K'Napp v. Adams

          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 ...