Armstead v. Virga et al

Filing 76

ORDER signed by Magistrate Judge Kendall J. Newman on 3/4/13 ORDERING that plaintiff's request for an extension of time to file his appeal is granted; plaintiffs notice of appeal (Dkt. No. 71 ) is deemed timely; and the Clerk of the Court shall serve a copy of this order on the Ninth Circuit Court of Appeals. (cc Ninth Circuit)(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES ARMSTEAD,

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Plaintiff,

No. 2: 11-cv-1054 JAM KJN P

vs.
TIM V. VIRGA, et al.,
Defendants.

ORDER
/

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. On January 10, 2013, plaintiff filed a notice of appeal as to the

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December 6, 2012 order denying his motions for injunctive relief. In the notice of appeal, plaintiff

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requests an extension of time to file his appeal.

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On March 1, 2013, the Ninth Circuit Court of Appeals issued an order finding that

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plaintiff’s appeal was not filed within thirty days after entry of the December 6, 2012 order as

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required by Federal Rule of Appellate Procedure 4(a). The Ninth Circuit remanded this matter to

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this court to rule on plaintiff’s request for extension of time to file his appeal.

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In the notice of appeal, plaintiff states that he was unable to file a timely notice of

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appeal because the prison law library was closed or inaccessible due to the winter holiday. Based

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on this representation, the undersigned finds that plaintiff’s request for extension of time is supported
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by good cause. Fed. R. App. P. 4(5)(A)(ii) (motion for extension of time to file appeal must show

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excusable neglect or good cause).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for an extension of time to file his appeal is granted; plaintiff’s

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notice of appeal (Dkt. No. 71) is deemed timely; and

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2. The Clerk of the Court shall serve a copy of this order on the Ninth Circuit Court

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of Appeals.

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DATED: March 4, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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arm1054.app

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