Frost v. Ducart

Opinion

1 4 SHAWN KEVIN FROST, 5 Case No. 17-cv-07228-YGR (PR) Plaintiff, v. CERTIFICATE OF APPEALABILITY AS 7 UNNECESSARY; CONSTRUING MOTION D. WILCOX, et al., AS NOTICE OF APPEAL AND MOTIONS TO 8 PROCEED IN FORMA PAUPERIS ON Defendants. APPEAL AND FOR EXTENSION OF TIME 9 TO APPEAL; AND ADDRESSING MOTIONS

10 This is a closed pro se prisoner action under 42 U.S.C. § 1983 brought by Plaintiff Shawn 11 Kevin Frost, whose claims stemmed from the named Defendants’ alleged retaliation for his filing 12 an inmate appeal. On March 23, 2020, the Court granted Defendants’ motion for summary 13 judgment and entered judgment for Defendants. Dkts. 41, 42. Thereafter, on May 26, 2020, 14 Plaintiff filed a document entitled, “Plaintiff[’s] Request for a[n] Order of Certificate of 15 Appealability (‘COA’),” in which he states that he is “seeking a COA in good faith that [he] will 16 prevail in the Ninth Circuit Court of Appeals.” Dkt. 43. 17 However, a COA, formerly known as a certificate of probable cause to appeal, is only 18 required in a habeas corpus proceeding. See 28 U.S.C. § 2253(c). Therefore, Plaintiff’s request 19 for a COA is DENIED as unnecessary. Dkt. 43. Instead, the Court construes his filing as a Notice 20 of Appeal from the Court’s March 23, 2020 Order Granting Defendants’ Motion for Summary 21 Judgment, as well as a request to proceed in forma pauperis (“IFP”) on appeal and a motion for an 22 extension of time to appeal. 23 Plaintiff’s motion to proceed IFP on appeal is DENIED without prejudice to bringing it 24 directly in the Ninth Circuit. But the Court notes for the benefit of the circuit that the motion 25 appears to be in good faith, and that Plaintiff was afforded leave to proceed IFP in this Court. See 26 Fed. R. App. P. 24(a)(3)(A) (A litigant who was previously permitted to proceed IFP may 27 maintain such status on appeal unless the district court certifies that the appeal is not taken in good 1 Lastly, Plaintiff states that due to the pandemic, he “could not effectuate litigation/request 2 || of [a] COA in a timely manner, and should be excused from the time delay.” Dkt. 43 at 1. In the 3 instant case, this Court finds that Plaintiff is entitled to an extension of time and to reopen time to 4 file the appeal. Pursuant to Rule 4(a)(6)(A), Plaintiff filed the COA request, which has been 5 construed as a Notice of Appeal, within the 180-day time period after the judgment or order was 6 || entered. See Fed. R. App. P. 4(a)(6)(A). Because no party will be prejudiced, the motion for an 7 extension of time to appeal is GRANTED. See Fed. R. App. P. 4(a)(6)(A), (C); Nunley v Los 8 Angeles, 52 F.3d 792, 794-98 (9th Cir. 1995). Therefore, the Clerk of the Court shall process the 9 || Notice of Appeal. 10 This Order terminates Docket No. 43. q 12 Dated: December 29, 2020

WODGE YVONNEGONFALEZ ROGERS ited States District Judge

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