Bishop v. Corsentino
| Decision Date | 09 June 2004 |
| Docket Number | No. 02-1485.,02-1485. |
| Citation | 371 F.3d 1203 |
| Parties | Decelina BISHOP, individually and as personal representative of the Estate of Kenneth Bishop, deceased, Plaintiff-Appellant, v. Dan CORSENTINO, Sheriff, individually and in his official capacity as the Sheriff of Pueblo County; Chris Flores, individually and in his official capacity as a member of the Pueblo County Sheriff's Office; Paul Arellano, individually and in his official capacity as a member of the Pueblo County Sheriff's Office; Duane Nava, individually and in his official capacity as a member of the Pueblo County Sheriff's Office; Dan Vigil, individually and in his official capacity as a member of the Pueblo County Sheriff's Office; Anita Archuleta, individually and in her official capacity as a member of the Pueblo County Sheriff's Office; Ed Moreno, individually and in his official capacity as a member of the Pueblo County Sheriff's Office; Richard Peters, individually and in his official capacity as a member of the Pueblo County Sheriff's Office, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Matthew Martin, Pueblo, CO, for Plaintiff-Appellant.
Gordon L. Vaughan and Sara Ludke Cook, Vaughan & DeMuro, Colorado Springs, CO, for Defendants-Appellees.
Before EBEL, ANDERSON, and BRISCOE, Circuit Judges.
Plaintiff appeals the district court's orders denying her Fed. R.App. P. 4(a)(5) motions to extend the thirty-day time in which to file a notice of appeal and also her motion to proceed in forma pauperis. We affirm.1
Plaintiff's son, Ken Bishop, died after being placed in a restraint chair at the Pueblo County Jail. Plaintiff filed this civil rights suit alleging that defendants (the Pueblo County Sheriff's Department and department employees) had used excessive force against Mr. Bishop, ignored his serious medical needs, and subjected him to summary punishment. In a lengthy order and memorandum of decision, the district court granted summary judgment in favor of defendants, determining that plaintiff had not set out an underlying constitutional violation.
Twenty-eight days after the district court entered judgment, plaintiff's attorney filed a motion for an extension of time to file a notice of appeal. Pursuant to Fed. R.App. P. 4(a)(5), the district court may extend the thirty-day appeal time if a party moves for an extension and shows excusable neglect or good cause. The motion stated that neither the attorney nor his client had Attach. to Aplts. Br., Ex. B at 1.
After the time for appeal had elapsed, plaintiff filed a second motion for extension of time to file notice of appeal and also a motion to proceed in forma pauperis (ifp). The second extension motion stated that plaintiff needed a ruling on her ifp motion before filing her notice of appeal. The district court denied the extension motions in a minute order, and also denied the ifp motion, stating that plaintiff's appeal was not taken in good faith.
A district court's order refusing to extend the time for filing a notice of appeal is itself an appealable final judgment, Diamond v. United States District Court, 661 F.2d 1198, 1198 (9th Cir.1981), which this court reviews "only for abuse of discretion," City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1045 (10th Cir.1994). Under the abuse-of-discretion standard, the district court's decision will not be disturbed unless the reviewing court has "a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994) (citation and quotation omitted).
The time parameters for filing notices of appeal are usually "mandatory and jurisdictional." Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). In a civil case, the notice of appeal generally "must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a); see also 28 U.S.C. § 2107 (). The district court, however, may extend the time upon a showing of "excusable neglect or good cause," if a party moves for an extension no later than thirty days after the appeal time has expired. Fed. R.App. P. 4(a)(5)(A).2
The factors relevant to an excusable-neglect decision include "the danger of prejudice to [the nonmoving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." City of Chanute, 31 F.3d at 1046 (quotation omitted). The time for taking an appeal should not be extended in the "absence of circumstances that are unique and extraordinary." Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir.1974) (quotation omitted).
The concept of good cause "take[s] account of a narrow class of cases in which a traditional `excusable neglect' analysis would be inapposite." Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630 (1st Cir.2000). Good cause comes into play Fed. R.App. P. 4(a)(5) advisory committee's note (2002 Amendments).
Plaintiff's first motion for an extension of time demonstrates neither excusable neglect nor good cause. Counsel's need to review the record, consult with the client, and, where counsel deems it desirable to obtain an additional legal perspective, are typical prefatory steps common to the appeal process. These actions, which are within control of counsel, are expected to be completed within the thirty-day period prescribed by Fed. R.App. P. 4(a)(1). It is laudable for an attorney to seek the advice of outside counsel in evaluating the merits of an...
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