Robledo-Valdez v. West et al

Filing 19

ORDER denying 18 Request for Leave to File Late Notice of Appeal by Judge Lewis T. Babcock on 7/9/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00196-LTB
CRAIG S. ROBLEDO-VALDEZ,
Plaintiff,
v.
JEWEL WEST,
DALE BURKE,
CHRIS BARR,
DANIEL DENT,
ANDREA NICHOLS,
JOSEPH KELEMAN,
REANNE WILL,
RHONDA HADRICK,
LESLIE PAYNE,
CARMEN ESTRADA,
CAROL SOARES,
SEAN FOSTER,
MR. RODECAPE,
DENNIS BURBANK,
KEITH NORDELL,
ANTHONY DeCESARO,
2 UNKNOWN D.O.C. TIME OPS. OFFICERS,
MARK FAIRBAIRN,
REGINA ROBERTS,
ANGELA TIDEMANN,
MR. MEISNER,
MS. JIMENEZ,
TRAVIS TRANI,
BRANDON WITZ,
SUSAN JONES,
MR. SPURLOCK,
PATSY HARTLEY,
TRACY SWINDLER,
MARSHALL GRIFFITH,
PAUL LARSON,
MR. SMITH,
MRS. DeFUSCO,
UNNAMED PAROLE BOARD MEMBER,
CHAIRMAN OF PAROLE BOARD,
LINDA MAIFELD,
LARRY WATSON,
TINA VALDEZ,
HEAD OF OFFENDER SERVICES,
DANIEL LAKE,
DANIEL BARBERO,
MS. MORRIS, and
JAMES SINNOTT,

Defendants.
ORDER
This matter is before the Court on the “Request for Leave to File Late Notice of
Appeal” (ECF No. 18) filed pro se by Plaintiff on July 1, 2013. Plaintiff seeks an
extension of time to file a notice of appeal from the Court’s Order of Dismissal (ECF No.
5) and the Judgment (ECF No. 6) entered in this action on March 6, 2013. Plaintiff
actually filed a Notice of Appeal (ECF No. 11) on June 14, 2013. In an order filed on
June 18, 2013, the United States Court of Appeals for the Tenth Circuit advised Plaintiff
that the Notice of Appeal appeared to be untimely. (See ECF No. 16.)
The Court must construe the “Request for Leave to File Late Notice of Appeal”
liberally because Plaintiff is not represented by an attorney. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110. For the reasons stated below, the “Request for Leave to File Late Notice of
Appeal” will be denied.
Pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a notice
of appeal in a civil case generally must be filed with the clerk of the district court within
thirty days after the judgment or order appealed from is entered. Pursuant to Rule
4(a)(5)(A), the Court may extend the time to file a notice of appeal if the party moves for
an extension of time within thirty days after the time provided in Rule 4(a) expires and
the party shows excusable neglect or good cause. Pursuant to Rule 4(a)(5)(C), an
extension of time to file a notice of appeal may not exceed thirty days after the time
provided in Rule 4(a) expires or fourteen days after an order granting an extension of
time is entered, whichever is later.
As noted above, the Court’s order dismissing this action and the final judgment
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were entered on March 6, 2013. Although Plaintiff alleges he “was wholly unaware of
this Court[‘]s decision to dismiss [this] case” (ECF No. 18 at 1), the Court notes that
Plaintiff filed a motion to reconsider (ECF No. 7) on March 28, 2013, in which he asked
the Court to reconsider the order dismissing this action. On April 3, 2013, the Court
entered an Order (ECF No. 8) denying the motion to reconsider. As the Tenth Circuit
has noted, the Court’s Order denying the timely motion to reconsider extended the
thirty-day period to file a notice of appeal until May 3, 2013. (See ECF No. 16 at 2.)
The Court finds that the “Request for Leave to File Late Notice of Appeal” is
untimely because it was filed more than thirty days after May 3, 2013. Furthermore,
even if the motion was timely, the Court also finds that Plaintiff fails to demonstrate
excusable neglect or good cause. Based on the motion to reconsider filed on March 28,
2013, it is apparent that Plaintiff was aware at that time that the instant action had been
dismissed. Although it is not clear when Plaintiff received notice that the Court denied
the motion to reconsider on April 3, 2013, any delay that did occur resulted from the fact
that Plaintiff did not file a notice of change of address advising the Court of his current
address until May 13, 2013. (See ECF No. 9.) Therefore, the “Request for Leave to
File Late Notice of Appeal” will be denied. Accordingly, it is
ORDERED that Plaintiff’s “Request for Leave to File Late Notice of Appeal” (ECF
No. 18) is DENIED.
DATED at Denver, Colorado, this 8th day of

July

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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