Gruber v. Gedney et al

Filing 163

ORDERED that the Motion for Leave to File an Untimely Notice of Appeal (ECF No. 160 ) is DENIED. IT IS FURTHER ORDERED that Motion for Documents (ECF No. 161 ) is DENIED AS MOOT. Signed by Judge Robert C. Jones on 7/14/2020. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:15-cv-00543-RCJ-CLB Document 163 Filed 07/14/20 Page 1 of 2

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

RICHARD L. GRUBER,

10

Case No. 3:15-cv-00543-RCJ-CBC

Plaintiff,

11
vs.

ORDER

12
KAREN GEDNEY, et al.,

13
Defendant.

14
15

Plaintiff, an inmate in custody of Nevada Department of Corrections, moves this Court to

16

allow him to file an untimely notice of appeal in this case. He seeks to appeal a judgment that this

17

Court entered on September 12, 2019. His motion is dated February 24, 2020—167 days later. The

18

Court therefore denies Plaintiff’s motion as untimely. 1

19

Fed. R. App. P. 4 governs when a notice of appeal must be filed to be timely. It states, in

20

relevant part, “In a civil case, except as provided in Rule[] . . . 4(c), the notice of appeal required

21

by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment . . . .” Fed.

22

R. App. P. 4(a)(1)(A). For inmates, a court should consider a notice timely “if it is deposited in the

23

1

24

Plaintiff also moves this Court to send him a docket sheet and a copy of every document on file
to pursue the appeal. As the Court denies his motion for leave to file a notice of appeal, the Court
denies this motion as moot.
1 of 2

Case 3:15-cv-00543-RCJ-CLB Document 163 Filed 07/14/20 Page 2 of 2

1

institution’s internal mail system on or before the last day for filing” and “it is accompanied by . . .

2

evidence (such as a postmark or date stamp) showing that the notice was so deposited and that

3

postage was prepaid.” Fed. R. App. P. 4(c). A district court however may extend the time to file a

4

notice of appeal if a litigant shows “excusable neglect or good cause,” but a party must “so move[]

5

no later than 30 days after the time [to file a notice of appeal] prescribed by this Rule 4(a) expires.”

6

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

7

As the Court entered its judgment on September 12, 2019, the deadline for Plaintiff to mail

8

his notice of appeal was by October 14, 2019. Even assuming that Plaintiff has shown good cause

9

or excusable neglect, his motion needed to be mailed within thirty days of October 14, 2019, which

10

was November 13, 2019. Plaintiff however mailed his motion on February 24, 2020. The Court

11

accordingly denies the motion as untimely.
CONCLUSION

12
13
14
15
16
17
18

IT IS HEREBY ORDERED that the Motion for Leave to File an Untimely Notice of
Appeal (ECF No. 160) is DENIED.
IT IS FURTHER ORDERED that Motion for Documents (ECF No. 161) is DENIED AS
MOOT.
IT IS SO ORDERED.
Dated July 14, 2020.

19
20
21

_____________________________________
ROBERT C. JONES
United States District Judge

22
23
24
2 of 2