Moreno v. Beddome et al

Filing 43

ORDER, Plaintiff's 35 Notice of Appeal, construed as a motion to reopen the time to file a Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6), is denied, re: 13-15297. Signed by Judge David G Campbell on 3/27/13. (REW)

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JWB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Oscar Shaun Moreno,
Plaintiff,

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vs.

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CJ Beddome, et al.,

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Defendants.

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No. CV 11-2333-PHX-DGC (SPL)
ORDER

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Plaintiff brought this civil rights action under 42 U.S.C. § 1983 against Maricopa

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County and three employees of the Fourth Avenue Jail (Doc. 1). After two Court Orders

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were returned as “undeliverable,” the Court dismissed this action on August 31, 2012,

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pursuant to Federal Rule of Civil Procedure 41(b) and the five-factor analysis articulated in

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (Doc. 31).

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Plaintiff filed a Notice of Appeal on February 14, 2013 (Doc. 35). The Ninth Circuit

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indicated that the notice could be construed as a motion to reopen the time to appeal under

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Federal Rule of Appellate Procedure 4(a)(6), and referred the case back to this Court to

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determine whether Plaintiff has filed a timely motion to reopen the time to appeal and, if so,

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to rule on the motion (Doc. 39). Because the record does not reveal the dates upon which

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Plaintiff (1) received notice of the Court’s judgment and (2) delivered his motion to reopen

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to prison officials for mailing, both of which are necessary to resolve the motion to reopen,

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the Court directed Plaintiff to submit an affidavit providing that information (Doc. 40).

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Plaintiff filed the requested affidavit, indicating that he learned of the Court’s

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judgment in the “beginning of January 2013” and his motion to reopen was filed “on

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February 14, 2013” (Doc. 41).

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A court has authority to reopen the time to file a notice of appeal only if three

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conditions are satisfied: (1) the moving party did not receive notice of the entry of the

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judgment within 21 days after entry; (2) the motion is filed within 180 days after the

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judgement is entered or within 14 days after the moving party receives notice of the entry of

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judgment under Federal Rule of Civil Procedure 77(d), whichever is earlier; and (3) the court

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finds that no party would be prejudiced. These conditions are jurisdictional and the Court

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has no authority to grant an extension if they are not satisfied. Vahan v. Shalala, 30 F.3d

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102, 103 (9th Cir. 1994).

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The first condition is satisfied because the record confirms that Plaintiff did not

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receive notice of the judgment within 21 days of its entry (see Doc. 33 (indicating that the

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Court’s dismissal order and judgment were returned as undeliverable)).

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The next condition requires that the motion to reopen be filed by the earlier of two

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alternative dates: within 180 days of the judgment (which was February 27, 2013) or within

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14 days after receiving notice of the judgment. Plaintiff’s affidavit does not provide an exact

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date that he received notice of the judgment; instead, he alleges that he learned of the

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judgment in “early January 2013” (Doc. 41). The record reflects that the Clerk of Court re-

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mailed copies of the Court’s dismissal order and judgment on January 16, 2013 and Plaintiff

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delivered his motion to reopen to prison officials on February 12, 2013, or 27 days later.1

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Thus, even allowing time for Plaintiff to receive the Court’s judgment after it was mailed,

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his motion to reopen is untimely. This conclusion is bolstered by Plaintiff’s avowal that he

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learned of the judgment in early January and did not file his motion to reopen until February

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14. As discussed, because these time limits are jurisdictional, the Court has no discretion to

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See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (applying the prison

mailbox rule articulated in Houston v. Lack, 487 U.S. 266, 270-71 (1988), to section 1983
lawsuits by pro se prisoners).
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grant Plaintiff’s motion under these circumstances. Thus, the Court need not reach the third

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condition and Plaintiff’s motion to reopen must be denied.

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IT IS THEREFORE ORDERED:

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(1)

Plaintiff’s Notice of Appeal, construed as a motion to reopen the time to file

a Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6), is denied.
(2)

The Clerk of Court must send a copy of this Order to the Ninth Circuit Court

of Appeals referencing appeal number 13-15297.
DATED this 27th day of March, 2013.

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