Brett William Stewart v. Ann-Marie Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 16, 2024
• Docket: 24-12881
• Status: Unpublished

Opinion

USCA11 Case: 24-12881 Document: 8-2 Date Filed: 10/16/2024 Page: 1 of 3

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-12881 ____________________

BRETT WILLIAM STEWART, Plaintiff-Appellant, versus ANN-MARIE BROWN, Correctional Probation Supervisor/Officer,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 1:23-cv-00126-AW-MAF ____________________

Before JORDAN and LUCK, Circuit Judges. USCA11 Case: 24-12881 Document: 8-2 Date Filed: 10/16/2024 Page: 2 of 3

2 Order of the Court 24-12881

BY THE COURT: Brett Stewart, proceeding pro se, appeals the district court’s August 5, 2024, order and judgment that dismissed his action. Stewart’s September 6, 2024, notice of appeal is untimely by two days. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). How- ever, Stewart included with his untimely notice a letter in which he suggested that a power outage caused by a hurricane delayed his receipt of notice of the August 5 order and in which he appeared to seek additional time to appeal. That letter could be construed as a motion for an extension of time to file a notice of appeal under Fed. R. App. P. 4(a)(5) or a motion to reopen the time to file a notice of appeal under Fed. R. App. P. 4(a)(6). See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A), 4(a)(6) (providing the district court with authority to extend or reopen the appeal period upon motion); Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997) (explain- ing that we will construe a late notice of appeal as a Rule 4(a)(6) motion if the appellant indicates that he did not receive notice of the final order or judgment within 21 days of entry); Pinson v. JPMorgan Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1206 (11th Cir. 2019) (explaining that we construe pro se pleadings liberally). As that letter was not docketed separately from the notice of appeal, it appears that the district court has not had an opportunity to con- sider it. Accordingly, we REMAND the case to the district court for the limited purpose of determining whether Stewart’s letter in- cluded with his untimely notice of appeal should be construed as a USCA11 Case: 24-12881 Document: 8-2 Date Filed: 10/16/2024 Page: 3 of 3

24-12881 Order of the Court 3

Rule 4(a)(5) or 4(a)(6) motion and, if so, whether he is entitled to relief under either of those Rules. After making its determinations, the district court shall return the record, as supplemented, to this Court for further proceedings.