                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS          August 12, 2003

                        FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                   Clerk

                            No. 02-61063
                      USDC No. 4:00-CV-315-P-D


                         EZELL WASH; ET. AL,

                                                           Plaintiffs,

     EZELL WASH; PORTER SHORTER; KENNETH DENNIS; DESMOND EARL
    PHILLIPS; BOBBY CALDWELL; GARY MOORE; JIMMY POWELL; CHRIS
  BOYD; ROBERT PRICE; RUDY ROMERO; GLENDALE SONES; DAVID MCGEE;
                   RICHARD SIMS, JR; JAMES REED

                                                Plaintiffs-Appellants,

                               versus

          ROBERT JOHNSON, Commissioner; JAMES ANDERSON;
         WALTER BOOKER; W. L. HOLMAN; ROBERT ARMSTRONG;
           GENE CROCKER; EARL JACKSON; JESSIE STREETER;
             CHRISTOPHER EPPS; LARRY KEYS; PAMELY LEE;
        CHARLES THOMAS; GLENN ADAMS; WILLIE WALKER; CASE
          MANAGER JACKSON; SAM WEBB; JACQILYN MAXWELL;
           MAUD IRBY; JOE CONNERS; FRANK GRAMMAR; LARRY
         HARDY; JOHN DOE(S), Liability Surities/Bonding
                    Companies of All Defendants,

                                                Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

BY THE COURT:

     Twenty-four state prisoners filed a pro se civil rights action

contesting the conditions of their confinement. The district court

ultimately dismissed plaintiffs’ complaint, and a notice of appeal
was timely filed, purportedly on behalf of all plaintiffs, but

signed only by plaintiff Desmond Phillips.

     The clerk of this court advised Phillips that the appeal was

proceeding as to Phillips only because his was the only signature

on the notice.     The non-signing appellants were sent a copy of this

letter.    Plaintiff Garry Moore subsequently requested that the

appeal be reinstated as to all of the appellants.         He argued that,

under Becker v. Montgomery, 532 U.S. 757 (2001), the failure to

sign a notice of appeal was a nonjurisdictional defect that could

be cured by correcting the omission.        The clerk’s office informed

Moore that it was taking no action with respect to his request and

directed his attention to this court’s opinion in Mikeska v.

Collins, 928 F.2d 126 (5th Cir. 1991), holding that in cases

involving multiple pro se appellants, in which the notice of appeal

was signed by less than all the appellants, each non-signing

appellant must file a notice of appeal within the time allowed by

FED. R. APP. P. 4(a) or the appeals of the non-signing appellants

should be dismissed.     Moore responded that the appeals of the non-

signing appellants could not be dismissed under Mikeska until the

court first inquired whether those parties had an intent to appeal

and because, under Mikeska, the defect in the notice of appeal

could be cured by the signatures of the non-signing parties.            The

clerk’s   office    responded   that   inquiries   into   the   non-signing

parties’ intent to appeal would have been moot because, by the time



                                       2
the notice of appeal was docketed in this court, the time to appeal

under FED. R. APP. P. 4(a) had expired.

     Moore subsequently filed a motion for reconsideration of the

clerk’s refusal to reinstate the appeal as to all appellants.     The

clerk’s office then notified the non-signing appellants that they

had 30 days to submit a signed notice of appeal and that the issue

of whether their appeals would be reinstated would be submitted to

this court.   Signed notices of appeal were received by all but two

of the appellants.

     A timely notice of appeal is a prerequisite to the exercise of

jurisdiction by this court.      Dison v. Whitley, 20 F.3d 185, 186

(5th Cir. 1994).     FED. R. APP. P. 4(a)(1) requires that the notice

of appeal in a civil action be filed within 30 days of entry of the

judgment or order from which appeal is taken.    Any other party who

wishes to appeal has 14 days after the initial notice was filed to

pursue an appeal.    FED. R. APP. P. 4(a)(3); see also FED. R. APP. P.

4(c)(2).

     Notices of appeal are subject to the requirements of FED. R.

CIV. P. 11(a).   See Gonzales v. Wyatt, 157 F.3d 1016, 1021-22 (5th

Cir. 1998).   Relevant provisions of Rule 11 provide:

     (a) Signature. Every pleading, written motion, and other paper
     shall be signed by at least one attorney of record in the
     attorney’s individual name, or, if the party is not
     represented by an attorney, shall be signed by the
     party. . . .    An unsigned paper shall be stricken unless
     omission of the signature is corrected promptly after being
     called to the attention of the attorney or party.

     In Mikeska, we held that to be valid as to a specific

                                   3
appellant, a multi-party pro se notice of appeal must be signed by

that appellant.     Mikeska, 928 F.2d at 126.       We further instructed

that “when a timely filed multi-party pro se notice of appeal that

fails to bear what purports to be the signature of one or more of

the persons listed as appellants, the clerk of this court shall,

pursuant    to   FED. R. APP. P.     4(a)(3),   notify    the   non-signing

appellant[s] of the right to file a notice of appeal ‘within 14

days after the date on which the first notice of appeal was filed,

or within the time otherwise prescribed by . . . Rule 4(a),

whichever period last expires.’” Id. “The written notification of

a party’s intent to appeal, signed by the subject appellant shall

be deemed timely filed if received by the district clerk or our

clerk of    court   within   the   time   allowed   by   FED. R. APP. P[.]

4(a)(3).”    Id.    In Carter v. Stalder, 60 F.3d 238, 239 (5th Cir.

1995), the clerk’s office did not give the non-signing appellants

the notice required by Mikeska because it was unsure whether the

notice of appeal was timely.       We concluded that, after the 14-day

period under Rule 4(a)(3) had expired, the non-signing appellant

could not appeal, “despite the lack of Mikeska notice.”            Id.

     Our holdings in Mikeska and Carter, however, are not able to

be reconciled with the Supreme Court’s Becker decision. In Becker,

a state prisoner instituted a pro se civil rights action contesting

conditions of confinement.     532 U.S. at 760.      Becker’s timely, pro

se notice of appeal contained his name on a signature line, typed,


                                     4
but not hand-signed.     Id. at 761.        Becker’s appeal was docketed,

and a briefing schedule was set.           Id.   Some six months later, on

its own motion, the Sixth Circuit dismissed the appeal for lack of

jurisdiction because of the want of a handwritten signature on the

notice of appeal.       Id.    No court officer had earlier called

Becker’s attention to the need for a signature, nor had Becker been

afforded an opportunity to cure the defect.              Id.   Becker filed an

unsuccessful motion for reconsideration, to which he attached a

new, signed notice of appeal.             Id.    The Supreme Court granted

certiorari to address the question whether Becker’s failure to sign

his timely-filed notice of appeal required the Court of Appeal to

dismiss his appeal.     Id. at 762.

     The Court stated:    “As plainly as Civil Rule 11(a) requires a

signature on filed papers, [] so the rule goes on to provide in its

final sentence that ‘omission of the signature’ may be ‘corrected

promptly after being called to the attention of the attorney or

party.’”   Becker, 532 U.S. at 764.         “‘Correction can be made,’ the

Rules Advisory Committee noted, ‘by signing the paper on file or by

submitting   a   duplicate    that   contains      the    signature.’”    Id.

(citation omitted).    The Supreme Court further concluded that Rule

11's signature requirement was nonjurisdictional.                 Id. at 766.

Accordingly, in Becker, the Court reversed the dismissal of a pro

se prisoner’s appeal for failure to comply with Rule 11's signature

requirement.     The Court stated that the “[petitioner] proffered a


                                      5
correction of the defect in his notice in the manner Rule 11(a)

permits--he   attempted   to   submit   a   duplicate     containing   his

signature. . . and therefore should not have suffered dismissal

. . . for nonobservance of the Rule.”       Id. at 765.

     In Casanova v. Dubois, 289 F.3d 142, 145 (1st Cir. 2002),

several inmates filed a civil rights complaint which was dismissed

by the district court. One inmate, Casanova, filed a timely notice

of appeal, purportedly on behalf of all of the appellants; however,

the notice contained only his signature.        Id. at 146.      Eighteen

months after the notice of appeal had been filed, the appellees

argued that the appeal should be dismissed as to the non-signing

appellants.   Id. at 145-46.    The First Circuit noted that it was

impossible to tell if the non-signing appellants had intended to

appeal during the brief window of opportunity provided by the

federal rules for filing an appeal.     Id. at 146.     The First Circuit

could surmise that they intended to appeal, however, because when

the prisoners were given the opportunity to signify their desire to

join in the appeal by providing signatures for the notice of

appeal, they did so within the time frame provided by the appellate

court. Id. The First Circuit therefore concluded that, based upon

Becker, the dismissal of appeal as to the inmates who did not

originally sign the notice of appeal was unwarranted.          Id.

     The Supreme Court’s holding in Becker, that the signature

requirement on a notice of appeal is not jurisdictional and may be

cured if properly supplied once omission is called to a party’s

                                   6
attention, effectively overrules our holdings in Mikeska and Carter

that the signature requirement can be cured only within the time

for      filing          a    notice   of   appeal   under   FED. R. APP. P.   4(a).

Accordingly, based upon Becker and in agreement with our sister

circuit’s reasoning in Casanova, we grant Moore’s motions to

reinstate the appeal and to reconsider the clerk’s refusal to do

so, and we reinstate the appeal as to those appellants who were

named in the original notice of appeal and who have now submitted

signed copies of the notice of appeal.                       The appeals of the two

appellants, Edgar Monroe and Donnie Singleton, who still have not

signed the notice of appeal, are not reinstated, however.

          MOTIONS TO REINSTATE APPEAL AND TO RECONSIDER GRANTED; APPEAL

REINSTATED AS TO ALL APPELLANTS EXCEPT EDGAR MONROE AND DONNIE

SINGLETON.




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