IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gary D. Wilder, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0064

Terry Collins, et al., : JUDGE JAMES L. GRAHAM

 Magistrate Judge Kemp

Defendants. :

OPINION AND ORDER

On May 8, 2012, this Court dismissed all claims in this case

as either time-barred or frivolous, depending on what time frame

those claims arose in. Wilder v. Collins, 2012 WL 1606035 (S.D.

Ohio May 8, 2012). Plaintiff subsequently filed a notice of

appeal, which, at least based on the filing date (June 8, 2012)

was one day late. The Court denied his accompanying motion for

an extension of time within which to file a notice of appeal

because it was filed outside the initial 30-day filing period and

because he had not demonstrated extraordinary circumstances

justifying an extension. (Doc. 20).

On October 19, 2012, Plaintiff moved for reconsideration of

that order. In this motion, he argues that he had delivered his

“legal mail” (by which the Court assumes he means both the notice

of appeal and the motion for an extension of time) to the prison

mailroom on June 5, 2012, but that his mail was held for a short

period of time so that the prison could assess the mailing costs

to his prison account. Under the “mailbox rule,” see Houston v.

Lack, 487 U.S. 266 (1988), delivery of a notice of appeal to

prison mail officials is deemed the equivalent of filing. 

Therefore, he contends that he did file his notice of appeal in a

timely fashion. As evidence, he has submitted a copy of a cash

withdrawal slip dated June 5, 2012. The Court also notes that

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the certificate of service on his notice of appeal is dated June

6, 2012, which is one day before the expiration of the thirty-day

appeal period.

Given these new facts, the Court concludes that the notice

of appeal was timely filed, and that the motion for an extension

of time should have been denied as moot. Plaintiff has also paid

the appellate filing fee. Because he is a prisoner, however, and

has filed this action against state officials, were he seeking

leave to proceed on appeal in forma pauperis, the Court would

still have to determine if his appeal had been filed in good

faith. See 28 U.S.C. §1915(a)(3). However, by paying the filing

fee, Mr. Wilder is not seeking leave to proceed in that fashion. 

As the Court of Appeals has noted, a prisoner always has the

option of “‘pay[ing] the full filing fee and any relevant costs

and proceed[ing] on appeal for plenary review ....’” Owens v.

Keeling, 461 F.3d 763, 774 (nth Cir. 2006), quoting 16A WRIGHT,

MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE §3970 (3d Ed.

1999). Thus, no certification from this Court is needed.

For these reasons, the Court GRANTS the motion for

reconsideration (Doc. 21) and reconsiders its order denying the

motion for extension of time to the extent that such denial is

now based on grounds of mootness, given the timely filing of the

notice of appeal. 

IT IS SO ORDERED.

Date: December 13, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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