Calloway v. Veal et al

Filing 102

ORDER GRANTING In Part and DENYING In Part Plaintiff's 100 Request for Extension of Time; ORDER DENYING Request for Extension of Time to File Notice of Appeal, Without Prejudice; ORDER DENYING as Moot 95 Request for Extension of Time to File Objections to Defendants' Response; ORDER GRANTING 97 Request for Extension of Time to File Motion for Reconsideration of Court's Order of August 5, 2013, signed by Magistrate Judge Gary S. Austin on 8/20/2013. Thirty Day Deadline to File Motion for Reconsideration. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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1:08-cv-01896-LJO-GSA-PC
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
REQUEST FOR EXTENSION OF TIME
(Doc. 100)

vs.
DR. WANG, et al.,

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ORDER DENYING REQUEST FOR
EXTENSION OF TIME TO FILE NOTICE
OF APPEAL, WITHOUT PREJUDICE

Defendants.

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ORDER DENYING AS MOOT REQUEST
FOR EXTENSION OF TIME TO FILE
OBJECTIONS TO DEFENDANTS’
RESPONSE (Doc. 95)

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ORDER GRANTING REQUEST FOR
EXTENSION OF TIME TO FILE MOTION
FOR RECONSIDERATION OF COURT’S
ORDER OF AUGUST 5, 2013 (Doc. 97)

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THIRTY DAY DEADLINE TO FILE
MOTION FOR RECONSIDERATION

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I.

BACKGROUND

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Jamisi Jermaine Calloway ("Plaintiff") is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this

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action on December 10, 2008. (Doc. 1.) This action now proceeds on the Third Amended

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Complaint, filed by Plaintiff on October 5, 2009, against defendants Correctional Officers

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(C/O) Oaks and Hayward (“Defendants”), for use of excessive force.1 (Doc. 20.)

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On August 15, 2013, Plaintiff filed a request for a forty-five-day extension of time.

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(Doc. 100.)

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II.

PLAINTIFF’S REQUEST

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Plaintiff requests a forty-five-day extension of time to file (1) a notice of appeal, (2)

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objections to Defendants’ response (Doc. 95) to Plaintiff’s motion for a settlement conference

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and trial schedule, and (3) objections to the court’s order (Doc. 99) denying Plaintiff’s motion

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for a settlement conference and trial schedule. (Doc. 100.) Plaintiff seeks the extension of time

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because of a delay at the prison in providing him with copywork needed to file the notice of

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appeal and objections. Plaintiff asserts that he submitted documents for copywork on July 25,

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2013 and August 1, 2013, but he has not received the copies.
Extension of time to file Notice of Appeal – Fed. R. App. P. 4

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(1)

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Under Rule 4(a) of the Federal Rules of Appellate Procedure, a notice of appeal must be

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filed with the district clerk within thirty days after entry of the judgment or order appealed

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from. Fed. R. App. P. 4(a)(1)(A). However, the district court may extend time to file a notice

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of appeal if a party so moves no later than thirty days after the time for filing the notice of

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appeal expires, and the party shows excusable neglect or good cause.

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4(a)(5)(A).

Fed. R. App. P.

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Plaintiff requests an extension of time to file a notice of appeal. However, Plaintiff has

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not specified which of the court’s orders he intends to appeal. Without this information, the

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court cannot consider Plaintiff’s request for extension of time, because Rule 4(a)(5)(A) places

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time constraints on the district court’s authority to grant an extension of time, depending on the

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date the order being appealed was entered. Therefore, Plaintiff’s request must be denied,

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without prejudice to renewal of the request providing the information required by the court.

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On March 17, 2011, the court dismissed all of the defendants from this action except defendants Dr.
Wang, C/O Oaks, and C/O Hayward, based on violation of Rule 18(a) and Plaintiff’s failure to state a claim.
(Doc. 24.) On April 22, 2013, summary judgment was entered in favor of defendant Dr. Wang. (Doc. 85.)
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Extension of time to file Objections to Defendants’ Response (Doc. 95.)

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(2)

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Plaintiff requests an extension of time to file objections to Defendants’ response (Doc.

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95) to Plaintiff’s motion for a settlement conference and trial schedule. The court has already

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ruled on this request; on August 9, 2013, the court denied this same request for extension of

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time. (Doc. 99.) Thus, this request is moot and shall be denied as such.
Extension of time to file Objections to Court’s Order (Doc. 97)

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(3)

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Plaintiff requests an extension of time to file objections to the court’s order of August 5,

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2013 (Doc. 97), which denied his motion for a settlement conference and trial schedule. The

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court construes this request as a request for extension of time to file a motion for

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reconsideration of the court’s order. Good cause appearing, the extension of time shall be

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granted. Plaintiff shall be granted thirty days from the date of service of this order to file a

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motion for reconsideration of the court’s order of August 5, 2013 (Doc. 97), which denied

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Plaintiff’s motion for a settlement conference and trial schedule.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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GRANTED in part and DENIED in part;
2.

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Plaintiff’s request for an extension of time to file a notice of appeal is DENIED,
without prejudice to renewal of the request;

3.

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Plaintiff’s request for extension of time, filed on August 15, 2013, is

Plaintiff’s request for an extension of time to file objections to Defendants’
response (Doc. 95) is DENIED as moot; and

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Good cause appearing, Plaintiff is GRANTED thirty days from the date of

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service of this order in which to file a motion for reconsideration of the court’s

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order of August 5, 2013 (Doc. 97).

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IT IS SO ORDERED.
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Dated:

August 20, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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