TALLEY v. KING et al
Filing
127
ORDER re 126 Notice filed by QUINTEZ TALLEY. Plaintiff's request is granted and it is ORDERED that the time for Plaintiff to file an appeal is extended under Federal Rule of Appellate Procedure 4(a)(5) to allow the filing of his appeal nunc pro tunc. Signed by Magistrate Judge Cynthia Reed Eddy on 2/23/2018. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
QUINTEZ TALLEY,
Plaintiff,
v.
C/O R. KING and C/O ORBASH,
Defendants.
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Civil Action No. 2: 16-cv-0152
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM ORDER1
Presently before the Court is a “Notice” filed by Plaintiff, Quintez Talley, requesting the
Court to reinstate his appellate rights. (ECF No. 126).
On October 17, 2017, following the return of a jury verdict in favor of Defendants in this
case (ECF No. 110), the Court entered judgment in favor of Defendants and against Plaintiff.
(ECF No. 111). Thereafter, Plaintiff filed a timely Motion for New Trial. (ECF No. 115). After
briefing by the parties, the Court denied the motion for new trial on January 4, 2018.
Pursuant to Federal Rule of Appellate Procedure 4(a)(4)(A)(v), Plaintiff had 30 days, or
until Monday, February 5, 2018, to appeal from the judgment. A notice of appeal has not been
filed in this case.
On February 21, 2018,2 the Court received the instant Notice in which Plaintiff represents
that from December 15, 2017, until February 5, 2018, he was “committed to the Psychiatric
Observation Cell at SCI Graterford” and although he was transferred to SCI-Fayette he was
unable to access his legal property until February 9, 2018.
1.
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily
consented to jurisdiction by a United States Magistrate Judge. See ECF Nos. 11 and 16.
2
The Notice was dated February 14, 2018.
1
Federal Rule of Appellate Procedure 4(a)(1) requires that a notice of appeal “be filed with
the district clerk within 30 days after the date of entry of judgment or order appealed from.”
Fed.R.App.P. 4(a)(1)(A). The judgment order was entered on October 17, 2017; however, the
motion for new trial was denied on January 4, 2018. By the terms of Rule 4(a)(1) and
4(a)(4)(A)(v), Plaintiff had until February 5, 2018, to file a notice of appeal. He did not file a
notice of appeal by this deadline.
Federal Rule of Appellate Procedure 4(a)(5) provides that “the district court may extend
the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time
prescribed by this Rule (4)(a) expires; and (ii) regardless of whether its motion is filed before or
during the 30 days after the prescribed by this Rule 4(a) expires, that party shows excusable
neglect or good cause.” Fed.R.App.P. 4(a)(5). The Advisory Committee Notes to Rule 4(a)(5)
state that “despite the text of Rule 4(a)(5)(A), most of the courts of appeals have held that the
good cause standard applies only to motions brought prior to the expiration of the original
deadline and that the excusable neglect standard applies only to motions brought during the 30
days following the expiration of the original deadline.”
See Fed.R.App.P. 4(a)(5), 2002
Advisory Committee Note. (emphasis added). Further, the 2002 Advisory Committee Notes also
explain that “good cause” and “excusable neglect” are not interchangeable and one is not
inclusive of the other.” The excusable neglect standard applies in situations in which there is
fault; . . . The good cause standard applies in situations where there is no fault - excusable or
otherwise.” Id.
Because the instant request was brought after the expiration of the original deadline, the
Court will use the “excusable neglect” standard. District courts within the Third Circuit apply a
case-by-case analysis in determining whether an appellant has demonstrated excusable neglect.
2
See Consolidated Freightways Corp. of Delaware v. Larson, 827 F.2d 916, 918 n.3 (3d Cir.
1987), cert. denied sub non, Consolidated Freightways Corp. of Delaware v. Secretary of
Transp. of Pa., 484 U.S. 1032 (1988). In Larson, our appellate court enumerated factors for
courts to consider in determining the issue of excusable neglect: (1) whether the inadvertence
reflects professional incompetence such as ignorance of the rules of procedure; (2) whether the
asserted inadvertence reflects an easily manufactured excuse incapable of verification by the
court; (3) whether the tardiness results from counsel’s failure to provide for a readily foreseeable
consequence; (4) whether the inadvertence reflects a complete lack of diligence; and (5) whether
the court is satisfied the inadvertence resulted despite counsel’s substantial good faith efforts
toward compliance. Id.
In this case, the Court finds that the failure to file a timely appeal was a result of Plaintiff
being transferred to the Psychiatric Observation Cell for approximately 72 days and thereafter
being transferred to a different DOC facility, which resulted in him not having access to his legal
property until February 9, 2018. The Court finds that the Larson factors support a finding of
excusable neglect.
AND NOW, this 23rd day of February, 2018, upon consideration of Plaintiff’s request to
reinstate his direct appeal rights (ECF No. 126), Plaintiff’s request is GRANTED and it is
ORDERED that the time for Plaintiff to file an appeal is extended under Rule 4(a)(5) to allow
the filing of his appeal nunc pro tunc.
BY THE COURT:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
3
cc:
QUINTEZ TALLEY
KT 5091
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450
(via U.S. First Class Mail)
Timothy Mazzocca
Office of Attorney General
(via ECF electronic notification)
4
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