Grandinetti v. Martinez et al
Filing
12
ORDER DENYING MOTION TO EXTEND OR ENLARGE TIME TO APPEAL re 10 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/9/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Francis Grandinetti II served by first class mail at the address of record on June 10, 2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS A. GRANDINETTI, II,
#A0185087,
)
)
)
Plaintiff,
)
)
vs.
)
)
ACTING SERGEANT F. MARTINEZ, )
)
et al.,
)
)
Defendants.
_____________________________ )
CIV. NO. 15-00081 SOM/KSC
ORDER DENYING MOTION TO
EXTEND OR ENLARGE TIME TO
APPEAL
ORDER DENYING MOTION TO EXTEND OR ENLARGE TIME TO APPEAL
On March 30, 2015, the court dismissed this action
without prejudice to reopening upon payment of the civil filing
fees within twenty-eight days, pursuant to 28 U.S.C. § 1915(g).
See Doc. Nos. 4 and 5.
The court received and filed Plaintiff’s notice of
appeal (“NOA”) on June 1, 2015.
Doc. No. 9.
Plaintiff signed
and apparently tendered the NOA to prison authorities for mailing
to the court on or about May 28, 2015.
See Doc. No. 9-1.
The
court accepts this date as the NOA’s constructive date of filing;
see also Houston v. Lack, 487 U.S. 266, 273 (1988).
The NOA
states, “an appeal is taken within about 60 days from judgment
herein.
The federal-agent ‘90-day schedule’ is pled as
governing.”
Doc. No. 9.
On June 4, 2015, the court received and filed
Plaintiff’s motion for an extension of time to appeal, brought
pursuant to Federal Rule of Appellate Procedure 4(a).
10.
Doc. No.
Plaintiff states that the “60-day deadlines in [this case]
should end around May 30, 2015.”
Id.
The Motion was also signed
and apparently given to prison authorities for mailing on May 28,
2015.
I.
DISCUSSION
Plaintiff does not satisfy the requirements for
extending the time to file a notice of appeal or to reopen the
time to appeal.
First, notwithstanding Plaintiff’s
representations to the contrary, this action was not brought
against and does not otherwise involve federal parties.
Rather,
this case involves an incident that allegedly occurred at the
Saguaro Correctional Center (“SCC”).1
SCC, a private prison
located in Eloy Arizona, is owned and operated by the Corrections
Corporations of America.
See http://www.cca.com/locations.
The
Hawaii Department of Public Safety contracts with Corrections
Corporations of America to house several thousand Hawaii state
prisoners at SCC.
That neither makes SCC a federal correctional
facility nor makes Plaintiff a federal prisoner.
Plaintiff is
therefore not entitled to file his NOA within 60 days after the
1
Plaintiff complained that SCC prison officials accused him
of shredding his mattress, possessing a “shank,” and threatening
a guard. Compl., Doc. No. 1.
2
entry of judgment, as he argues.
Neither the United States, any
of its agencies, nor any United States officer or employee in an
individual or official capacity is identified as a party to this
action.
See Fed. R. App. P. 4(a)(B)(i-iv).
Plaintiff’s
unsupported claim that SCC is a “branch” of FDC-Honolulu, or that
this action is brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971), or is a
multi-district class action cannot transform a nonfederal party
into a federal actor.
Second, Plaintiff is not entitled to an extension of
time to file an NOA or to reopen the time to appeal.
Under Rule
4 of the Federal Rules of Appellate Procedure, a district court
may extend the time to file an NOA if a party moves no later than
thirty days after the time prescribed by Rule 4(a) expires, and
that party shows excusable neglect or good cause.
P. 4(a)(5)(A).
Fed. R. App.
Although Plaintiff moves within thirty days after
April 29, 2015, the date his time for appeal expired, he fails to
provide any explanation justifying a finding of excusable neglect
or good cause.
To find excusable neglect, the court must consider the
danger of prejudice to the nonmoving party, the length of the
delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the
reasonable control of the movant, and whether the moving party’s
3
conduct was in good faith.
See Pincay v. Andrews, 389 F.3d 853,
855 (9th Cir. 2004)(en banc).
While there is no prejudice to the
nonmoving parties here, who have not been served, and little
discernible impact on any judicial proceeding, Plaintiff
nonetheless fails to show excusable neglect.
Plaintiff clearly
knew the date this action was dismissed, as he calculates the
deadline for appeal as expiring sixty days thereafter.
Plaintiff’s only justification for the untimeliness of his NOA is
that he allegedly believed he had sixty days -- not thirty -- to
appeal.
Thus, the time to appeal was always within Plaintiff’s
reasonable control.
His failure to construe Rule 4 correctly is
not excusable neglect.
“Although the [appellate courts] have
generally recognized that ‘excusable neglect’ may extend to
inadvertent delays . . . inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute
‘excusable’ neglect.”
Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. Partnership, 507 U.S. 380, 391-92 (1993).
Moreover, the court finds no good cause for Plaintiff’s
failure to timely file his NOA, and cannot conclude from the
record that the appeal was taken in good faith.
Plaintiff has
three strikes pursuant to 28 U.S.C. § 1915(g), his pleadings fail
to show he was in imminent danger of serious physical injury when
he filed the complaint, and he does not even address this issue
in his NOA or in the Motion.
After considering the factors
4
weighing for and against allowing an extension, the court
determines that Plaintiff fails to demonstrate that his NOA is
untimely through excusable neglect or good cause.
The court may otherwise reopen the time to file an
appeal for a period of fourteen days after the date an order to
reopen is entered, if all of the conditions of Rule 4(a)(6) are
satisfied.
These conditions include a finding that (1) the
moving party did not receive notice under Federal Rule of Civil
Procedure 77(d) of the entry of the judgment or order sought to
be appealed within twenty-one days after entry; (2) the motion is
filed within 180 days after the judgment or order is entered or,
within fourteen days after the moving party receives notice under
Federal Rule of Civil Procedure 77(d) of the entry, whichever is
earlier; and (3) no party would be prejudiced.
See Fed. R. App.
P. 4(a)(6).
The docket reflects that Plaintiff was sent copies of
the Order dismissing this action and the judgment on March 30,
2015, and they were not returned.
See Doc. Nos. 4, 5.
There is
no other indication that Plaintiff failed to receive these
notices, and he does not argue this.
Rather, Plaintiff’s
statements make clear that he received these notices and was well
aware of the operative date from which the time to appeal ran.
Plaintiff is not entitled to have the time to appeal reopened
under Fed. R. App. P. 4(a)(6).
5
Plaintiff does not otherwise demonstrate a basis for
relief with regard to his untimely appeal.
Plaintiff’s NOA is
untimely and his Motion for an Extension of Time on Appeal is
DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 9, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Grandinetti v. Martinez, et al., 1:15-cv-00081 SOM/KSC; 3 Stks 2015; J:\PSA Draft
Ords\SOM\Grandinetti 15-81 SOM
(FRAP 4, ext. time app.).wpd
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?