublished, and for
this reason, neither decision provides any binding authority
for the proposition for which it is cited. See United
States v. Yates, 866 F.3d 723, 728 (6th Cir. 2017)
(citing Bell v. Johnson, 308 F.3d 594, 611 (6th Cir.
2002)). More recent cases, published ones at that, indicate
far less willingness to “construe” a pro
se document as meaning something it plainly does not
say. See Martin v. Sullivan, 876 F.3d 235, 237 (6th
Cir. 2017) (declining to construe a notice of appeal as a
motion to reopen his time to appeal); Isert v. Ford Motor
Co., 461 F.3d 756, 757 (6th Cir. 2006) (declining to
construe a motion for extension of time to file an appeal as
a notice of appeal because the motion stated “any
Notice of Appeal, ” meaning it did not “designate
the judgment being appealed and otherwise failed objectively
to convey an intent to appeal”); Clark v.
Johnston, 413 Fed.Appx. 804 (6th Cir. 2011)
(“Though the pleading standard for pro se
litigants is liberal, it is not without its limits, and does
not ‘abrogate basic pleading essentials in pro
se suits.'”) (quoting Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989)).
simply, there is nothing in the text of Brewer's Motion
to suggest that he sought more time to appeal. As
set forth above, his considerable experience litigating in
court, including his experience filing motions for rehearing
and notices of appeal, indicates that he likely knew the