UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 25, 2012
AARON JAMES PIERCE,
DR. E. FLORES, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER FINDING ON REMAND THAT NOTICE OF APPEAL LACKS SUFFICIENT GROUNDS TO CONSTRUE AS MOTION FOR EXTENSION OF TIME TO APPEAL OR TO REOPEN PERIOD WITHIN WHICH TO APPEAL, AND DIRECTING CLERK'S OFFICE TO SERVE ORDER ON APPELLATE COURT (Docs. 40 and 49)
Plaintiff Aaron James Pierce, a prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 20, 2010. The action was dismissed on September 19, 2011, for failure to state any claims upon which relief may be granted, and Plaintiff filed a notice of appeal on November 7, 2011. On January 11, 2012, the Court of Appeals for the Ninth Circuit remanded the appeal to the district court for the limited purpose of considering whether Plaintiff's notice of appeal contains language which should be construed as a motion under Federal Rule of Appellate Procedure 4(a)(5) or (6) and if so, whether it should be granted.
The Court has reviewed Plaintiff's notice of appeal and finds that it lacks sufficient grounds upon which to construe it as a motion seeking an extension of time to appeal. Fed. R. App. P. 4(a)(5). Plaintiff does not address the untimeliness of his appeal or seek any relief related to having filed an untimely appeal. Further, even if so construed, the notice does not set forth excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(ii).
The notice of appeal also lacks sufficient grounds upon which to construe it as a motion seeking to reopen the time to appeal. Fed. R. App. P. 4(a)(6). Even if so construed, there is no basis presented for finding that Plaintiff did not receive notice of entry of judgment, and the filing of the appeal on November 7, 2011, instead evidences Plaintiff's receipt of the dismissal and judgment orders. Fed. R. App. P. 4(a)(6)(A).
Accordingly, the Court HEREBY FINDS on remand that Plaintiff's notice of appeal lacks sufficient grounds to construe it as a motion under Federal Rule of Appellate Procedure 4(a)(5) or (6), and even if so construed, the notice lacks grounds for granting relief under either section of the rule. The Clerk's Office SHALL serve a copy of this order on the appellate court.
IT IS SO ORDERED.
© 1992-2012 VersusLaw Inc.