White et al v. Valarie

Filing 61

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for Extension of Time to File an Appeal, Filed on September 23, 2013, be DENIED re 60 MOTION for EXTENSION OF TIME to File an Appeal filed by Hortense White ; referred to Judge Ishii, signed by Magistrate Judge Gary S. Austin on 11/8/13. Objections to F&R due by 12/2/2013 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HORTENSE WHITE,

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Plaintiff,

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1:13-cv-00157-AWI-GSA-PC
(Appeal Case Number 13-17174)
FINDINGS AND RECOMMENDATION TO
DENY MOTION FOR EXTENSION OF
TIME TO FILE NOTICE OF APPEAL
(Doc. 60.)

vs.
TRENONE VALARIE, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY (20) DAYS

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I.

BACKGROUND
Hortense White (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on
November 26, 2012, at the United States District Court for the Eastern District of Pennsylvania,
as case 12-6599.

(Doc. 1.)

On January 31, 2013, the court for the Eastern District of

Pennsylvania consolidated case 12-6599 [White v. Valarie] with case 12-6885 [White v.
Central California Women’s Facility], and transferred the consolidated action to the United
States District Court for the Eastern District of California. (Doc. 8.)
This case was dismissed on August 30, 2013, with prejudice, for failure to state a claim
upon which relief may be granted under § 1983, and judgment was entered on August 30, 2013.
(Docs. 53, 54.) On September 23, 2013, Plaintiff filed a document which the court construes as
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a motion for extension of time to file an appeal. (Doc. 60.) On October 8, 2013, Plaintiff filed

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a notice of appeal dated October 3, 2013, which was forwarded to the Ninth Circuit court on

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October 25, 2013 and assigned case number 13-17174. (Docs. 56-59.)
Plaintiff’s motion for extension of time to file an appeal is now before the court.

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II.

EXTENSION OF TIME TO FILE NOTICE OF APPEAL – FED. R. APP. P. 4

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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 filed her motion for extension of time on September 23, 2013, which is less

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than thirty days after the time for appealing the court’s order and judgment of August 30, 2013.

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Therefore, Plaintiff’s motion is timely under Rule 4(a)(1)(A). However, Plaintiff makes no

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intelligible argument in support of her motion. Plaintiff has submitted a rambling, mostly

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unintelligible 26-page motion, including exhibits, but Plaintiff fails to make any showing of

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excusable neglect or good cause for an extension of time. Therefore, Plaintiff’s motion must be

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denied.

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III.

Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s

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RECOMMENDATION AND CONCLUSION
motion

for extension of time to file an appeal, filed on September 23, 2013, be DENIED.

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These Findings and Recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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twenty (20) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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///

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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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November 8, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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