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Tate v. S. Wiggins

United States District Court, W.D. Pennsylvania

June 28, 2019

LINDELL TATE, Plaintiff,
v.
S. WIGGINS, hearing examiner, CARR, corrections officer, CHRISTIE ACHENCK, grievance coordinator, MARK BURKE, P.S.A., JENNIFER MCCLELLAND, unit manager, BRIAN HYDE, health administrator, MELISSA HAINSWORTH, superintendent, ERIC TICE, superintendent, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Before the Court is Plaintiff Lindell Tate's ("Plaintiff") motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5) (ECF No. 24-1). For the reasons that follow, Plaintiff's motion is GRANTED.

         II. Background

         Plaintiff is currently an inmate at the State Correctional Institute in Somerset, Pennsylvania. (ECF No. 3 at 3-4.) Plaintiff filed a Complaint (ECF No. 3) against various defendants on November 19, 2018.

         On December 17, 2018, this Court ordered that Plaintiff's Complaint be dismissed for failure to state a claim without leave to amend. (ECF No. 8.) A party may appeal such an order by filing a notice of appeal within thirty days after the entry of the order. Fed. R. App. P 4(a)(1)(A). But here, Plaintiff filed a notice of appeal on January 22, 2019, more than thirty days after the entry of the Court's order. (ECF No. 24 at 1.) Because Plaintiff's notice of appeal was not filed within thirty days, his appeal was untimely and could be dismissed for lack of jurisdiction. (See id.)

         However, Plaintiff submitted a jurisdictional response to the Third Circuit on February 11, 2019. (Id. at 2.) The Third Circuit noted that the response potentially alleges good cause or excusable neglect and thus construed Plaintiff's response as including a motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5). (Id.) The Third Circuit forwarded the response to this Court to rule on whether Plaintiff should receive an extension of time to file a notice of appeal due to good cause or excusable neglect, such that his untimely appeal should be deemed timely under Rule 4(a)(5). (Id. at 1-2.)

         In his response, Plaintiff alleges that he received notice of this Court's December 17, 2018, order on December 27, 2018, at 6:58 p.m., ten days after its issuance. (ECF No. 24-1 ¶ 3.) Plaintiff argues that he could not use the law library after receiving notice of the order because of the law library's holiday schedule. (Id. ¶ 4.) He also claims that the prison requires inmates to sign up for the law library in advance, which resulted in a twelve-day wait before he was able to gain access to the information he needed to file a notice of appeal. (Id. ¶¶ 4-5.)

         III. Legal Standard

         The Supreme Court has determined that "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 551 U.S. 205, 214 (2007). Rule 4(a)(1)(A) requires that a party file a notice of appeal within thirty days after the entry of the appealed-from judgment or order. Fed. R. App. P. 4(a)(1)(A). However, Rule 4(a)(5)(A) provides exceptions to this thirty-day-appeal window:

(A) The district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

Fed. R. App. P. 4(a)(5)(A).

         Here, because Plaintiff has moved for an extension of time within thirty days after the expiration of the original appeal period, the first requirement for an extension of time is satisfied. (ECF No. 24 at 1.)

         In terms of the second Rule 4(a)(5)(A) requirement, requests for extensions of time that are filed after the original appeal period expired are governed by the excusable-neglect standard, not the good-cause standard. See Ryder v. Costello, No. CIV. A. 98-5725, 2000 WL 694774, at *2 (E. D. Pa. May 31, 2000) (citing Fed. R. App. P. 4(a)(5), 1979 Advisory Committee Note); Consol. Freightway Corp. of Del. v. Larson,827 F.2d 916, 918 n.3 (3d Cir. 1987); Slavin Prods., Inc. v. Fid. &Guar. Ins. Underwriters,30 F.Supp.2d 838, 839 n.2 (E. D. Pa. 1998) (noting that "[g]ood cause . . .is only applicable when there is a motion for an extension of time before the expiration of the 30 day appeal ...


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