Butler v. Moon et al
Filing
21
ORDER Denying 16 Motion for an Extension of Time to File a Notice of Appeal and / or a Motion for Reconsideration 16 , signed by Magistrate Judge Michael J. Seng on 11/2/11. (Verduzco, M)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT FOR THE
9
EASTERN DISTRICT OF CALIFORNIA
10
11
MAURICE F. BUTLER,
12
Plaintiff,
13
14
vs.
1:09-cv-02074-MJS (PC)
ORDER DENYING MOTION FOR AN
EXTENSION OF TIME TO FILE A
NOTICE OF APPEAL AND/OR A
MOTION FOR RECONSIDERATION
JONG YEOUNG MOON, et al.,
(ECF No. 16)
15
Defendants.
16
________________________________/
17
Plaintiff Maurice F. Butler (“Plaintiff”) is a prisoner proceeding pro se in a civil rights
18
action pursuant to 42 U.S.C. § 1983. On October 13, 2011, Plaintiff filed a motion seeking an
19
extension of time to file a notice of appeal and/or a motion for reconsideration of the Court’s
20
September 30, 2011, screening order. (Mot., ECF No. 16.) The September 30, 2011 screening
21
order dismissed with prejudice some of Plaintiff’s claims against Defendant Moon and all of
22
the claims against the remaining Defendants. (ECF No. 15.)
23
Pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A), the Court may grant
24
Plaintiff an extension of time to file a notice of appeal provided that the motion is timely and it
25
demonstrates excusable neglect or good cause. Plaintiff’s motion for an extension of time was
26
timely, but the Court finds it does not make the requisite showing of excusable neglect or good
27
cause.
28
Plaintiff’s only grounds for an extension are that he is proceeding pro se and the law
1
librarian was fired. (Mot. at 2.) Given that Plaintiff was able to file a two-page motion seeking
2
an extension of time, it is unclear why Plaintiff could not file a timely notice of appeal in
3
compliance with Federal Rule of Appellate Procedure 3(c), the requirements of which are
4
minimal. Because Plaintiff has not shown excusable neglect or good cause, his motion for an
5
extension of time is DENIED.1
6
With respect to Plaintiff’s request for an extension to file a motion for reconsideration,
7
the motion need only be filed within a reasonable time. For motions brought under Rule
8
60(b)(1), (2), or (3), a reasonable time is no more than one year after entry of the order at issue.
9
Fed. R. Civ. P. 60(c)(1). The Court is precluded from granting the request for an extension of
10
time to file a motion for reconsideration. Fed. R. Civ. P. 6(b)(2). Inasmuch as the order in
11
question was issued approximately one month ago, Plaintiff does not need an extension of time
12
to seek relief from the order. Fed. R. Civ. P. 60(b); see Lemoge v. United States, 587 F.3d
13
1188, 1196-97 (9th Cir. 2009) (setting forth the relevant factors in determining what constitutes
14
a reasonable time to bring a motion for reconsideration).
15
16
For the reasons set forth herein, Plaintiff’s motion for an extension of time to file a
notice of appeal and/or a motion for reconsideration is DENIED.
17
18
19
20
IT IS SO ORDERED.
21
Dated:
ci4d6
November 2, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
1
The Court notes that in any event, the order Plaintiff desires to appeal is not yet final in that it did not
conclude the action and result in the entry of judgment. Fed. R. Civ. P. 54(b); Fed. R. App. P. 4(a). Until the Court
has entered final judgment on all of Plaintiff’s claims, an appeal of the screening order would be premature.
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
