Nicholson v. City of Warren

• Decision Date: 25 October 2006
• Docket Number: No. 06-1358.,06-1358.
• Parties: Pamela Abbett NICHOLSON, Plaintiff-Appellant, v. The CITY OF WARREN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.3d 525

Pamela Abbett NICHOLSON, Plaintiff-Appellant, v. The CITY OF WARREN, Defendant-Appellee.

No. 06-1358.

United States Court of Appeals, Sixth Circuit.

Submitted: October 23, 2006.

Decided and Filed: October 25, 2006.

ON BRIEF: Lauren M. Donofrio, KITCH, DRUTCHAS, WAGNER, DeNARDIS & VALITUTTI, Mt. Clemens, Michigan, for Appellee. Pamela Abbett Nicholson, Center Line, Michigan, pro se.

Before MARTIN and COOK, Circuit

Judges; BERTELSMAN, District Judge.^*

MARTIN, Circuit Judge.

Pamela Abbett Nicholson, a Michigan citizen, moves for miscellaneous relief and appeals pro se a district court order denying her motion for an extension of time to appeal in an action filed pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Nicholson filed this action against the city of Warren, Michigan, alleging that she had been injured when her wheelchair was not properly secured in a transportation van provided by defendant. The district court dismissed the complaint on January 26, 2004, and denied Nicholson's motion for reconsideration on February 13, 2004. On March 29, Nicholson filed a motion which was construed in part as a request for an extension of time to file a notice of appeal, as well as a notice of appeal. The district court denied the motion for an extension as untimely, and Nicholson appealed. In Case No. 04-1726, we concluded that the motion had not been untimely, and remanded the matter for the district court to consider whether Nicholson had established good cause or excusable neglect to allow an extension. On remand, the district court denied the motion for an extension on the merits.

In her brief on appeal, Nicholson raises four arguments: 1) because her motion also contained a request for the appointment of counsel, she believed that the case would be tolled while the motion was pending; 2) the district court should have held a hearing on remand; 3) a letter from the judge's chambers returning correspondence not related to a pending case indicates bias by the judge; and 4) the district court violated the ADA by denying her access to the court based on her disability. She has also filed a motion to use the fictitious name "Ada Traveler" in this appeal.

An order denying an extension of time to file a notice of appeal is reviewed for an abuse of discretion. Allen v. Murph, 194 F.3d 722, 724 (6th Cir.1999). Upon review, we find no abuse of discretion in this case.

Nicholson was required to demonstrate good cause or excusable neglect to merit an extension of time to file a notice of appeal. Fed. R.App. P. 4(a)(5). Good cause will be found where forces beyond the control of the appellant prevented her from filing a timely notice of appeal. Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630 (1 st Cir.2000). To this end, Nicholson argued in her motion that she was under stress and had an allergic reaction to medication which required emergency room treatment. The district court properly noted that, while lengthy incapacitating illness might constitute good cause, Nicholson gave no details of the duration of her medical treatment which would indicate that she had been unable to file a notice of appeal within thirty days of the court's order.

Excusable neglect has been held to be a strict standard which is met only in extraordinary cases. Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir.1989). In her motion, Nicholson argued that she was unsure whether she had thirty or sixty days to appeal,...