Guadarrama v. Landis

Filing 85

ORDER signed by Magistrate Judge Kendall J. Newman on 10/29/19 GRANTING 79 Motion for Extension of time in which to file an appeal and DENYING 79 Motion to Appoint Counsel. Plaintiff's notice of appeal 80 is deemed timely-filed. The clerk of the court is directed to serve a copy of this order on the U.S. Court of Appeals for the Ninth Circuit, Case No. 19-16604. (cc: USCA, 9th circuit) (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE GUADARRAMA,

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No. 2:16-cv-2671 JAM KJN P

Plaintiff,
v.

ORDER

C. RANDY LEWIS, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. On June 4, 2019, the district

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court granted defendants’ motions to dismiss. (ECF No. 75.) On June 11, 2019, judgment was

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entered. (ECF No. 76).

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Pending before the court is plaintiff’s motion for extension of time to file an appeal and

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requesting appointment of counsel. (ECF No. 79.) Plaintiff’s motion was filed on July 15, 2019,

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and signed on June 27, 2019. (Id.)

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An appeal “from a district court to a court of appeals may be taken only by filing a notice

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of appeal with the district clerk within the time allowed by Rule 4.” Fed. R. App. P. 3(a)(1). The

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notice of appeal “must be filed with the district clerk within 30 days after entry of the judgment or

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order appealed from.” Fed. R. App. P. 4(a)(1)(A). However, the district court may extend the

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time to file a notice of appeal if “a party so moves no later than 30 days after the time prescribed

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by this Rule 4(a) expires,” and “shows excusable neglect or good cause.” Fed. R. App. P.

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4(a)(5)(A).

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Here, plaintiff alleges that he did not receive the June 4, 2019 order issued by the district

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court until June 26, 2019. Plaintiff asserts he did not timely receive his copy of the June 4, 2019

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order due to his transfer and delayed receipt of his legal property. Moreover, plaintiff filed his

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notice of appeal no later than 30 days after the time for filing an appeal expired. Thus, good

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cause exists to grant plaintiff an extension of time in which to appeal the June 4, 2019 order, and

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the undersigned finds that plaintiff’s notice of appeal was timely-filed. Plaintiff’s appeal was

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previously processed to the appellate court. Therefore, the Clerk of the Court is directed to send a

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copy of this order to the Court of Appeals for the Ninth Circuit, Case No. 19-16604.

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In light of the district court’s order granting defendants’ motion to dismiss, the
undersigned finds the appointment of counsel is not warranted.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 79), construed as a request for

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extension of time in which to file an appeal, is granted;

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2. Plaintiff’s notice of appeal (ECF No. 80) is deemed timely-filed;

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3. Plaintiff’s motion for appointment of counsel (ECF No. 79) is denied; and

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4. The Clerk of the Court is directed to serve a copy of this order on the United States

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Court of Appeals for the Ninth Circuit, Case No. 19-16604.

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Dated: October 29, 2019

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/guad2671.ext.app

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