United States District Court, E.D. California
ORDER GRANTING IN PART PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE (DOC. NO. 167) ORDER GRANTING
PLAINTIFF’S MOTION TO REOPEN TIME TO FILE APPEAL (DOC.
NO. 168) 14-DAY DEADINE TO FILE APPEAL ORDER FOR CLERK TO
SEND COPIES TO PLAINTIFF ERIC
Eric
Charles Rodney K’napp (“Plaintiff”) is a
state prisoner proceeding pro se with this civil rights
action filed pursuant to 42 U.S.C. § 1983. On September
1, 2015, the magistrate judge issued findings and
recommendations, recommending that defendants’ October
22, 2014 motion for summary judgment be granted. (Doc. No.
154.) On December 3, 2015, the court adopted the findings and
recommendations, judgment was entered in favor of defendants
and the case was closed. (Doc. Nos. 164, 165.)
On
March 9, 2016, plaintiff filed a request for judicial notice
(Doc. No. 167), and on March 31, 2016, plaintiff filed a
motion to reopen the time in which to file an appeal (Doc.
No. 168). Defendants have not filed any opposition to either
motion.
REQUEST
FOR JUDICIAL NOTICE
The
court may take judicial notice of facts “not subject to
reasonable dispute” either because they are “(1)
generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001), accord
United States v. Ritchie, 342 F.3d 903, 908–09
(9th Cir. 2003) (citing Fed.R.Evid. 201(b)). The court may
take judicial notice of court records. Valerio v. Boise
Cascade Corp., 80 F.R.D. 626, 635 n.l (N.D. Cal. 1978),
aff’d, 645 F.2d 699 (9th Cir. 1981).
Plaintiff
requests the court take judicial notice of the fact that he
timely mailed objections to the magistrate judge’s
September 1, 2015 findings and recommendations on November
24, 2015, and the fact that this case was closed on December
3, 2015. The fact plaintiff mailed objections to the court on
a particular date appears to be an inappropriate subject for
judicial notice, because it is subject to reasonable dispute.
In any event, the court concludes that judicial notice of
this fact is unnecessary because plaintiff’s objections
to the findings and recommendations in question were deemed
timely filed and were fully considered by the court in
adopting the magistrate judge’s findings and
recommendations. (Doc. Nos. 162 (granting plaintiff an
extension to file objections by December 7, 2015), 164
(noting plaintiff’s objections).) Based on this
court’s records, the undersigned takes judicial notice
that this case was closed on December 3, 2015. (See
Doc. No. 164.)
Plaintiff
asserts that since receiving the court’s order dated
November 24, 2015, he has not received anything else from the
court, let alone anything notifying him that his case was
closed. Plaintiff requests copies of all orders and other
documents filed in this case after November 24, 2015, and a
copy of the Court’s docket sheet listing all documents
that have ever been filed in this case. The court will
provide plaintiff with copies of orders entered in this case
after November 24, 2015, as well as a copy of the docket
sheet for this case.
Plaintiff
also requests that the court reopen this case but provides no
reason for the granting of such relief. However, as discussed
below, the court will grant plaintiff’s motion to
reopen the time to file an appeal. Accordingly,
plaintiff’s request (Doc. No. 167) is granted in part.
MOTION
TO REOPEN TIME TO FILE APPEAL
Rule
4(a)(6) of the Federal Rules of Appellate Procedure provides
the exclusive means for extending appeal time for failure to
learn that judgment has been entered. In re
Alexander, 197 F.3d 421, 425 (9th Cir. 1999) (quoting
16A Charles Alan Wright et al., Federal Practice and
Procedure § 3590.6 at 228 (3d ed.1999)); Nunley v.
City of L.A., 52 F.3d 792, 799 (9th Cir. 1995); see
also Baker v. California Youth Auth., No. 98-56962, 188
F.3d 512 (9th Cir. 1999) (“Rule 4(a)(6), not Rule
4(a)(5), covers the situation where a party’s failure
to receive notice of an order precludes a timely
appeal.”) (citing Latham v. Wells Fargo Bank,
N.A., 987 F.2d 1199, 1202 (5th Cir. 1993).)
Rule
4(a)(6) of the Federal Rules of Appellate Procedure provides:
(6)Reopening
the Time to File an Appeal. The district court may reopen the
time to file an appeal for a period of 14 days after the date
when its order to reopen is entered, but only if all
of the following conditions are satisfied:
(A) the court finds that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order sought to be appealed within
21 days after entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure ...