“pro se litigants are not excused from failing to follow basic procedural requirements.”
How later courts described this case
- “pro se litigants are not excused from failing to follow basic procedural requirements.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ROBERT L. DYKES #201541, Case No. 2:24-cv-00017
Plaintiff, Hon. Robert J. Jonker
U.S. District Judge
v.
MICHAEL BROWN, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses pro se Plaintiff state
prisoner Robert L. Dykes’s motion for an enlargement of time to file an appeal. (ECF
No. 46.) The Sixth Circuit issued an order remanding this case “for consideration of
whether Dykes’s time for filing a notice of appeal should be extended.” (ECF No. 51,
PageID.787.) In the order, the Sixth Circuit framed the issue:
On March 3, 2025, the district court granted the defendants’ motion to
dismiss Robert L. Dykes-Bey’s civil action. Any notice of appeal was
due to be filed on or before April 2, 2025. See 28 U.S.C. § 2107(a), (b);
Fed. R. App. P. 4(a), 26(a). Dykes-Bey’s notice of appeal is dated March
30, 2025, but was not postmarked until April 17, 2025. It was received
in the district court on April 29, 2025. In a letter accompanying the
notice, Dykes-Bey explains that the notice of appeal was placed in the
prison mail on April 2, 2025, and provides supporting documentation of
this fact. However, he acknowledges that he addressed the envelope to
the wrong court and that he had to resend the notice once he received
notification of the error.
(Id., PageID.786.)
II. Analysis
Federal Rule of Appellate Procedure 4(a)(5) allows a district court to “extend
the time to file a notice of appeal” if the party seeking the extension “shows excusable
neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(ii). Dykes moved for an extension
of time to file his notice of appeal by “asking for forgiveness for mistake.” (ECF No.
46, PageID.765.) Dykes says that he mailed his notice of appeal to the Eastern
District of Michigan. (ECF No. 46-1, PageID.768.) His MDOC disbursement says
that he sent the notice to the wrong Court. (Id.) The disbursement indicates that
Dykes gave his notice to a prison official for mailing on April 2, 2025. (Id.) He did
not discover his error until the notice was returned to him. (Id., PageID.769.) Dykes
filed a document dated April 10, 2025, from the Eastern District of Michigan
returning his Notice of Appeal. (Id., PageID.769.)
Excusable neglect is “a strict standard which is met only in extraordinary
cases.” Proctor v. N. Lakes Cmty. Mental Health, 560 F. App'x 453, 458 (6th Cir.
2014) (quoting Nicholson v. City of Warren, 467 F.3d 525, 526 (6th Cir. 2006)). In
determining whether a party has established excusable neglect, courts look to the
following five factors:
(1) the danger of prejudice to the nonmoving party, (2) the length of the
delay and its potential impact on judicial proceedings, (3) the reason for
the delay, (4) whether the delay was within the reasonable control of the
moving party, and (5) whether the late-filing party acted in good faith.
Nafziger v. McDermott Int'l, Inc., 467 F.3d 514 (6th Cir. 2006) (citing Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
Defendants oppose the motion to extend the deadline for the notice of appeal
by arguing that Dykes cannot meet any of the five factors. Defendants assert they
are prejudiced due to delay because they believed that this case was over when a
timely notice of appeal was not filed by Dykes and the length of the delay was 27
days. (ECF No. 53, PageID.796.) More importantly, Defendants argue that Dykes
failed to present good reasons for his delay. Dykes’s only reason for submitting his
notice of appeal late was because he made a mistake by submitting the documents to
the wrong court. (ECF No. 46.)
Dykes admits that his failure to submit a timely notice of appeal was his own
mistake. Dykes had more than enough time to review the Court’s order dismissing
his case and to file a proper notice of appeal. The mistake is solely his and he offers
no good faith reason for his failure to submit a timely notice of appeal to this Court.
Dykes is an experienced pro se litigant with at least 13 lawsuits to his credit. (ECF
No. 1, PageID.3.) Dykes has negotiated settlements and represented himself during
jury trials. He is familiar with the Court rules and procedures.
The Court acknowledges that Dykes made a mistake by sending his notice of
appeal to the wrong court and the Court cannot conclude that he acted in bad faith.
But the relevant factors “do not carry equal weight; the excuse given for the late filing
must have the greatest import.” Proctor, 560 F. App’x at 459 (quoting United States
v. Munoz, 605 F.3d 359, 372 (6th Cir. 2010)). Excusable neglect does not include
inadvertence or mistakes. Marsh v. Richardson, 873 F.2d 129, 131 (6th Cir. 1989).
It is the opinion of the undersigned that Dykes has failed to show excusable
neglect and that his reason for the untimely filing of his notice of appeal fails to
establish an extraordinary case where an extension of time to file a notice of appeal
may be granted. See Choice Hotels Int’l v. Mahroom, 2000 WL 236331, *2 (D. Md.
Feb. 29, 2000) (motion to extend the time to file a notice of appeal due to clerical error
mistake which caused the filing of the notice of appeal in the wrong court “falls short
of the showing requiring for excusable neglect.”); see also Nicholson, 467 F.3d at 572
(“Ignorance of the rules or mistakes in construing the rules do not usually constitute
excusable neglect.” (quoting Pioneer Inv. Servs. Co., 507 U.S. at 392)); Garland v.
Wells Fargo Home Mortg. Inc., 303 F. Supp. 3d 554, 559 (E.D. Mich. 2018) (“pro se
litigants are not excused from failing to follow basic procedural requirements.”).
III. Recommendation
Accordingly, it is respectfully recommended that the Court deny Dykes’s
motion to extend the time to file a notice of appeal.
NOTICE TO PARTIES: Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the Court within fourteen
(14) days of receipt of this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely objections
constitutes a waiver of any further right to appeal. United States v. Walters, 638
F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).
Dated: June 27, 2025 /s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE