Lance Williams v. Kerkfoot et al
Filing
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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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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 LANCE WILLIAMS,
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Plaintiff,
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v.
14 KERKFOOT, et al.,
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Defendants.
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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
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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.
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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”).
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I.
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BACKGROUND
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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;
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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
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26 referring Plaintiff’s appeal to this Court for the limited purpose of ruling on Plaintiff’s
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The Court refers to the Motion’s pages as if they were consecutively paginated.
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1 Motion. Dkt. 26.
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II.
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DISCUSSION
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Legal Standard
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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).
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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.
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Application
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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).
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1.
Twenty-One Days After the Entry
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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).
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2.
Notice Of The Entry
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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).
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3.
Reopening The Time To Appeal Would Prejudice No Party
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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.
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III.
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ORDER
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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.
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17 DATED: September 23, 2015
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_______________________________________
HONORABLE GEORGE H. WU
UNITED STATES DISTRICT JUDGE
19 Presented by:
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HONORABLE KENLY KIYA KATO
22 UNITED STATES MAGISTRATE JUDGE
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