Gutierrez v. Hill

• Court: District Court, S.D. California
• Decided: April 9, 2024
• Docket: 3:22-cv-01413
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALVADOR GUTIERREZ, Case No.: 22-cv-01413-JO-LR

12 Petitioner,

13 v. ORDER GRANTING REQUEST TO REOPEN THE TIME TO FILE AN 14 JAMES HILL, APPEAL 15 Respondent. 16 17 18 19

20 On March 21, 2024, pro se Petitioner Salvador Gutierrez filed a motion to vacate the 21 Court’s September 25, 2023 order adopting Magistrate Judge Lupe Rodriguez’s report and 22 recommendation granting Respondent James Hill’s motion to dismiss. Dkt. 15. Petitioner 23 asserts that the Court erred pursuant to Federal Rule of Civil Procedure 60(b) by failing to 24 provide him with a copy of this final order. Id.; Fed. R. Civ. P. 60(b)(1). Petitioner argues 25 that he was unable to file a timely notice of appeal with the Ninth Circuit because he did 26 not discover the Court’s decision until February 2024. Dkt. 15. 27 Because Petitioner ultimately seeks more time to file a notice of appeal, the Court 28 liberally construes his pro se motion for vacatur as a request to reopen the time to file an 1 appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). Fed. R. App. P. 4(a)(6); 2 In re Stein, 197 F.3d 421, 424–27 (9th Cir. 1999) (establishing that Fed. R. Civ. P. Rule 3 60(b) cannot be used to extend the deadline to file a notice of appeal because Fed. R. App. 4 P. 4(a)(6) was created for this purpose), as amended on denial of reh’g (Jan. 5, 2000); see 5 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally 6 construed.” (internal citation and quotation marks omitted)). Under this rule, 7 “[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is 8 entered, but only if . . . (A) the court finds that the moving party 9 did not receive notice under Federal Rule of Civil Procedure 77(d)1 of the entry of the judgment or order sought to be appealed 10 within 21 days after entry; (B) the motion is filed within 180 days 11 after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil 12 Procedure 77(d) of the entry, whichever is earlier; and (C) the 13 court finds that no party would be prejudiced.”

14 Fed. R. App. P. 4(a)(6). 15 Here, Petitioner has met the necessary requirements for the Court to reopen the time 16 to file his appeal. First, the Court finds that Petitioner did not receive notice of the entry 17 of its September 25, 2023 order within 21 days because he only learned of the Court’s 18 decision in February 2024, over four months after the Court entered of this judgment. Dkt. 19 15 at 2. In fact, Petitioner’s mail log shows that the prison’s mail room never received this 20 order. Id. at 8. Second, Petitioner filed this motion on March 21, 2024, exactly on the 21 180th day after the Court issued its order, meeting the requisite deadline. Id. at 1. Third, 22 the Court does not find that either party would be prejudiced as a significant duration of 23 time has not passed and there is no evidence that the appellee has relied on the closure of 24 25

26 1 Under Federal Rule of Civil Procedure 77(d), “[i]mmediately after entering an order or 27 judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk must record the service on the docket. A party also may serve 28 1 ||this case. Nunley v. City of Los Angeles, 52 F.3d 792, 795 (9th Cir. 1995) (explaining that 2 || the advisory committee has defined prejudice as “some adverse consequence other than the 3 || cost of having to oppose the appeal and encounter the risk of reversal . . . for example, if 4 || the appellee had taken some action in reliance on the expiration of the normal time □□□□□□□□□ 5 In sum, the Court GRANTS Petitioner’s request to reopen the time to file his appeal. 6 || Thus, Petitioner has fourteen days following the entry of this order, April 23, 2024, to file 7 || his notice of appeal with the Ninth Circuit. 8 Accordingly, the Court ORDERS the U.S. Marshal to serve a copy of this order upon 9 || Petitioner and DIRECTS the clerk of the court to close this case. 10 11 IT IS SO ORDERED. 12 13 Dated: April 9, 2024 14 15 Ho orgbfe Tinsook Ohta 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28