James E. Bryant, Petitioner, v. Robert G. Borg; C.j. Johnson; J. Valadez; S. Larson;m.f. Martel; P. Kennedy; J. Bauer, Respondents, 947 F.2d 949 (9th Cir. 1991)

MEMORANDUM^** 

James E. Bryant, a California state prisoner, appeals pro se from the district court's denial of his motion for reconsideration. Bryant moved for reconsideration of a magistrate judge's order staying his action under 42 U.S.C. § 1983. We construe this appeal as a petition for a writ of mandamus and grant the petition. See Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (invalid appeal may be construed as a mandamus petition).

* Because Bryant's § 1983 action sought restoration of good time credits, a remedy cognizable only through a habeas proceeding, the magistrate judge stayed the action. See Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 1990), cert. denied, 111 S. Ct. 1090 (1991). The district judge construed Bryant's motion for reconsideration of the magistrate judge's order as one brought pursuant to Local Rule 304(b) and denied it as untimely.

Under Fed. R. Civ. P. 72, objections to a magistrate judge's nondispositive pretrial order or findings and recommendations are timely if they are served and filed within ten days of the entry of the order or the findings and recommendations. A district court "for cause shown may at any time in its discretion" grant an extension for filing objections "if request therefor is made before the expiration of the period originally prescribed." Fed. R. Civ. P. 6(b).

Under the Eastern District's local rules, objections to a magistrate judge's nondispositive pretrial order or findings and recommendations are timely if filed within ten days after the order or findings are served "unless a different time is prescribed by the Magistrate or a Judge." E.D. Cal. Local R. 304(b) & 305(b).

II

In this case, the magistrate judge entered the order staying the action on May 14, 1990. By motion dated May 20, 1990, filed May 23, 1990, Bryant requested an extension of time within which to file a motion for reconsideration. By order entered June 20, 1990, the magistrate judge granted Bryant five days from the service of the magistrate judge's order to file his motion for reconsideration. Bryant filed his motion for reconsideration on May 31, 1990.

III

Because Bryant filed his motion for reconsideration within the time period prescribed by the magistrate judge, the petition for a writ of mandamus is granted, the writ shall issue and the district court shall consider Bryant's timely motion for reconsideration.

The petition is GRANTED and the writ shall ISSUE.