Lynch v. Doe, et al

Filing 66

ORDER DENYING 60 Motion to Reopen Time to File Appeal; Clerk of Court to Serve a Copy of this Order on the Ninth Circuit Court of Appeals, signed by Magistrate Judge Michael J. Seng on 12/13/2016. (Served on Ninth Circuit electronicly)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONEY LYNCH

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Plaintiff,
v.

Case No.: 1:09-cv-02097-AWI-MJS (PC)
ORDER DENYING MOTION TO REOPEN
TIME TO FILE APPEAL
(ECF No. 60)

WARDEN OF PLEASANT VALLEY
STATE PRISON, et al.,
Defendants.

CLERK OF COURT TO SERVE A COPY
OF THIS ORDER ON THE NINTH
CIRCUIT COURT OF APPEALS

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Plaintiff Anthoney Lynch is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff initiated this action on December 2, 2009. (ECF No. 1.) The case was

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dismissed on February 27, 2015 for failure to state a claim. (ECF No. 58.) Judgement

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was entered that day. (ECF No. 59.)

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On August 17, 2015, 173 days after judgment was entered, Plaintiff filed a motion

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for an extension of time to file a notice of appeal. (ECF No. 60.) The Court construed

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Plaintiff’s filing as both a motion for an extension of time and a notice of appeal. The

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motion to extend time was denied as untimely. (ECF No. 61.) The appeal was

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transmitted to the Ninth Circuit Court of Appeals.

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On November 15, 2015, the Ninth Circuit Court of Appeals remanded Plaintiff’s

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appeal to the district court for the limited purpose of determining whether Plaintiff’s
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August 17, 2015 motion included a timely motion to reopen the time to file a notice of

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appeal under Federal Rule of Appellate Procedure 4(a)(6) and if so, to rule on said

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motion. In so doing, the Circuit Court noted that, according to the district court docket,

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the February 27, 2015 judgment was not sent to Plaintiff until July 14, 2015.

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Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal

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must be filed with the district clerk within thirty days after the entry of judgment or the

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order appealed from. However, a district court may reopen the time to file an appeal if

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the court finds the moving party did not receive notice of the entry of judgment within

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twenty-one days after entry and the motion to reopen time to file an appeal is filed within

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one hundred eighty days after the judgement is entered or within fourteen days after the

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moving party receives notice of the entry of judgment, whichever is earlier. Fed. R. App.

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P. 4(a)(6)(A) and (B).

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Construing Plaintiff’s motion as seeking to reopen the time to file an appeal, on

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November 8, 2016, the Court issued an order for Plaintiff to show cause why his motion

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to reopen time to file an appeal should not be denied as untimely. (ECF No. 64.) The

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Court noted that while it was true Plaintiff did not receive notice of the entry of judgment

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until months after it was entered, Plaintiff failed to file his motion to reopen time within

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fourteen days of his receipt of the entry of judgment, as Plaintiff’s August 17, 2015

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motion was mailed on August 11, 2015, twenty-eight days after the notice of entry of

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judgment was served on Plaintiff’s institution. (ECF No. 60 at 5.)

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Plaintiff was given twenty-one days to respond. The twenty-one day period

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elapsed and Plaintiff did not file a response, nor did he seek an extension of time in

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which to do so. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to reopen

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the time to file an appeal (ECF No. 60) is DENIED as untimely.
IT IS SO ORDERED.

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Dated:

December 13, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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