Opinion
CASE NO: 1:11-cv-00790-LJO-GBC (PC) Doc. 10
09-15-2011
ROBERT T. FORTE, Plaintiff, v. MATTHEW CATE, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION
FOR AN EXTENSION OF TIME TO FILE
APPEAL
ORDER DIRECTING CLERK'S OFFICE TO
SERVE COPY OF THIS ORDER ON NINTH
CIRCUIT
ORDER
I. PROCEDURAL HISTORY
Robert T. Forte ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 16, 2011, Plaintiff filed his original complaint. (Doc. 1). On July 7, 2011, the Court denied Plaintiff's motion to proceed IFP, dismissed the action without prejudice and judgment was entered that same day. (Docs. 8, 9). On August 19, 2011, Plaintiff filed a notice of appeal, which also requested an extension of time. (Doc. 10).
II. EXTENSION OF TIME
A notice of appeal must be filed within thirty days from the date of entry of judgment. Fed. R. App. P. 4(a)(1). The Court may grant an extension of time to file an appeal if the motion seeking the extension is filed no later than thirty days after the thirty-day period in Rule 4(a)(1) expires. Fed. R. App. P. 4(a)(5)(i).
Plaintiff's motion was timely, and the Court finds that Plaintiff has shown excusable neglect in failing to file a notice of appeal within thirty days from entry of judgment. Fed. R. App. P. 4(a)(5)(A)(ii).
Plaintiff is the only party in this action at this juncture and Plaintiff's notice and motion were brought within sixty days after entry of judgment. Mendez v. Knowles, 556 F.3d 757, 764-65 (9th Cir. 2009). Allowing Plaintiff a limited extension of time to appeal will not cause any additional prejudice or impact judicial proceedings. Id. Further, there is no indication from the record that the reason for the delay was within Plaintiff's reasonable control given he is incarcerated or that Plaintiff did not act in good faith. Id.
III. CONCLUSION AND ORDER
Accordingly, Plaintiff's motion for an extension of time to file a notice of appeal is HEREBY GRANTED. IT IS SO ORDERED.
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UNITED STATES MAGISTRATE JUDGE