Franklin v. Brown et al

Filing 40

ORDER by Judge Yvonne Gonzalez Rogers granting 34 Motion for Extension of Time to File Appeal to March 2, 2017. (Attachments: # 1 Certificate/Proof of Service)(fsS, COURT STAFF) (Filed on 4/25/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY ANTHONY FRANKLIN, Case No. 15-cv-04755-YGR (PR) Plaintiff, 8 ORDER GRANTING AN EXTENSION OF TIME TO APPEAL v. 9 10 GEORGE GIURBINO, et al., Defendants. United States District Court Northern District of California 11 12 This federal civil rights action, now closed, was filed pursuant to 42 U.S.C. § 1983 by a 13 pro se state prisoner. On January 3, 2017, the Court granted Defendants’ motion to dismiss the 14 Eighth Amendment claims against them, upon resolving the issue of qualified immunity asserted 15 in their Rule 12(b)(6) motion. Dkt. 32. The Court also dismissed the remaining Eighth 16 Amendment claims against the unserved Defendants with prejudice. See id. The Court entered 17 judgment on the same date. Dkt. 33. 18 On March 2, 2017,1 Plaintiff filed a motion to extend the time to appeal under Federal Rule 19 of Appellate Procedure 4(a)(5) due to lock downs at the prison, which have prevented him from 20 filing a timely appeal. Dkt. 34. While the record shows that Plaintiff filed a notice of appeal on 21 March 7, 2017 (see dkt. 35), the Court construes the March 2, 2017 motion as a notice of appeal. 22 In an Order dated April 20, 2017, the Ninth Circuit Court of Appeals noted as follows: 23 A review of the record demonstrates that the March 7, 2017 notice of appeal was not filed or delivered to prison officials within 30 days after entry of the January 3, 2017 judgment. However, 24 25 1 26 27 28 Plaintiff’s motion was served to prison officials for mailing on March 2, 2017, and it was stamped “filed” by the Clerk of the Court on March 7, 2017. See Dkt. 34. As a pro se prisoner, Plaintiff receives the benefit of the prisoner mailbox rule, which deems most documents filed when the prisoner gives them to prison officials to mail to the court. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Because the motion was served on prison officials for mailing on March 2, 2017, the Court will deem the motion filed as of that date. appellant filed a timely motion for an extension of time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5), which was served on March 2, 2017 and received by the district court on March 7, 2017. The district court has not ruled on that motion. 1 2 3 Accordingly, this appeal is remanded to the district court for the limited purpose of allowing that court to rule on appellant’s March 7, 2017 motion. 4 5 The district court is requested to serve a copy of its decision on this court at its earliest convenience. Briefing is stayed pending further order of this court. 6 7 Dkt. 39 at 1. Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal “be 8 9 filed with the clerk of the district court within 30 days after the entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1). Relief from the deadline for a timely notice of appeal 11 United States District Court Northern District of California 10 may be obtained by a motion in the district court under Rule 4(a)(5), which allows for an 12 extension of time if the party requests it within thirty days of the expiration of the time to file the 13 notice and shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5). Here, Plaintiff filed his motion to extend the time to appeal within thirty days of the 14 15 expiration of the time to file his notice of appeal (February 2, 2017), and the request shows good 16 cause. Accordingly, the Court GRANTS Plaintiff an extension of time to appeal nunc pro tunc to 17 March 2, 2017, the date he filed the instant motion, which has also been construed as a notice of 18 appeal. 19 The Clerk shall forward a copy of this Order to the Ninth Circuit. 20 This Order terminates Docket No. 34. 21 IT IS SO ORDERED. 22 23 24 Dated: April 25, 2017 ______________________________________ YVONNE GONZALEZ ROGERS United States District Judge 25 26 27 28 2

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