Daniels v. Allison et al

Filing 41

ORDER DENYING 40 Motion for Reconsideration and DENYING Motion to File a Late Notice of Appeal signed by Chief Judge Lawrence J. O'Neill on 10/25/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN GERALD DANIELS, 12 Plaintiff, 13 14 1:12-cv-00545-LJO-GSA-PC ORDER DENYING MOTION FOR RECONSIDERATION AND DENYING MOTION TO FILE A LATE NOTICE OF APPEAL (ECF No. 40.) vs. KATHERINE ALLISON, et al., 15 Defendants. 16 17 18 I. BACKGROUND 19 Norman Gerald Daniels (“Plaintiff”) is a state prisoner proceeding pro se in this civil 20 action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (ADA), 21 42 U.S.C. § 12132. 22 This case was dismissed on February 21, 2014, with prejudice, for failure to state a 23 claim, subject to the “three strikes” provision of 28 U.S.C. § 1915(g). (ECF No. 33.) Judgment 24 was entered by the Clerk on February 21, 2014. (ECF No. 34.) On April 12, 2017, Plaintiff 25 appealed the judgment to the Ninth Circuit Court of Appeals. (ECF No. 35.) On May 16, 26 2017, the Ninth Circuit dismissed Plaintiff’s appeal for lack of jurisdiction because it was 27 untimely filed. (ECF No. 38.) On June 7, 2017, the Ninth Circuit issued its mandate. (ECF 28 No. 39.) 1 1 On October 23, 2017, Plaintiff filed a motion titled “Motion to Request Permission to 2 Reopen Case or Permission to Appeal.” (ECF No. 40.) Plaintiff requests the court to reopen 3 this case or issue an order granting him leave to file a late appeal to the Ninth Circuit Court of 4 Appeals. 5 reconsideration of this court’s judgment. The court construes Plaintiff’s motion to reopen the case as a request for Plaintiff’s motion for reconsideration and motion for leave to file a late appeal are now 6 7 before the court. 8 II. MOTION FOR RECONSIDERATION 9 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 10 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with 11 reasonable diligence, could not have been discovered in time to move for a new trial under 12 Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 13 misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies 14 relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to 15 prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” 16 exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and 17 citation omitted). The moving party “must demonstrate both injury and circumstances beyond 18 his control . . . .” 19 reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or different 20 facts or circumstances are claimed to exist which did not exist or were not shown upon such 21 prior motion, or what other grounds exist for the motion.” Id. (internal quotation marks and citation omitted). In seeking 22 “A motion for reconsideration should not be granted, absent highly unusual 23 circumstances, unless the district court is presented with newly discovered evidence, committed 24 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 25 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations 26 marks and citations omitted, and “[a] party seeking reconsideration must show more than a 27 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 28 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 2 1 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a 2 strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare 3 Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and 4 reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 5 Plaintiff’s case proceeded on claims that he was not provided with the proper 6 accessibility software on the prison library’s legal computers in order to afford him equal and 7 effective access to the courts. Plaintiff argues that his case has merit and he should have been 8 allowed to amend the complaint to make the corrections needed to state a claim. Plaintiff 9 requests that his case be reopened and merged with his case Daniels v. Sherman, case 1:16-cv- 10 01313-BAM-PC (E.D. Cal.).1 11 The court has reviewed the record for this case and finds Plaintiff’s arguments 12 unpersuasive. Here, Plaintiff has not set forth facts or law of a strongly convincing nature in 13 his motion for reconsideration to induce the court to reverse its prior decision. Therefore, the 14 motion for reconsideration shall be denied. 15 III. MOTION FOR LEAVE TO FILE LATE APPEAL 16 Plaintiff argues that he should be permitted to file a late appeal because he was unaware 17 of the deadline for filing an appeal and did not know about filing a motion for extension of time 18 at the district court. Plaintiff asserts that he is visually impaired and the prison failed to provide 19 him with the means to access the courts, in violation of the ADA. 20 Under Rule 4(a) of the Federal Rules of Appellate Procedure, the notice of appeal in 21 this civil case was required to be filed within 30 days of the entry of judgment. Fed. R. App. P. 22 4(a)(1)(A). Judgment was entered on February 21, 2014, and therefore the notice of appeal was 23 due on or before March 23, 2014. District courts have limited authority to grant an extension 24 of the thirty-day time period. Bowles v. Russell, 551 U.S. 205, 208, 127 S.Ct. 2360, 2363 25 (2007). Rule 4(a)(5) of the Federal Rules of Appellate Procedure provides the court’s authority 26 to extend the time in which a party may file a notice of appeal. Rule 4(a)(5) provides: 27 1 28 This case was dismissed on March 20, 2017, as barred by res judicata. (ECF No. 18, case 1:16cv-01313-BAM-PC (E.D. Cal.). 3 1 (A) 2 The district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause. 3 4 5 6 (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules. (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later. 7 8 9 10 Rule 4(a)(5) does not provide a basis for the court to allow a late appeal in this case. 11 Plaintiff has not shown that he filed his appeal, or motion for additional time within which to 12 appeal, within the statutory 30-day filing period. Rather, Plaintiff first filed his notice of appeal 13 more than three years after the Clerk of Court entered judgment. Accordingly, the court has no 14 power to provide Plaintiff with additional time in which to appeal pursuant to Rule 4(a)(5). 15 There is one other rule that allows for late appeals. If certain conditions are met, the 16 court has the statutory authority to grant motions to reopen the time for filing an appeal for 14 17 days. 28 U.S .C. § 2107(c). Rule 4(a)(6) of the Federal Rules of Appellate Procedure provides 18 the court’s authority to reopen and extend the time for filing a notice of appeal after the lapse of 19 the usual 30 days. Rule 4(a)(6) provides: 20 21 The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: 22 (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and (C) the court finds that no party would be prejudiced. 23 24 25 26 27 Fed. R. App. P. 4(a)(6). 28 4 1 Here, Rule 4(a)(6) provides no assistance to Plaintiff. Plaintiff’s claim is that he lacked 2 knowledge to timely file a notice of appeal. Plaintiff does not claim that he did not receive 3 notice of the court’s entry of judgment. The purpose of Rule 4(a)(6) is only to soften the harsh 4 penalty of losing one’s right to an appeal because of the court’s failure to notify a party of a 5 judgment, not to allow parties’ to file late appeals. Arai v. American Bryce Ranches, Inc., 316 6 F.3d 1066, 1070 (9th Cir. 2003). Thus, the court has no power to reopen the time in which to 7 appeal pursuant to Rule 4(a)(6). 8 Plaintiff also requests the court allow him to file a late appeal due to his impaired vision 9 and the prison’s failure to adequately assist him. While the court is not unsympathetic to 10 Plaintiff’s argument, this court has no ability to allow a late appeal based on this equitable 11 argument. Filing an appeal within the prescribed time is mandatory and jurisdictional. Bowles, 12 127 S.Ct. at 2363; Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 13 74 L.Ed.2d 225 (1982) (per curiam). Because the timely filing of a notice of appeal in a civil 14 case is a jurisdictional requirement, there is no equitable exception to this jurisdictional 15 requirement. Id. at 2366; Magtanong v. Gonzales, 494 F.3d 1190,1191-92 (9th Cir. 2007). 16 Thus, this court has no ability to allow Plaintiff to file an appeal at this late date. 17 IV. 18 19 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's motion for reconsideration and motion to file a late appeal, filed on October 23, 2017, are DENIED 20 21 22 23 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ October 25, 2017 UNITED STATES CHIEF DISTRICT JUDGE 24 25 26 27 28 5

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