Chavez, Jr. v. Lane et al
Filing
90
MEMORANDUM AND OPINION ORDER. Plaintiff-Appellant's 89 Motion for an Extension of Time in which to file a challenge to the Final Judgment is DENIED as unnecessary. Plaintiff-Appellant's 89 Motion for an Extension of Time to file a notice of appeal is GRANTED. Signed by Magistrate Judge Judith K. Guthrie on 9/27/12. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
NAZARIO CHAVEZ, JR., #01539693
§
VS.
§
DARRON LANE, ET AL.
§
CIVIL ACTION NO. 9:11cv121
MEMORANDUM OPINION AND ORDER
Plaintiff Navario Chavez, Jr., proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. § 1983. The complaint was assigned to the undersigned pursuant to 28 U.S.C. § 636(c).
On August 20, 2012, the Court entered a Memorandum Opinion and Order dismissing this
case with prejudice for failure to exhaust administrative remedies, and entered Final Judgment
(docket entries #85, 86). Although Plaintiff filed two notices after judgment was entered, neither
related to the judgment and it was apparent from them that Plaintiff was unaware of judgment having
been entered when he filed them. He did not file an acknowledgment of receipt of the judgment, but
on September 25, 2012, he filed a Motion for a Time Extension (docket entry #89), marked as dated
September 20, 2012. In it, he seeks an extension of time due to a recent housing change and because
he apparently is in administrative segregation.
He actually makes two motions in one filing. He first requests an extension for more time
to answer the final judgment and to file objections with a memorandum of law and possibly to
amend his complaint, along with affidavits and declarations. Motion at ¶ 3. He then states that he
needs more time to file a notice of appeal, apparently meaning after the Court responds to his postjudgment motions. Id. at ¶ 4. In no case does he specify how long an extension he seeks.
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Plaintiff is advised that motions to alter or amend the judgment may be filed pursuant to Fed.
R. Civ. P. 59(e) no later than 28 days after the entry of the judgment. Alternatively, motions for
relief from final judgment may be made pursuant to Fed. R. Civ. P. 60(b)(1)-(6) after the 28-day
limitation, but must be made “within a reasonable time - and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment . . . .” Fed. R. Civ. P. 60(c)(1). Therefore, the Court will
not grant a specific extension of time in which to file such a motion.
As to Plaintiff’s motion for an extension of time to file a notice of appeal, normally a notice
of appeal must be filed with the District Court within 30 days after entry of the judgment. See Fed.
R. App. P. 4(a)(1)(A). A motion for extension of time may be granted if the motion is filed no later
than 30 days after the 30-day period above expires and, regardless of whether the motion is filed
before or during the 30 day period after the 30-day period above expires, if the movant shows
excusable neglect or good cause. See Fed. R. App. P. 4(a)(5)(A); Jackson v. Thaler, 395 Fed. Appx.
142, 143 (5th Cir. 2010), cert. denied, 131 S. Ct. 1497, 179 L. Ed. 2d 326 (2011). As an inmate
confined in an institution, a notice of appeal is timely if it is deposited in the institution’s internal
mail system on or before the last day for filing and timeliness may be shown by a declaration in
compliance with 28 U.S.C. § 1748 or a notarized statement, either of which must set forth the date
of deposit and state that first-class postage has been prepaid. In this case, although not notarized,
Plaintiff dated his motion September 20, 2012, and its envelope carried both first-class postage and
a return address to Plaintiff’s prison unit. See PageID #279.
Plaintiff’s request for an extension of time to file his notice of appeal until after he has
completed his challenges to the final judgment is inappropriate and cannot be granted as such.
However, Plaintiff has conveyed his intent to file a notice of appeal and filed a motion to extend the
time in which to do so, in light of his difficulty in communicating while in administrative
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segregation. It is unclear whether his motion was filed before or after the 30-day period after he
received his first notice of final judgment. However, even if 30 days has elapsed, he has shown good
cause by virtue of his confinement in administrative segregation, and he is otherwise within the time
limits embraced by Fed. R. App. P. 4(a)(5). Therefore, the Court will construe Plaintiff’s motion
as a Notice of Appeal and grant the motion for an extension of time in which to file it, to the extent
it is necessary. Cf. Hill v. Kervin, 326 Fed. Appx. 279, 280 (5th Cir. 2009) (construing a motion to
proceed in forma pauperis as a notice of appeal).
It is accordingly
ORDERED that Plaintiff-Appellant’s Motion for an Extension of Time (docket entry #89)
in which to file a challenge to the Final Judgment is DENIED as unnecessary. Plaintiff-Appellant
may file his challenge pursuant to Fed. R. Civ. P. 59(e) or 60(b), as appropriate according to the time
he files it. It is further
ORDERED that Plaintiff-Appellant’s Motion for an Extension of Time (docket entry #89)
to file a notice of appeal is GRANTED. The Clerk is directed to identify Plaintiff-Appellant’s
Motion at docket entry #89 as a constructive Notice of Appeal and enter it as such on the docket.
Plaintiff-Appellant is advised that he must now conform to the timing requirements of the Federal
Rules of Appellate Procedure for filing his briefs and other materials with the United States Court
of Appeals for the Fifth Circuit. If he wishes to proceed in forma pauperis on appeal, he must file
that motion in the District Court.
So ORDERED and SIGNED this 27 day of September, 2012.
____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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