Granado v. LNU et al
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 51 Plaintiff's Motion to Extend Time to File Appeal and for Reconsideration. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AUGUSTIN F. GRANADO, Jr.¸
DAVID OTERO, and ERIC R. FIERRO,
Civ. No. 16-859 KG/SCY
FNU LNU, Wardens, Lea County Correctional
Facility, Otero County Prison Facility, Santa
Fe P.N.M. South, et al.,
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Augustin Granado’s Motion to Extend Time to File Appeal
and for Reconsideration (“Motion”), filed May 5, 2017. Plaintiff seeks relief from the Court’s
February 2, 2017 decision dismissing his pro se civil rights complaint. (Docs. 46 and 47).
Defendants were not served with the Motion and did not respond. Having considered the Motion
and applicable law, the Court denies all requested relief.
Plaintiff filed a civil rights complaint seeking damages and release from prison for “[a]ll
actions over a period of 18+ years of incarceration” (Doc. 1). He also sought leave to proceed in
forma pauperis (Doc. 9). Plaintiff alleged, among other things, that prison officials were
preventing him from sending legal mail. The Court (Hon. Steven Yarbrough) ordered a limited
Martinez report to investigate the claim but quashed it after Plaintiff continued to send multiple
letters and motions. (Doc. 13). On October 25, 2016, the Court dismissed the “kitchen-sink”
complaint but granted leave to amend. (Doc. 21).
Plaintiff filed a 65-page amended complaint on January 6, 2017. (Doc. 37). He raised
over a hundred claims against various prison officials and state agencies. Plaintiff also asserted,
once again, that he was prevented from sending legal mail. By a memorandum opinion and
judgment entered February 2, 2017, (together, “Judgment”) the Court dismissed the amended
complaint. (Docs. 46 and 47). The Court determined Plaintiff’s “shotgun” allegations that his
rights were violated in hundreds of ways failed to state a claim under 28 U.S.C. § 1915(e)(2).
Plaintiff filed the instant Motion three months later. He seeks an extension of the time to
appeal the Judgment. He also appears to challenge the Court’s decision to rule without taking
evidence or appointing counsel, and renews his argument that prison officials are preventing him
from sending legal mail. The Court construes the latter arguments as requests for relief from a
final judgment pursuant to Fed. R. Civ. P. 60(b).
1. Extending the Appeal Period
An appeal in a civil case must be filed within 30 days after entry of the judgment. Fed. R.
App. P. 4(a)(1)(A); 28 U.S.C. § 2107(a). The district court may extend the appeal period if “a
party so moves no later than 30 days” after it expires. Fed. R. App. P. (4)(a)(5)(A). See also 28
U.S.C. § 2107(c). Thus, the motion for extension must generally be filed within 60 days after
entry of the judgment. Id. The only exception is if the movant did not receive notice of the
judgment within 21 days of its entry, and no party would be prejudiced by a further extension.
Fed. R. App. P. (4)(a)(6); 28 U.S.C. § 2107(c).
The Tenth Circuit has held that where the motion is “not timely under either Fed. R. App.
P. 4(a)(5) or Fed. R. App. P. 4(a)(6), the district court lacks authority to grant any relief from the
filing deadline.” Coots v. Allbaugh, 656 Fed. App’x 385, 386 (10th Cir. 2016) (unpublished)
(interpreting Fed. R. App. P. 26(b)). See also Certain Underwriters at Lloyds of London v.
Evans, 896 F.2d 1255, 1256 (10th Cir. 1990) (district courts are “expressly prohibit[ed] [from
granting] extensions of time for filing a notice of appeal beyond the time limits set out in [Rule
The Judgment was entered on February 2, 2017, and the 30-day appeal period expired on
March 6, 2017. See Fed. R. App. P. 26(a)(1) (governing the computation of time). Plaintiff does
not argue he did not receive timely notice of the Judgment, which was mailed to his address of
record on the date of entry. Plaintiff therefore needed to move for an extension by April 5, 2017,
which is 30 days after the expiration of the appeal period. Because he did not file the Motion
until May 5, 2017, it must be denied as untimely.
2. Fed. R. Civ. P. 60(b)
The Court discerns that Plaintiff also moves for relief from the Judgment under Fed. R.
Civ. P. 60(b). Such relief is discretionary and is generally only warranted in exceptional
circumstances. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Grounds for
relief include, inter alia, mistake, inadvertence, surprise, excusable neglect, newly discovered
evidence, and fraud. See Fed. R. Civ. P. 60(b)(l)-(6).
Having reviewed the Judgment, the record, and the Motion, the Court concludes that none
of those grounds exist here. Plaintiff does assert his evidence is newly discovered; he complains
the Court declined to consider it before dismissing his complaint. However, courts are not
required to review exhibits or allow discovery when screening in forma pauperis complaints
under 28 U.S.C. § 1915(e)(2). See Chance v. Vandiver, 620 Fed. App’x 678, 679 (10th Cir.
2015) (unpublished) (to survive screening under § 1915, the submission must include a “short
and plain statement” containing “enough facts that discovery might suggest an evidentiary basis
for the claim”); Local Rule 10.4 (“Exhibits are not attached to a pleading unless the documents
attached form the basis for the action or defense.”).
Plaintiff’s remaining arguments do not justify relief under Fed. R. Civ. P. 60(b) because
they rehash “the same issues already addressed and dismissed by the [C]ourt.” Van Skiver, 952
F.2d at 1243. The Motion, like both complaints, recites that prison officials are mismanaging
Plaintiff’s trust account to prevent him from sending legal mail. The Court investigated this
claim and dismissed it, as Plaintiff met key deadlines and filed over 33 documents in connection
with his civil rights complaint. (Doc. 13). Plaintiff’s motions to appoint counsel were also
previously considered and rejected, and there are no grounds to appoint counsel at this stage in
the case. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (district
courts have discretion to deny a motion to appoint counsel and will only be reversed in “extreme
cases where the lack of counsel results in fundament unfairness”). Consequently, Plaintiff is not
entitled to relief under Fed. R. Civ. P. 60(b).
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Extend Time to File Appeal
and for Reconsideration (Doc. 51) is denied.
UNITED STATES DISTRICT JUDGE
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