Filed: Apr. 25, 2017
Latest Update: Apr. 25, 2017
Summary: ORDER GRANTING AN EXTENSION OF TIME TO APPEAL YVONNE GONZALEZ ROGERS , District Judge . This federal civil rights action, now closed, was filed pursuant to 42 U.S.C. 1983 by a pro se state prisoner. On January 3, 2017, the Court granted Defendants' motion to dismiss the Eighth Amendment claims against them, upon resolving the issue of qualified immunity asserted in their Rule 12(b)(6) motion. Dkt. 32. The Court also dismissed the remaining Eighth Amendment claims against the unserved De
Summary: ORDER GRANTING AN EXTENSION OF TIME TO APPEAL YVONNE GONZALEZ ROGERS , District Judge . This federal civil rights action, now closed, was filed pursuant to 42 U.S.C. 1983 by a pro se state prisoner. On January 3, 2017, the Court granted Defendants' motion to dismiss the Eighth Amendment claims against them, upon resolving the issue of qualified immunity asserted in their Rule 12(b)(6) motion. Dkt. 32. The Court also dismissed the remaining Eighth Amendment claims against the unserved Def..
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ORDER GRANTING AN EXTENSION OF TIME TO APPEAL
YVONNE GONZALEZ ROGERS, District Judge.
This federal civil rights action, now closed, was filed pursuant to 42 U.S.C. § 1983 by a pro se state prisoner. On January 3, 2017, the Court granted Defendants' motion to dismiss the Eighth Amendment claims against them, upon resolving the issue of qualified immunity asserted in their Rule 12(b)(6) motion. Dkt. 32. The Court also dismissed the remaining Eighth Amendment claims against the unserved Defendants with prejudice. See id. The Court entered judgment on the same date. Dkt. 33.
On March 2, 2017,1 Plaintiff filed a motion to extend the time to appeal under Federal Rule of Appellate Procedure 4(a)(5) due to lock downs at the prison, which have prevented him from filing a timely appeal. Dkt. 34. While the record shows that Plaintiff filed a notice of appeal on March 7, 2017 (see dkt. 35), the Court construes the March 2, 2017 motion as a notice of appeal.
In an Order dated April 20, 2017, the Ninth Circuit Court of Appeals noted as follows:
A review of the record demonstrates that the March 7, 2017 notice of appeal was not filed or delivered to prison officials within 30 days after entry of the January 3, 2017 judgment. However, appellant filed a timely motion for an extension of time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5), which was served on March 2, 2017 and received by the district court on March 7, 2017. The district court has not ruled on that motion.
Accordingly, this appeal is remanded to the district court for the limited purpose of allowing that court to rule on appellant's March 7, 2017 motion.
The district court is requested to serve a copy of its decision on this court at its earliest convenience. Briefing is stayed pending further order of this court.
Dkt. 39 at 1.
Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal "be filed with the clerk of the district court within 30 days after the entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1). Relief from the deadline for a timely notice of appeal may be obtained by a motion in the district court under Rule 4(a)(5), which allows for an extension of time if the party requests it within thirty days of the expiration of the time to file the notice and shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5).
Here, Plaintiff filed his motion to extend the time to appeal within thirty days of the expiration of the time to file his notice of appeal (February 2, 2017), and the request shows good cause. Accordingly, the Court GRANTS Plaintiff an extension of time to appeal nunc pro tunc to March 2, 2017, the date he filed the instant motion, which has also been construed as a notice of appeal.
The Clerk shall forward a copy of this Order to the Ninth Circuit.
This Order terminates Docket No. 34.
IT IS SO ORDERED.
