United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 14, 2013

*

Decided January 23, 2013

Before

RICHARD A. POSNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 11-3226

GEORGE E. CALHOUN, JR.,

Plaintiff-Appellant,

v.

MICHAEL MYATT,

Defendant-Appellee.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 09 C 4238

Blanche M. Manning,

Judge.

O R D E R

George Calhoun, Jr., appeals the adverse judgment entered in this civil-rights suit

claiming that Michael Myatt, a guard at the Cook County Department of Corrections, beat

him without provocation while he was a pretrial detainee at the facility. We dismiss the

appeal for lack of appellate jurisdiction.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

After examining the parties’ briefs and the record, we have concluded that oral

*

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.

See FED. R. APP. P. 34(a)(2)(C).
No. 11-3226 Page 2

Calhoun had filed a grievance on June 16, 2009, complaining that Myatt assaulted

and injured him. Eight days later, without waiting for his grievance to be answered,

Calhoun filed a complaint about the incident under 42 U.S.C. § 1983. The district court

eventually granted summary judgment for Myatt on the ground that undisputed evidence

establishes that Calhoun failed to exhaust his administrative remedies before filing suit. See

42 U.S.C. § 1997e(a).

Calhoun challenges the district court’s conclusion, but Myatt counters with two

threshold concerns that prevent us from reaching the exhaustion issue. First, Myatt argues

that Calhoun failed to file his notice of appeal within 30 days of the entry of judgment. See

FED. R. APP. P. 4(a)(1). The district court received Calhoun’s notice of appeal six days after

the deadline, and so we directed him to tell us whether he satisfied the requirements of the

mailbox rule, see FED. R. APP. P. 4(c). If he did, then his appeal would be timely. We also

informed him that he could ask the district court to extend the deadline for filing a notice of

appeal, see FED. R. APP. P. 4(a)(5), but he did not take the hint. Calhoun replied to our order

by arguing instead that his notice of appeal was timely because, although he had placed it

in the jail’s internal-mail system three days after the deadline expired, he was late only

because he overlooked the need to buy stamps and could not obtain any before the last

pickup by the postal service on Friday, September 23 (the thirtieth day). At that point, we

decided to allow briefing to proceed, but we directed Calhoun to address in his brief all of

the steps he took to comply with the mailbox rule.

To obtain the advantage of the mailbox rule, Calhoun was required to deposit his

notice of appeal in the jail’s mail system with prepaid postage on or before the thirtieth day

after the entry of judgment. See FED. R. APP. P. 4(c); Ingram v. Jones, 507 F.3d 640, 643–44 (7th

Cir. 2007). It is clear from his brief that he did not do so. He was three days late. He urges

us to overlook this tardiness because, he says, he lacked postage when the postal service

picked up the mail on September 23. But rule recognizes no such excuse. It makes no

difference if, as Calhoun insists, the postal service does not retrieve mail from the jail after

9:00 a.m. on Friday until 9:00 a.m. on Monday. The mailbox rule is not concerned with the

postal service’s collection schedule. Calhoun could have met the deadline by depositing his

notice of appeal in the jail’s mail system with correct postage on September 23. Instead he

waited until the following Monday—three days past the deadline—to do so.

Calhoun admits that he got stamps from the commissary during the day on

September 23. He has never suggested that he tried to deposit his notice of appeal in the

jail’s mailbox after 9:00 a.m. that Friday but was thwarted somehow, perhaps by being told

that he would have to keep it until pickups resumed Monday morning. Even if that is what

Calhoun means to imply, his explanation that he was unaware of the need for stamps until
No. 11-3226 Page 3

shortly before the deadline is not plausible. Calhoun concedes knowing from prior requests

that jail administrators would not cover the postage for his legal mail, and so he must have

anticipated the obligation to buy his own stamps to mail his notice of appeal. Calhoun

rationalizes his lack of diligence by noting that he was confined in a wing of the jail where

commissary orders are delivered only on Fridays, but four Fridays (not including

September 23) had passed between the date of the final judgment and the deadline for

depositing his notice of appeal. Calhoun has submitted records of his commissary

purchases and trust-fund balances, and these records show that he had money and bought

other items but apparently not stamps. A prisoner or other detainee must comply with the

mailbox rule to reap its benefits. Ingram, 507 F.3d at 644–46; see also Cannon v. Washington,

418 F.3d 714, 718 (7th Cir. 2005) (concluding that mailbox rule did not rescue filing placed

in prison mail before deadline but without sufficient postage); United States v. Craig, 368

F.3d 738, 740 (7th Cir. 2004) (noting importance of mailbox rule’s postage requirement).

And we have warned litigants that when they “wait until the last minute to comply with a

deadline, they are playing with fire.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir.

1996). Because he missed the deadline for depositing his notice of appeal in the jail’s

internal-mail system, Calhoun’s appeal is untimely.

Myatt offers a second independent reason for dismissing Calhoun’s appeal: he

asserts that Calhoun’s opening brief ignores the district court’s analysis and thus fails to

comply with Federal Rule of Appellate Procedure 28(a)(9)(A). We agree. On the one page of

his brief dedicated to the question of exhaustion, Calhoun declares that he did exhaust his

administrative remedies and recounts the process he followed. But he does not confront the

district court’s assessment that these steps were not enough to comply with the jail’s

established grievance procedure, and thus was not enough to satisfy § 1997e(a). See

Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Calhoun’s brief lacks any semblance of an

argument about why the district court should have accepted his characterization of the

grievance procedure over Myatt’s. Although we liberally construe pro se submissions, Rule

28(a)(9)(A) requires that all appellate briefs, even those from a nonlawyer, include “more

than a generalized assertion of error with citations to supporting authority.” Anderson v.

Hardman, 241 F.3d 544, 545 (7th Cir. 2001). Calhoun’s brief falls short, which is a second

reason that his appeal must be dismissed.

Accordingly, the appeal is DISMISSED. Calhoun’s motion for appointment of counsel

is DENIED.