Turner v. Larsen et al
Filing
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ORDER by Judge Hamilton denying 11 Motion to Vacate and granting Motion to reopen time to file notice of appeal. (pjhlc1, COURT STAFF) (Filed on 7/2/2012) (Additional attachment(s) added on 7/2/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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STEPHEN B. TURNER,
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v.
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For the Northern District of California
United States District Court
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Plaintiff,
SUSIE LARSEN, et al.,
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No. C 11-6191 PJH
ORDER DENYING MOTION TO VACATE
JUDGMENT, AND GRANTING MOTION
TO REOPEN TIME TO FILE NOTICE OF
APPEAL
Defendants.
_______________________________/
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Plaintiff Stephen B. Turner filed the complaint in this case on December 9, 2011,
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alleging both federal and state law claims. Also on December 9, 2011, he filed an
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application to proceed in forma pauperis (“IFP”). On April 19, 2012, the court dismissed the
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federal claims pursuant to 28 U.S.C. § 1915, with prejudice, and declined to hear the state
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law claims. Judgment was entered, also on April 19, 2012.
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On June 28, 2012, plaintiff filed a motion under Federal Rule of Civil Procedure 60,
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seeking to vacate the judgment. Plaintiff requests that the court review the complaint “de
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novo,” arguing that “the judgment is void because it is erroneously predicated on a 42
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U.S.C. § 1893 action when in fact the complaint is actually based on 28 U.S.C. §§ 1331
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and 1333.” In the alternative, he requests that the court allow him to file a notice of appeal.
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As an initial matter, the court finds no basis for vacating the judgment, and the Rule
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60 motion is therefore DENIED. Sections 1331 and 1333 are statutes relating to federal
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court jurisdiction, and do not provide a substantive basis for any cause of action. The
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existence of a cause of action is conceptually distinct from the presence of jurisdiction.
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Molina v. Richardson, 578 F.2d 846, 849-50 (9th Cir. 1978). Because plaintiff alleged
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federal constitutional claims of violation of due process, the court properly interpreted the
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claims as arising under 42 U.S.C. § 1983.
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Section 1983, while in itself not a source of substantive rights, provides a cause of
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action for the vindication of federal rights elsewhere conferred. Graham v. Connor, 490
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U.S. 386, 393-94 (1989). Section 1983 was enacted to “give a remedy to parties deprived
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of constitutional rights, privileges and immunities by an official’s abuse of his position,”
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Monroe v. Pape, 365 U.S. 167, 172 (1961) – that is, to provide a remedy against individual
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officials who violate constitutional rights.
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Thus, the only question is whether the time to file a notice of appeal should be
reopened. Plaintiff claims that he was held at John George Psychiatric Hospital, heavily
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For the Northern District of California
United States District Court
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medicated, from April 11 to April 13, 2012, and that he was held in the Alameda County Jail
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(Santa Rita) on a parole violation from April 13 to June 20, 2012. He asserts that he did
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not receive the order and judgment until he got out of jail. He also contends that “equitable
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tolling” should apply to permit him to file a late notice of appeal, because he was unable to
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continue to prosecute his lawsuit while he was in jail (even though he claims he did not
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know about the dismissal). The court interprets this as a request to extend the time for
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filing a notice of appeal.
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Federal Rule of Appellate Procedure 4(a)(1)(A) states that, in a civil case, a notice of
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appeal “must be filed with the district clerk within 30 days after the judgment of the order
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appealed from.” Fed. R. App. P. 4(a)(1)(A). The court may extend the time for filing an
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appeal under Rule 4(a)(5) upon a motion filed “no later than 30 days” after the time for filing
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the notice has expired, and upon a showing of “excusable neglect or good cause.” Fed. R.
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App. P. 4(a)(5)(A). “No extension under . . . Rule 4(a)(5) may exceed 30 days after the
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prescribed time . . . .” Fed. R. App. P. 4(a)(5)(C). Here, more than 30 days have elapsed
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since the judgment was entered, and plaintiff’s request for an extension was not filed within
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those 30 days. Thus, there is no basis under Rule 4(a)(5) for granting plaintiff an
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extension.
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Under Rule 4(a)(6), however, the district court may reopen the time to file an appeal
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for a period of 14 days from the date the order to reopen is issued, if the court finds the
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following – that the moving party did not receive notice of the entry of the judgment or order
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sought to be appealed within 21 days of the date of entry; and that the motion to reopen is
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filed within 180 days after the judgment is entered, or within 14 days after the moving party
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receives notice of the entry of the judgment or order, whichever is earlier; and that no party
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would be prejudiced. Fed. R. App. P. 4(a)(6).
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Here, the second two requirements are met, because fewer than 180 days have
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passed since the date the judgment was entered, and there is no indication that any party
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would be prejudiced. (Indeed, it appears that defendants have not been served.) Thus,
the only question is whether plaintiff received notice of the entry of judgment within 21 days
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For the Northern District of California
United States District Court
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of the date it was entered. Copies of the order of dismissal and the judgment were mailed
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to plaintiff’s address of record on April 20, 2012, at which point, according to plaintiff, he
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was in custody. Plaintiff states that he did not receive notice of the entry of judgment until
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after he was released from custody on June 20, 2012, which is more than 21 days after the
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date of entry of judgment.
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Accordingly, the court GRANTS the motion to reopen the time to file a notice of
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appeal. Any notice of appeal must be filed on or before July 19, 2012, which includes the
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14 days allowable under Rule 4(a)(6), plus the three days allowable under Federal Rule of
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Civil Procedure 6(d). In addition, the court cautions plaintiff that he is required to keep the
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court informed of his current address. See Civ. L.R. 3-11.
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IT IS SO ORDERED.
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Dated: July 2, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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