Silva v. Bacon

Opinion

HONORABLE RICHARD A. JONES 1

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 RAMON SAUL SILVA, 9

Plaintiff, 10 Case No. 2:19-cv-00619-RAJ v. 11 ORDER GRANTING EXTENSION OF TIME TO FILE AN APPEAL TROY BACON, et al., 12 13 Defendants. 14 15 The Court entered judgment in this matter on August 17, 2020. Dkt. # 108. Any 16 notice of appeal had to be filed within 30 days from that judgment, that is, by September 17 16, 2020. Fed. R. App. P. 4(a)(1)(A). Plaintiff Ramon Saul Silva did not file a notice of 18 appeal by that date. Instead, on the day of the deadline, Mr. Silva moved for an extension 19 of time to file an appeal. Dkt. # 109. That motion is currently before the Court. 20 Mr. Silva represents that from August 18, 2020 to September 4, 2020 he had been 21 at three different facilities: King County Correctional Facility, Western State Hospital 22 (where he was undergoing a competency evaluation), and the Washington Department of 23 Corrections. Id. at 1; Dkt. # 110 at 1-2. Given the many location changes, he says that he 24 did not receive this Court’s summary judgment order. Dkt. # 109 at 1-2. Defendants 25 oppose Mr. Silva’s request for an extension of time, arguing that he has failed to show 26 good cause or excusable neglect. Dkt. # 110 at 3-4. They suggest that Mr. Silva should 27 have notified the Court and Defendants of his various address changes. Id. In any event, 1 Defendants argue that this matter is now moot because Mr. Silva is no longer at the King 2 County Correctional Facility and there is no reasonable expectation or demonstrated 3 probability that he will return. Id. at 4-5. 4 A district court may extend the time to file a notice of appeal if a moving party 5 shows “excusable neglect” or “good cause.” Fed. R. App. P. 4(a)(5). To determine 6 whether there has been excusable neglect, courts assess four factors: “(1) the danger of 7 prejudice to the non-moving party, (2) the length of delay and its potential impact on 8 judicial proceedings, (3) the reason for the delay, including whether it was within the 9 reasonable control of the movant, and (4) whether the moving party’s conduct was in 10 good faith.” Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (citing Pioneer 11 Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 12 (1993)). On balance, the facts here favor an extension. The first factor is neutral. 13 Defendants assert that an extension is prejudicial, but they do not explain why. Dkt. 14 # 110 at 4. On the other hand, the last three factors favor Mr. Silva—he filed this motion 15 within the notice of appeal period, minimizing any delay; he could not file a timely notice 16 of appeal because he did not receive this Court’s order and judgment for he was being 17 transferred to different facilities, something he could not control; and there is no evidence 18 suggesting that his delay was the result of bad faith. In sum, Mr. Silva’s neglect to file a 19 timely notice of appeal was excusable. 20 Separately, as to Defendants’ mootness argument, the Court need not decide that 21 here. On this record, the Court cannot say with certainty that Mr. Silva has no 22 “reasonable expectation” or “demonstrated probability” of returning to King County 23 Correctional Facility. And at issue here is not whether Mr. Silva’s appeal will be 24 successful but whether Mr. Silva may file an appeal at all. 25 / / / 26 / / / 27 / / / 1 For these reasons, the Court GRANTS Mr. Silva’s Motion for Extension of Time 2 to File an Appeal. Dkt. # 109. In accordance with Rule 4(a)(5)(C) of the Federal Rules 3 of Appellate Procedure, Mr. Silva must file his notice of appeal within 14 days of the 4 entry of this order. 5 6 DATED this 16th day of October, 2020.

7 A 8

9 The Honorable Richard A. Jones 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27