Hammerlord v. Elliott

• Court: District Court, S.D. California
• Decided: May 29, 2024
• Docket: 3:23-cv-00663
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 M. NORMAN HAMMERLORD, Case No.: 23-cv-00663-JO-KSC

12 Plaintiff,

13 v. ORDER GRANTING REQUEST TO REOPEN THE TIME TO FILE AN 14 MARA W. ELLIOTT, San Diego City APPEAL Attorney and TODD GLORIA, San Diego 15 City Mayor, 16 Defendants. 17 18 19

20 Pro se Plaintiff Hammerlord requests to reopen the time to file an appeal. Dkt. 11. 21 On April 12, 2023, Plaintiff filed a complaint along with a request to proceed in forma 22 pauperis (“IFP”). Dkts. 1,2. On June 9, 2023, pursuant to screening obligations under 28 23 U.S.C. § 1915(e)(2), the Court dismissed Plaintiff’s complaint with prejudice. Dkt. 3. 24 Following this order, Plaintiff filed a motion for reconsideration [Dkt. 4], which the Court 25 denied on August 8, 2023 [Dkt. 5]. Following the Court’s orders, Plaintiff filed an 26 amended complaint [Dkt. 6] and motion of readiness to proceed [Dkt. 7]. On January 4, 27 2024, the Court issued a minute order informing Plaintiff that it had already ordered a final 28 judgment on the merits, the case was closed, and that no further filings would be 1 entertained. Dkt. 10. Accordingly, the Court struck Plaintiff’s amended complaint and 2 motion of readiness to proceed from the record. Id. Subsequently, Plaintiff filed a Notice 3 of Appeal to the Ninth Circuit, in which he also filed a motion for extension of time before 4 the circuit court pursuant to Federal Rule of Appellate Procedure 26(b). Dkt. 11. On May 5 23, 2024, the Ninth Circuit ordered a limited remand for the purpose of allowing the district 6 court to consider Plaintiff’s motion for an extension of time. Dkt. 14. 7 Although this motion was filed before the Ninth Circuit under Federal Rule of 8 Appellate Procedure 26(b), the Court liberally construes Plaintiff’s pro se motion as a 9 request to reopen the time to file an appeal pursuant to Federal Rule of Appellate Procedure 10 4(a)(6) before the district court. Fed. R. App. P. 4(a)(6); see Erickson v. Pardus, 551 U.S. 11 89, 94 (2007) (“A document filed pro se is to be liberally construed.” (internal citation and 12 quotation marks omitted)). Under this rule, 13 “[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 14 entered, but only if . . . (A) the court finds that the moving party 15 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 16 within 21 days after entry; (B) the motion is filed within 180 days 17 after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil 18 Procedure 77(d) of the entry, whichever is earlier; and (C) the 19 court finds that no party would be prejudiced.”

20 Fed. R. App. P. 4(a)(6). 21 Here, Plaintiff has met the necessary requirements for the Court to reopen the time 22 to file his appeal. First, the Court finds that Petitioner did not receive notice of the entry 23 of its January 4, 2024 order within 21 days because he did not receive the Court’s order 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 February 14, 2024. Dkt. 14. Even though the Court closed Plaintiff's case on June 2 ||9, 2023 and August 8, 2023, Plaintiff's later filing of an amended complaint and motion of 3 readiness to proceed illustrates that Plaintiff did not comprehend that his case was closed. 4 ||See Dkts. 6, 7. In light of these facts and Plaintiff's status as a pro se litigant, the Court 5 ||construes its January 4, 2024 order as its final judgment and finds that Plaintiff did not 6 ||receive timely notice that his case was definitively closed within 21 days. Second, 7 || Petitioner filed this motion on February 22, 2024, and thus, within 180 days after the Court 8 |/issued its order on January 4, 2024, meeting the requisite deadline. Dkt. 14. Third, the 9 Court does not find that either party would be prejudiced as a significant duration of time 10 || has not passed and there is no evidence that the appellees have relied on the closure of this 11 ||case as this case was dismissed before their involvement pursuant to 28 U.S.C. § 12 || 1915(e)(2). Nunley v. City of Los Angeles, 52 F.3d 792, 795 (9th Cir. 1995) (explaining 13 the advisory committee has defined prejudice as “some adverse consequence other 14 ||than the cost of having to oppose the appeal and encounter the risk of reversal . . . for 15 || example, if the appellee had taken some action in reliance on the expiration of the normal 16 period”). 17 In sum, the Court GRANTS Petitioner’s request to reopen the time to file his appeal. 18 || Thus, Petitioner has fourteen days following the entry of this order, Wednesday June 12, 19 || 2024, to file his notice of appeal with the Ninth Circuit. 20 Accordingly, the DIRECTS the clerk of the court to close this case. 21 IT IS SO ORDERED. 22 23 Dated: May 29, 2024 24 25 Ho orgbfe Tinsook Ohta 26 United States District Judge 27 28