Thomas Harris v. Brian Schaller

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2020 *
Decided December 9, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-3124
THOMAS HARRIS,
Plaintiff-Appellant,
v.
BRIAN SCHALLER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 15-cv-397-wmc
William M. Conley,
Judge.
O R D E R
Thomas Harris, an inmate at Green Bay Correctional Institution in Wisconsin,
seeks to appeal the dismissal of claims that arose in 2007 and 2013. The district court
ruled that his 2007 claims were untimely and the 2013 claims unexhausted. It entered
judgment on September 25, 2018. Thirty-four days later, Harris moved for
* We have agreed to decide the case without oral argument because the appeal is
frivolous. FED. R. A PP. P. 34(a)(2)(A).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19-3124 Page 2
reconsideration. A year later, on September 19, 2019, the court denied that motion as
untimely under Rule 59(e) of the Federal Rules of Civil Procedure, and meritless under
Rule 60. More than 30 days after this post-judgment ruling, Harris mailed a notice of
appeal to contest both the judgment and post-judgment ruling. Because the notice is
untimely, we lack jurisdiction to review both decisions and dismiss this appeal.
Harris argues that his appeal is timely under the prison mailbox rule. See FED. R.
A PP. P. 4(c). This rule treats a prisoner’s documents as filed when the prisoner properly
tenders them “to prison staff … regardless of whether they are ultimately mailed or
uploaded.” Taylor v. Brown, 787 F.3d 851, 859 (7th Cir. 2015); Edwards v. United States,
266 F.3d 756, 758 (7th Cir. 2001) (mailbox rule applies to Rule 59(e) motions). A prisoner
invoking the rule must prove the date that he deposited his filing with the prison’s
legal-mail system in one of two ways. May v. Mahone, 876 F.3d 896, 898 (7th Cir. 2017).
He must submit either (1) a declaration under penalty of perjury of the date of deposit
with proper postage or (2) “evidence (such as a postmark or date stamp) showing that
the paper was so deposited and that postage was prepaid.” FED. R. A PP. P. 4(c); 25(a);
Cobb v. Aramark Corr. Servs., LLC, 937 F.3d 1037, 1040 (7th Cir. 2019).
Harris argues that his post-judgment motion meets the first option for satisfying
the mailbox rule, so it tolled his time to appeal. See FED. R. A PP. P. 4(a)(4)(A). He declares
that he signed and dated it from Green Bay on October 19, 2018, and attached to it a
“certificate of service.” But in his certificate, another inmate (“Walter Smith”) declares
that he “placed this … motion” in “Stanley Correctional Institution’s internal mail
system … addressed to” the court on “October 19, 2018.” Many problems afflict this
declaration, but one readily prevents it from complying with the mailbox rule: it is
incredible. It states that as one inmate (Smith) in one prison (Stanley) possessed a
document, another inmate (Harris) also possessed it at the same time while incarcerated
at another prison (Green Bay). Incredible testimony that describes an impossibility, such
as one thing in two places simultaneously, must be ignored. See United States v Conley,
875 F.3d 391 (7th Cir. 2017); In re Chavin, 150 F.3d 726 (7th Cir. 1998) (affirming decision
to ignore incredible testimony, like an assertion “contrary to a law of nature.”) Further,
under a plain reading of the rule, the prisoner must send the filing from his place of
incarceration. FED. R. A PP. P. 4(c)(1).
Harris also cannot achieve tolling by using the second option—a postmark—to
apply the mailbox rule to his post-judgment motion. The postmark on the envelope that

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No. 19-3124 Page 3
enclosed Harris’s motion reflects the date October 29, 2018—34 days after judgment was
entered. Harris needed to deposit his motion within 28 days of judgment to toll the time
to appeal. See FED. R. A PP. P. 4(a)(4)(A); FED. R. C IV. P. 59(e). Lacking proof of
compliance, Harris cannot benefit from the prison mailbox rule’s second option. Ingram
v. Jones, 507 F.3d 640, 645 (7th Cir. 2007); United States v. Craig, 368 F.3d 738, 740–41
(7th Cir. 2004).
With tolling out of the picture, Harris filed his notice of appeal too late to appeal
the judgment. He filed it a year after entry of judgment—well beyond the 30 days
allowed under Federal Rule of Appellate Procedure 4(a)(1)(A). A timely appeal in a civil
case is a jurisdictional requirement to which we may not make equitable exceptions.
Bowles v. Russell, 551 U.S. 205, 214 (2007). We thus lack jurisdiction to review the
judgment. See Blue v. Int'l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 582 (7th Cir.
2012).
We also lack jurisdiction over the ruling on the post-judgment motion. The
district court denied that motion on September 19, 2019, so Harris needed to file his
notice of appeal within 30 days. This prison mailbox rule does not help him because he
has no proof of that he deposited his notice of appeal in his prison’s mail within those
30 days. He declares that he signed his notice on October 16, 2019, at Green Bay, but in
another impossible declaration, Smith states that he deposited it in Stanley’s mail
system the same day. The postmark, the only other way to show compliance with the
rule, reflects that the notice was mailed four days late, on October 23, 2019.
DISMISSED

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