Opinion
DA 21-0394
12-28-2021
JACOB SMITH, Petitioner and Appellant, v. STATE OF MONTANA, et al., Respondent and Appellee.
ORDER
Through counsel, Appellees City of Helena and Bryan Fischer ("the City") move this Court for dismissal of appeal because self-represented Appellant Jacob Smith has not filed his opening brief within the extended time. The brief was due on November 30, 2021. The City asserts that this failure warrants dismissal pursuant to M. R. App. P. 13(3). Smith responds that he delivered his brief for mailing on October 27, 2021, when he was held at the Montana State Prison. He states that he has since been moved to CoreCivic (formerly known as Crossroads Correctional Center) in Shelby and that he only recently obtained access to a typewriter as well as his legal documents after being initially quarantined for COV1D-19. Smith requests additional time to prepare and file his brief again.
This Court is not inclined to impose a harsh sanction of dismissal here when the appellant is incarcerated, has been recently re-located, and has filed a response to the motion to dismiss. "While pro se litigants may be given a certain amount of latitude in their proceedings, they may not proceed in such a fashion as to abuse the judicial process, prejudicing the opposing party's interests as well as other litigants' access to the judicial system." Fed Land Bank v. Heidema, 224 Mont. 64, 68, 727 P.2d 1336, 1338 (1986). While Smith's brief is now untimely, the City has not alleged it is prejudiced and we conclude that the circumstances warrant allowing the appeal to proceed. Therefore,
IT IS ORDERED that the City's Motion to Dismiss is DENIED and that this appeal may proceed.
IT IS FURTHER ORDERED that Smith is GRANTED until January 28, 2022 to fde his opening brief. Failure to file his opening brief within that time frame will result in dismissal of this appeal without further notice.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Jacob Smith personally.