Rogers v. Hierholzer et al

Filing 94

ORDER DENYING 92 Motion to Appoint Counsel ; GRANTING 92 Motion for Extension of Time to File, Plaintiff file his Notice of Appeal in this Court on or before November 25, 2019. Signed by Judge Elizabeth S. Chestney. (mgr) Modified on 10/1/2019, to edit text (mgr).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
AARON MICHAEL ROGERS,
Plaintiff,
vs.
RUSTY HIERHOLZER, Kerr County
Sheriff; SYLVIA FORAKER, Kerr County
Jail Administrator; DR. FNU SMITH.,
Kerr County Jail Doctor,
Defendants.

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CIVIL NO.
SA-16-CV-01171-FB

ORDER
Before the Court in the above-styled cause of action is Plaintiff’s Motion for Appeal and
Request for a [sic] Appeal Attorney and a [sic] Extension of Time [#92]. Plaintiff informs the
Court that he would like to appeal his case to the Fifth Circuit but requests an attorney to assist
him and an extension of at least 45 days to file the appeal. The Court will grant the request for
extension but deny the appointment of appellate counsel.
I. Extension of Time
Pursuant to Federal Rule of Appellate Procedure 4(a)(5), 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 Rule 4(a) expires; and (ii) the party shows excusable neglect or good cause. Rule
4(a) requires a notice of appeal to be filed with the district clerk within 30 days after entry of the
judgment or order appealed from. The Fifth Circuit has “held that appellants are entitled to make
a ‘good cause’ showing only if a motion for extension of time is filed before the initial thirty-day
appeal period expires,” otherwise, a showing of “excusable neglect” is required. Cowart v.
Ingalls Shipbuilding, No. 99–60034, 1999 WL 683819, at *1 (5th Cir. Aug. 4, 1999).
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The record reflects that the District Court signed its final judgment in this case on
September 4, 2019 [#91]. Plaintiff’s motion for extension of time to appeal was erroneously
filed with the Fifth Circuit on September 18, 2019 [#92-1], and the Fifth Circuit transmitted it to
this Court. Accordingly, the motion was timely filed under Rule 4(a)(5)(i) before the expiration
of the 30-day deadline for filing a notice of appeal, and Plaintiff therefore need only show good
cause for the requested extension, as opposed to excusable neglect. Cowart, 1999 WL 683819,
at *1. Plaintiff’s stated reason for requesting an extension of time is the fact that is currently
undergoing mental health treatment in prison and needs more time to either find an attorney or to
develop his appeal. The Court finds good cause for the motion and will grant Plaintiff 45
additional days to file his notice of appeal with this Court. Plaintiff’s original notice of appeal
was due October 11, 2019. Plaintiff’s new notice of appeal will be due 45 days thereafter or
November 25, 2019.
II. Appointment of Counsel
The Court will deny the request for the appointment of appellate counsel. Exceptional
circumstances are necessary to justify the appointment of counsel in a civil rights action. See
Sierra Club v. Clifford, 257 F.3d 444, 446 (5th Cir. 2001); Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir.1982). Plaintiff has not shown that such circumstances exist, and the Court declines
to appoint Plaintiff appellate counsel. See Bowen v. Quarterman, 339 Fed. App’x 479, 482 (5th
Cir. 2009).
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appeal and Request for a
[sic] Appeal Attorney and a [sic] Extension of Time [#92] is GRANTED IN PART AND
DENIED IN PART as follows:
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Plaintiff’s request for the appointment of appellate counsel is DENIED.

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Plaintiff’s request for an extension of time to file his appeal is GRANTED.

IT IS THEREFORE ORDERED that Plaintiff file his Notice of Appeal in this Court on
or before November 25, 2019.
SIGNED this 1st day of October, 2019.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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