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Mason v. Sandham

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 24, 2009

GLENN T. MASON, PLAINTIFF,
v.
M. SANDHAM, ET AL., DEFENDANTS.

ORDER

On August 31, 2007, findings and recommendations were issued recommending that this action be dismissed. On November 9, 2007, the assigned district judge adopted that recommendation and dismissed this action. Judgment was entered accordingly.

On November 21, 2007, plaintiff requested an extension of time to file and serve a notice of appeal. On November 29, 2007, the district judge assigned to this action granted plaintiff's request and gave plaintiff an additional 30 days to file and serve his notice of appeal from the district court's judgment. See Fed. R. App. 4(a)(5)(A) (allowing a district court to extend the time to file a notice of appeal). A timely notice of appeal is a jurisdictional prerequisite to appealing a district court's judgment. Fed. R. App. P. 4(a); Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007). Ordinarily, a party in a civil action must file the notice within 30 days after judgment is entered. Fed. R. App. P. 4(a). While plaintiff filed a request to proceed in forma pauperis on December 7, 2007, he failed to timely file a notice of appeal.

On July 11, 2008, however, plaintiff again requested leave to proceed in forma pauperis on appeal. Then, on October 29, 2008, plaintiff filed a second request for an extension of time to file a notice of appeal. Plaintiff's second request for an extension of time is untimely, however, and is therefore denied. See Fed. R. App. P. 4(a)(5)(C) ("[n]o extension . . . may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later"). This also renders plaintiff's request to proceed in forma pauperis on appeal moot.

Notwithstanding the judgment closing this case, plaintiff also filed on November 21, 2008, a request for appointment of counsel. Plaintiff's request for appointment of counsel is denied.

Accordingly, it is hereby ORDERED that plaintiff's October 29, 2008 request for an extension of time is denied. It is further ORDERED that plaintiff's November 21, 2008 motion for appointment of counsel is also denied.

Plaintiff is admonished that the court will issue no response to future filings by plaintiff in this action not authorized by the Federal Rules of Civil Procedure or Federal Rules of Appellate Procedure.

20090224

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