Austin v. Lau

Filing 23

ORDER DENYING REQUEST TO EXTEND TIME TO APPEAL 22 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/21/12. (" In light of Plaintiff's pro se status, the Clerk is DIRECTED to nonetheless process Plaintiff's request as his n otice of appeal. Plaintiff may then direct his request for an extension of time to appeal to the appellate court.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notific ations received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Gerald Lewis Austin served by first class mail at the address of record on February 21, 2012. The Ninth Circuit Court of Appeals received the order electronically. Modified on 2/21/2012 (emt, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,

)
)
)
Plaintiff,
)
)
vs.
)
)
LAU,
)
)
)
Defendant.
_____________________________ )

CIV. NO. 11-00672 SOM/KSC
ORDER DENYING REQUEST TO
EXTEND TIME TO APPEAL

ORDER DENYING REQUEST TO EXTEND TIME TO APPEAL
On November 8, 2011, the court dismissed pro se
plaintiff Gerald Lewis Austin’s prisoner civil rights complaint
for failure to state a claim.

See ECF #4.

Plaintiff was granted

leave to amend to cure the complaint’s pleading deficiencies.
Id.

On November 28, 2011, Plaintiff moved to amend his

Complaint, submitted a proposed amended complaint, and requested
in forma pauperis status.

ECF #8, #13, #14.

On November 29,

2011, the court granted Plaintiff’s in forma pauperis
application.

ECF #15.

Plaintiff’s proposed amended complaint was virtually
identical to the original Complaint, however, and did not address
any of the court’s noted deficiencies.

See ECF #14.

On November

30, 2011, the court denied Plaintiff’s motion to amend the
complaint and dismissed this action for Plaintiff’s failure to
state a claim or cure the original complaint’s deficiencies.
#16.

Judgment was entered that day.

ECF #17.

ECF

On February 15, 2012, Plaintiff submitted a letter to
the Clerk of Court explaining that he intends to file a notice of
appeal in this action and seeks an extension of time to do so.
ECF #22.

Plaintiff says he needs time to make copies of his

documents before he submits a notice of appeal and an in forma
pauperis application for his appeal.1
The deadline for filing a notice of appeal in this
action was December 30, 2011.

See Fed. R. App. 4(a)(1).

That

date can be extended until January 29, 2012, under Rule 4(a)(5),
if the court construes Plaintiff’s letter as a motion for an
extension of time, and if Plaintiff’s motion shows excusable
neglect or good cause.

See Fed. R. App. P. 4(a)(5).

Plaintiff’s letter was signed on February 13, 2012,
however, and is therefore untimely.

Moreover, even if it was

timely, Plaintiff provides no adequate explanation showing good
cause or excusable neglect for extending the time to appeal.
Fed. R. App. 4(a)(5)(A)(ii).

See

To the contrary, Plaintiff has

filed numerous actions, motions, amended pleadings, letters, and
exhibits in his recent cases, yet fails to provide any

1

Plaintiff submitted one letter that referenced two other
cases in which he is also intending to seek an extension of time
to appeal. See Austin v. Van Winkle, 1:11-cv-00691 SOM (closed
12/20/2011); Austin v. Padilla, 1:11-cv-00693 DAE (closed
12/19/2011). On February 16, 2012, Plaintiff submitted a
document in 1:11-cv-00693 DAE that appears to be a notice of
appeal, and a collection of documents in 1:11-cv-00691 SOM that
is unexplained.
2

justification to extend the time to appeal in this case, even if
the court had jurisdiction to do so.2

Plaintiff’s motion to

extend time to appeal is DENIED.
In light of Plaintiff’s pro se status, the Clerk is
DIRECTED to nonetheless process Plaintiff’s request as his notice
of appeal.

Plaintiff may then direct his request for an

extension of time to appeal to the appellate court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 21, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Austin v. Lau, Civ. No. 11-00672 SOM-KSC; psas\Non-dsp Ords\dmp 2012 Austin 11-672 SOM
(dny m.ext time to appeal)

2

Plaintiff has recently filed eight civil actions, most of
which were dismissed as frivolous or for failure to state a
claim. See Austin v. Kaawa, 1:10-cv-00693-SOM; Austin v. Papa
John's Pizza, 1:11-cv-00683-DAE-RLP; Austin v. Stevens,
1:11-cv-00690 SOM, Austin v. Van Winkle, 1:11-cv-00691 SOM,
Austin v. Tyler, 1:11-cv-00692 JMS, Austin v. Padilla,
1:11-cv-00693 DAE, Austin v. Momoa, 1:11-cv-00707 DAE, Austin v.
Mail Room, 1:11-cv-00708 JMS.
3