John Stephan Parisie v. J. W. Greer, Warden, Menard Correctional Center

685 F.2d 1016, 1982 U.S. App. LEXIS 18785

Opinions

ORDER

The question presented by the State’s petition for rehearing involves the filing of a Rule 59 motion. Although Parisie characterized his motion as a Rule 60 one, he was acting pro se. The substance of the motion was a Rule 59 one — a motion to reconsider. Moreover, Judge Foreman treated it as a Rule 59 motion and the State did not object to this treatment.

There is no doubt that the motion to reconsider was not timely filed. Nonetheless, several considerations justify waiving the technical-time requirement.

First, we must consider Judge Foreman’s initial failure to treat Parisie’s motion for an extension of time. It is perhaps true that the Rules do not allow an extension of time to file a Rule 59 motion. But if Judge Foreman had ruled quickly to that effect and had informed Parisie that the time to move for reconsideration had passed, then Parisie could have filed a timely appeal to this court on the merits. Instead the judge sat on the motion, allowed Parisie to file his motion to reconsider, and considered the motion on the merits: The State did not object to this treatment. Given the pro se nature of Parisie’s work, it was quite reasonable for Parisie to conclude that failure to rule on his motion for an extension of time still left him in the trial court.

Second, when Judge Foreman treated Parisie’s motion on the merits the State never objected. The State should have raised this issue before Judge Foreman to permit him to confront it. Even when the State finally objected on appeal, it failed to show prejudice. In every single memorandum on this issue (to the motion panel, to the panel itself, and in its petition for rehearing), the State failed to show how Parisie’s pro se technical failure prejudiced the State. Moreover, given the State’s repeated inordinate number of requests for continuances in this court, it can hardly plead prejudicial delay.

Third, all these events involved a pro se litigant working under the worst possible conditions. Parisie stated in his affidavit accompanying his motion for an extension of time that he could not get access to the law library in the prison and could not have his papers typed and mailed to meet the ten-day requirement. Access to these things is never easy in prison, but conditions were exacerbated because of the Holiday Season. Parisie’s only failure was a technical one involving timeliness. Courts have often recognized the special latitude given pro se litigants. Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521, does not hold otherwise. In Browder it was the State that failed to file timely, and on those facts the Supreme Court strictly enforced the timeliness requirement. Here we have a pro se litigant who failed to file timely. This factual difference is crucial.

There are two reasons for the time limitation to file a Rule 59 motion. First it alerts the district judge of the grounds for a new trial or a reconsideration without too much delay following the verdict or judgment. Second, it starts promptly the appellate process if such is undertaken. However, the ten-day limitation is not inflexible. Professor Wright has written:

A motion for a new trial, stating grounds therefore, must be made within 10 days after the entry of judgment. Though the tendency has been to apply this strictly, and to hold that neither waiver nor estoppel nor acquiescence by the opposing party can permit the court to act on an untimely motion, a doctrine has developed allowing relief where a party has been misled by action of the court purporting to enlarge the time, even though the court lacks power to make such an order.

Wright, Law of Federal Courts, § 95 at 469. See also 9 Moore’s Federal Practice § 204.-12[2]. Cases supporting the proposition that extenuating circumstances may provide relief from the ten-day limitation for the filing of a Rule 59 motion include Thompson v. INS, 375 U.S. 384, 386-87, 84 S.Ct. 397, 398-399, 11 L.Ed.2d 404 (1964); Eady v. Foerder, 381 F.2d 980, 981 (7th Cir. 1967); Fairway Center Corp. v. UIP Corp., 491 F.2d 1092, 1093-94 (8th Cir. 1974). Here ample extenuating circumstances exist; it would be inequitable and unjust to allow a miscarriage of justice because of a technical failure by a pro se litigant.