Lynch v. Doe, et al
Filing
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ORDER DENYING Motion to Reopen Time to File Appeal as Untimely 60 ; ORDER DENYING Motion to Excuse Untimely Filing 69 ; 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 1/27/17. (Hellings, J)
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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 AS UNTIMELY
(ECF No. 60)
WARDEN OF PLEASANT VALLEY
STATE PRISON, et al.,
Defendants.
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ORDER DENYING MOTION TO EXCUSE
UNTIMELY FILING
(ECF No. 69)
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.
Plaintiff initiated this action on December 2, 2009. (ECF No. 1.) The case was
dismissed on February 27, 2015 for failure to state a claim. (ECF No. 58.) Judgement
was entered that day. (ECF No. 59.)
On August 17, 2015, 173 days after judgment was entered, Plaintiff filed a motion
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 served on Plaintiff’s institution until July 14,
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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). Under this Rule, Plaintiff would have had to serve his motion to
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reopen time on or before July 28, 2015 for it to be timely. Plaintiff’s August 17, 2015
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motion to reopen was mailed on August 11, 2015, twenty-eight days after the notice of
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entry of judgment was served on Plaintiff’s institution. (ECF No. 60 at 5.)
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On November 8, 2016, the Court issued an order for Plaintiff to show cause why
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his motion to reopen time to file an appeal should not be denied as untimely. (ECF No.
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64.) Plaintiff filed a response, fashioned as a motion to excuse his untimely filing, on
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January 23, 2017. (ECF No. 69.) Therein, Plaintiff avers that during the fourteen day
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window to file his motion to reopen the time to file an appeal, he was confined in
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administrative segregation and had no law library access and thus, no opportunity to
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learn the time limits proscribed by the Federal Rules of Appellate Procedure. He
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therefore does not dispute that his motion was untimely, but rather asks for his
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untimeliness to be excused.
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The deadlines proscribed under Rule 4(a) are mandatory and jurisdictional.
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Bowles v. Russell, 551 U.S. 205, 209 (2007). As Plaintiff did not file his motion to reopen
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time within fourteen days of receipt of the judgement he seeks to have reopened or by
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July 28, 2015, the Court does not have the authority to reopen the time for Plaintiff to file
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his notice of appeal. Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir. 1994).
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s motion to excuse his untimely filing (ECF No. 69) is DENIED; and
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2.
Plaintiff’s motion to reopen the time to file an appeal (ECF No. 60) is
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DENIED as untimely.
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IT IS SO ORDERED.
Dated:
January 27, 2017
/s/
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UNITED STATES MAGISTRATE JUDGE
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Michael J. Seng
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