Hay v. California Prison Health Care Receivership Corp. et al

Filing 150

AMENDED ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND TIME TO FILE A NOTICE OF APPEAL. Signed by Judge Richard Seeborg on 10/4/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 10/4/2010)

Hay v. Sillen et. al.

Doc. 150

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No. C 09-2373 RS (PR) ORDER EXTENDING TIME

*E-Filed 10/4/10*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

JOE VERNON HAY, Plaintiff, v. ROBERT SILLEN, et al., Defendants. /

No. C 09-2373 RS (PR) AMENDED ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND TIME TO FILE A NOTICE OF APPEAL

This is a civil rights action filed by a pro se state prisoner pursuant to 42 U.S.C. § 1983. Judgment was entered in favor of defendants on August 23, 2010. Plaintiff now moves for an extension of time to file a notice of appeal (Docket No. 145). An appeal of right may be taken only by filing a valid notice of appeal in the district court within the time allowed by Fed. R. App. P. ("FRAP") 4. See FRAP 3(a)(1). The notice of appeal must be filed within 30 days after judgment is entered. See FRAP 4(a)(1). Here, a timely notice of appeal needed to have been filed on or before September 22, 2010. That time has passed and plaintiff has not yet filed a notice of appeal.

Dockets.Justia.com

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Relief from the deadline for filing a notice of appeal may be obtained by a motion in the district court under FRAP 4(a)(5) (motion for an extension of time) or 4(a)(6) (motion to reopen time to file appeal). FRAP 4(a)(5) allows a motion for an extension of time if the party requests it within thirty days of the expiration of the time to file the notice and shows an excusable neglect or good cause. Plaintiff's motion was signed on September 15, 2010, and therefore is timely filed within the meaning of FRAP 4(a)(5). (Though stamped as received by this Court on September 23, for purposes of the present motion the Court assumes that plaintiff put the motion in the prison mail the day he signed it and uses that as the filing date under the prisoner mailbox rule. See generally Houston v. Lack, 487 U.S. 266, 276 (1988).) "No extension under this rule 4(a)(5) may exceed 30 days after the expiration of the prescribed time [the prescribed time being 30 days from the date of entry of judgment] or 14 days after the date when the order granting the motion is entered, whichever is later." FRAP 4(a)(5)(C). Here, that is 30 days from September 22, 2010. Accordingly, plaintiff must file his notice of appeal on or before October 22, 2010. This order supersedes the Court's September 28, 2010 order regarding plaintiff's motion (Docket No. 149), an order that is hereby VACATED. IT IS SO ORDERED. DATED: October 4, 2010 RICHARD SEEBORG United States District Judge

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No. C 09-2373 RS (PR) ORDER EXTENDING TIME