Androshchuk v. Biter

Filing 45

ORDER signed by Magistrate Judge Allison Claire on 11/22/2017 that within 14 days of the filing of this order, respondent may file a response to 44 Motion for Extension of Time. (York, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 EDUARD VLADIMIROV ANDROSHCHUK, Petitioner, 13 14 15 ORDER v. M. ELIOT SPEARMAN, Respondent. 16 17 No. 2:15-cv-1204 MCE AC P Petitioner, a state prisoner proceeding pro se, has filed a response to an order from the 18 Ninth Circuit Court of Appeals and a motion for an extension of time to file a notice of appeal. 19 ECF Nos. 43, 44. 20 Petitioner has filed a response to an order from the Ninth Circuit Court of Appeals in 21 which he states he is voluntarily dismissing his appeal of this court’s March 31, 2017 order. ECF 22 No. 43. This court will not take any action with respect to plaintiff’s notice of voluntary 23 dismissal because it is moot, as the Ninth Circuit has already dismissed the appeal for failure to 24 prosecute. ECF No. 42. Petitioner is advised that in the future, filings intended for the Ninth 25 Circuit must be captioned for and sent to that court. 26 Petitioner has also filed a motion for extension of time to file a notice of appeal of the 27 October 11, 2017 order granting his motion for reconsideration and granting respondent’s motion 28 to dismiss (ECF No. 40). ECF No. 44. The certificate of service states that the motion was 1 1 mailed on November 5, 2017 (ECF No. 43 at 4), making it timely under the prison mailbox rule, 2 Houston v. Lack, 487 U.S. 266, 276 (1988). However, the motion was not received by the court 3 until November 20, 2017. Given the length of time between the asserted mailing date and the 4 date the motion was received by the court, respondent will be given an opportunity to respond to 5 the motion for extension, including whether the motion was timely. See Fed. R. App. P. 6 4(a)(5)(B). 7 Accordingly, IT IS HEREBY ORDERED that, within fourteen days of the filing of this 8 order, respondent may file a response to petitioner’s motion for an extension of time. 9 DATED: November 22, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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