Lance Williams v. Kerkfoot et al

Filing 27

MEMORANDUM AND ORDER GRANTING MOTION TO REOPEN THE TIME TO APPEAL by Judge George H. Wu. IT IS THEREFORE ORDERED that Plaintiffs Motion to Reopen the Time to Appeal 24 is granted. The time to file an appeal shall be open for a period of fourteen days after the date this order is entered. (See document for specifics.) (iva) Modified on 9/24/2015 (iva).

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, 12 Plaintiff, 13 v. 14 KERKFOOT, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No. CV 14-07583-GW(KK) MEMORANDUM AND ORDER GRANTING MOTION TO REOPEN THE TIME TO APPEAL Plaintiff Lance Williams (“Plaintiff”), a California state prisoner proceeding pro 17 18 se, submits his August 6, 2015 Motion to Reopen the Time to Appeal1 (“Motion”), dated 19 July 31, 2015. Plaintiff alleges he did not receive timely notice of the entry of judgment 20 from which he seeks to appeal. Pursuant to Federal Rule of Appellate Procedure 4(a)(6), 21 the Court grants the Motion. 22 /// 23 /// 24 25 1 The Court construes Plaintiff’s notice of appeal as a motion to reopen the time to 26 appeal. Dkt. 24 ; United States v. Withers, 638 F.3d 1055, 1061 (9th Cir. 2011) (holding “we must construe a pro se appellant’s notice of appeal as a motion to reopen the time 27 for filing an appeal when he alleges that he did not receive timely notice of the entry of 28 the order or judgment from which he seeks to appeal”). 1 1 I. 2 BACKGROUND 3 On November 12, 2014, Plaintiff filed a civil rights complaint (“Complaint”) 4 pursuant to 42 U.S.C. § 1983 against Defendants Deputy Kerkfoot, Sheriff Lee Baca, 5 John Doe 1 Seargent [sic] Sheriff, John Doe 2 Sheriff Captain, and L.A. County 6 (“Defendants”). ECF Docket No. (“Dkt.”) 7 at 1-4. On May 15, 2015, the Court found 7 the action untimely and dismissed the Complaint with prejudice. Dkt. 21. Judgment was 8 entered on May 18, 2015. Dkt. 22. On August 6, 2015, the instant Motion, dated July 31, 2015, was filed. Dkt. 24; 9 2 10 Mot. 1-12 . The Motion requests the Court reopen the time to appeal. Mot. 1. Plaintiff 11 alleges he “did not receive notification of judgment order dated 5-15-15 until 7-29-15 12 when it was brought to him [in] institution legal mail and he signed for it.” Id. Plaintiff 13 submits a letter he sent to the Court Clerk dated July 15, 2015, in which he states: “last 14 thing I received from Court was Doc 18 Final Report and Recommendation issued by 15 Magistrate Judge Kenly Kiya Kato then Doc 19 Notice and Discrepancy and Order dated 16 1/23/15.” Id. at 3. Plaintiff’s letter further states: “I’m just writing court to made [sic] 17 sure I have not missed any documents filed and forwarded to me since I have been 18 illegally placed in administrative segregation and transferred and due to issues with mail 19 being tampered with at Solano institution.” Id. Plaintiff also provides an envelope 20 returned to the Court as undeliverable, showing errors in the name and CDC number to 21 which the envelope was addressed. Id. at 7; Dkt. 23. In addition, Plaintiff provides an 22 Administrative Segregation Unit Placement Notice stating he was “being removed from 23 the General Population, and placed in the Administrative Segregation Unit” on April 24, 24 2015. Mot. 10. On September 17, 2015, the Ninth Circuit Court of Appeals issued an order 25 26 referring Plaintiff’s appeal to this Court for the limited purpose of ruling on Plaintiff’s 27 28 2 The Court refers to the Motion’s pages as if they were consecutively paginated. 2 1 Motion. Dkt. 26. 2 II. 3 DISCUSSION 4 A. Legal Standard 5 Under Federal Rule of Appellate Procedure 4(a)(6), the district court may reopen 6 the time to file an appeal for a period of fourteen days after the date an order to reopen is 7 entered, if three conditions exist: (1) the court finds the moving party did not receive 8 notice of the entry of the judgment sought to be appealed within twenty-one days after 9 entry; (2) the motion is filed within fourteen days after the moving party receives notice 10 of the entry; and (3) the court finds no party would be prejudiced. Fed. R. App. P. 11 4(a)(6). 12 Prejudice “means some adverse consequence other than the cost of having to 13 oppose the appeal and encounter the risk of reversal, consequences that are present in 14 every appeal.” Id. Advisory Committee’s note to 1991 Amendment. 15 B. Application 16 Here, the Court reopens the time to file an appeal because: (1) Plaintiff did not 17 receive timely notice of entry of the Judgment; (2) Plaintiff’s Motion was timely filed; 18 and (3) reopening the time to file an appeal would not cause prejudice to any party. Fed. 19 R. App. P. 4(a)(6). 20 1. Twenty-One Days After the Entry 21 22 Plaintiff Did Not Receive Notice Of Entry Of The Judgment Within The Court entered Judgment on May 18, 2015. Dkt. 22. Plaintiff states he 23 received the Judgment seventy-two days later on July 29, 2015. Dkt. 24 at 1; Mot. 1. 24 The envelope returned to the Court as undeliverable and Administrative Segregation 25 Unit Placement Notice support Plaintiff’s statement he received the Judgment seventy26 two days after its entry. Mot. 7, 10. Therefore, the Court finds Plaintiff did not receive 27 notice of entry of the Judgment within twenty-one days of the entry. Fed. R. App. P. 28 4(a)(6)(A). 3 1 2. Notice Of The Entry 2 3 The Motion Was Filed Within Fourteen Days After Plaintiff Received Plaintiff received notice of entry of the Judgment on July 29, 2015. Mot. 1. Eight 4 days later, his Motion was filed on August 6, 2015. Id. Therefore, the Motion was filed 5 within fourteen days after Plaintiff received notice of the entry. Fed. R. App. P. 6 4(a)(6)(B). 7 3. Reopening The Time To Appeal Would Prejudice No Party 8 Other than “the cost of having to oppose the appeal and encounter the risk of 9 reversal, consequences that are present in every appeal,” the Court finds no prejudice to 10 Defendants. Fed. R. App. P. 4(a)(6) Advisory Committee’s note to 1991 Amendment. 11 III. 12 ORDER 13 IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reopen the Time to 14 Appeal is granted. The time to file an appeal shall be open for a period of fourteen days 15 after the date this order is entered. 16 17 DATED: September 23, 2015 18 _______________________________________ HONORABLE GEORGE H. WU UNITED STATES DISTRICT JUDGE 19 Presented by: 20 21 ____________________________________ HONORABLE KENLY KIYA KATO 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4

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