Manning v. Gay et al

Filing 17

ORDER Plaintiff's November 24, 2014 Motion for Extension of Time to File a First Amended Complaint (Doc. 13 ) is denied. Plaintiff's December 31, 2014 Motion for Enlargement of Time to File a Notice of Appeal (Doc. 14 ) is granted. The Clerk of Court must send a copy of this order to the United States Court of Appeals for the Ninth Circuit as to 9CCA #14-17586 re 15 Notice of Appeal. Signed by Senior Judge Stephen M McNamee on 2/2/2015.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leonard L. Manning,

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No. CV 14-0343-PHX-SMM (MHB)

Plaintiff,
v.

ORDER

John Gay, et al.,

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Defendants.

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On February 21, 2014, Plaintiff Leonard L. Manning, who is confined in the

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Arizona State Prison-Central Arizona Correctional Facility (“CACF”), filed a pro se civil

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rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma

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Pauperis. In a March 14, 2014 Order, the Court denied the Application to Proceed

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because Plaintiff did not file a certified six-month trust account statement. The Court

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gave Plaintiff 30 days to pay the filing and administrative fees or to file a complete

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Application to Proceed In Forma Pauperis, including a certified six-month trust account

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statement.

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On April 8, 2014, Plaintiff filed a “Motion for Relief from the Court’s Order.” In

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a June 16, 2014 Order, the Court denied Plaintiff’s Motion, but gave Plaintiff another 30

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days to either pay the $400.00 filing and administrative fees or file a complete

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Application to Proceed In Forma Pauperis, including a certified six-month trust account

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statement.

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Pauperis. In a September 16, 2014 Order, the Court granted the Application to Proceed

On June 30, 2014, Plaintiff filed an Application to Proceed In Forma

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and dismissed the Complaint with leave to amend. The Court gave Plaintiff 30 days to

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file an amended complaint. Plaintiff did not do so and, on October 31, 2014, the Clerk of

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Court entered a judgment of dismissal for failure to comply with a court order.

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On November 24, 2014, more than three weeks after the Clerk entered judgment,

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Plaintiff filed a Motion for Extension of Time to File a First Amended Complaint (Doc.

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13). On December 31, 2014, Plaintiff filed a Motion for Enlargement of Time to File a

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Notice of Appeal (Doc. 14).

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In the Motion for Extension of Time to File a First Amended Complaint, Plaintiff

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states he suffers from medical disabilities which impede his penmanship and ability to

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write. Plaintiff further re-iterates the claims in his original complaint and argues that he

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is entitled to access to the courts. Plaintiff does not explain why he was unable to request

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an extension of time within the 30-day filing deadline or why he filed nothing until three

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weeks after a judgment of dismissal was entered.1 Accordingly, the Court will deny the

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Motion for Extension of Time.

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Plaintiff has also filed Motion for Enlargement of Time to File a Notice of Appeal
(Doc. 14). Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure provides:

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If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time
to file an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion:

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...

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(iv) to alter or amend the judgment under Rule 59;

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...

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(vi) for relief under Rule 60 if the motion is filed not later
than 28 days after judgment is entered.

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The Court notes that Plaintiff was able to timely comply with the two previous
filing deadlines set by the Court in this case. The Court further notes Plaintiff has filed
five previous actions with this Court and is familiar with the Court’s procedures and
filing deadlines.
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Although Plaintiff does not label his November 24, 2014 Motion for Extension of

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Time as a motion for relief under either Rule 59(e) or Rule 60 of the Federal Rules of

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Civil Procedure, the Court will construe the Motion as such. As this Order disposes of

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the Motion for Extension of Time, Plaintiff’s December 31, 2014 Notice of Appeal is

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timely. The Court will therefore grant the Motion for Enlargement of Time to File a

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Notice of Appeal.

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IT IS ORDERED:

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(1)

Plaintiff’s November 24, 2014 Motion for Extension of Time to File a First

Amended Complaint (Doc. 13) is denied.
(2)

Plaintiff’s December 31, 2014 Motion for Enlargement of Time to File a

Notice of Appeal (Doc. 14) is granted.
(3)

The Clerk of Court must send a copy of this order to the United States

Court of Appeals for the Ninth Circuit.
DATED this 2nd day of February, 2015.

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