Benyamini v. Johnson

Full title: ROBERT BENYAMINI, Plaintiff, v. L. JOHNSON, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Aug 2, 2011

CASE NO. 1:07-CV-00907-LJO-DLB PC (E.D. Cal. Aug. 2, 2011)

Opinion

CASE NO. 1:07-CV-00907-LJO-DLB PC DOC. 47

08-02-2011

ROBERT BENYAMINI, Plaintiff, v. L. JOHNSON, et al., Defendants.

Lawrence J. O'Neill

ORDER DENYING MOTION TO REOPEN TIME TO FILE APPEAL

Plaintiff Robert P. Benyamini ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. This action was dismissed on July 27, 2010, for Plaintiff's failure to obey a court order. Plaintiff filed a motion for reconsideration pursuant to Rule 60 of the Federal Rules of Civil Procedure on October 1, 2010. On March 8, 2011, the Court denied Plaintiff's motion. Pending before the Court is Plaintiff's motion to reopen the time to file an appeal, filed on August 1, 2011. Doc. 47.

Pursuant to Rule 4 of the Federal Rules of Appellate Procedure, the deadline to file an appeal runs from the entry of the order disposing of a motion for relief under Rule 60 of the Federal Rules of Civil Procedure.¹ Because the Court disposed of Plaintiff's Rule 60 motion on March 8, 2011, Plaintiff had up to thirty days afterwards in which to file his notice of appeal. There is no record that Plaintiff filed a timely notice with the Court.

1 Plaintiff's motion for reconsideration of the Court's judgment may be untimely for purposes of Rule 4. Any such motion is to be filed no later than 28 days after judgment. Fed. R. App. P. 4(a)(4)(A)(vi).

In the pending motion, Plaintiff contends that because of his mental issues and ignorance of the law, he was unable to meet these deadlines. Plaintiff moves for a reopening of the time to file an appeal.

To reopen the time to file an appeal, the following conditions must all be met:

A) the moving party did not receive notice of judgment within twenty-one days after entry;
B) the motion is filed within 180 days after the judgment is entered, or within 14 days after receiving notice, whichever is earlier; and
C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6).

Plaintiff fails to meet the first two prongs. Plaintiff does not dispute that he received notice of the judgment within twenty-one days after entry. Plaintiff's motion was filed past the filing deadline.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion to reopen the time to file an appeal, filed on August 1, 2011, is DENIED. No further filings will be accepted in this action.

IT IS SO ORDERED.

Lawrence J. O'Neill

UNITED STATES DISTRICT JUDGE