United States District Court, D. New Mexico
AUGUSTIN F. GRANADO, Jr.¸ DAVID OTERO, and ERIC R. FIERRO, Plaintiffs,
FNU LNU, Wardens, Lea County Correctional Facility, Otero County Prison Facility, Santa Fe P.N.M. South, et al., Defendants.
MEMORANDUM OPINION AND ORDER
the Court is Plaintiff Augustin Granado's Motion to
Extend Time to File Appeal and for Reconsideration
(“Motion”), filed May 5, 2017. Plaintiff seeks
relief from the Court's February 2, 2017 decision
dismissing his pro se civil rights complaint. (Docs.
46 and 47). Defendants were not served with the Motion and
did not respond. Having considered the Motion and applicable
law, the Court denies all requested relief. A.
Background Plaintiff filed a civil rights complaint
seeking damages and release from prison for “[a]ll
actions over a period of 18 years of incarceration”
(Doc. 1). He also sought leave to proceed in forma
pauperis (Doc. 9). Plaintiff alleged, among other
things, that prison officials were preventing him from
sending legal mail. The Court (Hon. Steven Yarbrough) ordered
a limited Martinez report to investigate the claim
but quashed it after Plaintiff continued to send multiple
letters and motions. (Doc. 13). On October 25, 2016, the
Court dismissed the “kitchen-sink” complaint but
granted leave to amend. (Doc. 21).
filed a 65-page amended complaint on January 6, 2017. (Doc.
37). He raised over a hundred claims against various prison
officials and state agencies. Plaintiff also asserted, once
again, that he was prevented from sending legal mail. By a
memorandum opinion and judgment entered February 2, 2017,
(together, “Judgment”) the Court dismissed the
amended complaint. (Docs. 46 and 47). The Court determined
Plaintiff's “shotgun” allegations that his
rights were violated in hundreds of ways failed to state a
claim under 28 U.S.C. § 1915(e)(2).
filed the instant Motion three months later. He seeks an
extension of the time to appeal the Judgment. He also appears
to challenge the Court's decision to rule without taking
evidence or appointing counsel, and renews his argument that
prison officials are preventing him from sending legal mail.
The Court construes the latter arguments as requests for
relief from a final judgment pursuant to Fed.R.Civ.P. 60(b).
Extending the Appeal Period
appeal in a civil case must be filed within 30 days after
entry of the judgment. Fed. R. App. P. 4(a)(1)(A); 28 U.S.C.
§ 2107(a). The district court may extend the appeal
period if “a party so moves no later than 30
days” after it expires. Fed. R. App. P. (4)(a)(5)(A).
See also 28 U.S.C. § 2107(c). Thus, the motion
for extension must generally be filed within 60 days after
entry of the judgment. Id. The only exception is if
the movant did not receive notice of the judgment within 21
days of its entry, and no party would be prejudiced by a
further extension. Fed. R. App. P. (4)(a)(6); 28 U.S.C.
Tenth Circuit has held that where the motion is “not
timely under either Fed. R. App. P. 4(a)(5) or Fed. R. App.
P. 4(a)(6), the district court lacks authority to grant any
relief from the filing deadline.” Coots v.
Allbaugh, 656 Fed.App'x 385, 386 (10th Cir. 2016)
(unpublished) (interpreting Fed. R. App. P. 26(b)). See
also Certain Underwriters at Lloyds of London v. Evans,
896 F.2d 1255, 1256 (10th Cir. 1990) (district courts are
“expressly prohibit[ed] [from granting] extensions of
time for filing a notice of appeal beyond the time limits set
out in [Rule 4]”).
Judgment was entered on February 2, 2017, and the 30-day
appeal period expired on March 6, 2017. See Fed. R.
App. P. 26(a)(1) (governing the computation of time).
Plaintiff does not argue he did not receive timely notice of
the Judgment, which was mailed to his address of record on
the date of entry. Plaintiff therefore needed to move for an
extension by April 5, 2017, which is 30 days after the
expiration of the appeal period. Because he did not file the
Motion until May 5, 2017, it must be denied as untimely.
Court discerns that Plaintiff also moves for relief from the
Judgment under Fed.R.Civ.P. 60(b). Such relief is
discretionary and is generally only warranted in exceptional
circumstances. Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991). Grounds for relief include,
inter alia, mistake, inadvertence, surprise, excusable
neglect, newly discovered evidence, and fraud. See
Fed. R. Civ. P. 60(b)(1)-(6).
reviewed the Judgment, the record, and the Motion, the Court
concludes that none of those grounds exist here. Plaintiff
does assert his evidence is newly discovered; he complains
the Court declined to consider it before dismissing his
complaint. However, courts are not required to review
exhibits or allow discovery when screening in forma
pauperis complaints under 28 U.S.C. § 1915(e)(2).
See Chance v. Vandiver, 620 Fed.App'x 678, 679
(10th Cir. 2015) (unpublished) (to survive screening under
§ 1915, the submission must include a “short and
plain statement” containing “enough facts that
discovery might suggest an evidentiary basis for the
claim”); Local Rule 10.4 (“Exhibits are not
attached to a pleading unless the documents attached form the
basis for the action or defense.”).
remaining arguments do not justify relief under Fed.R.Civ.P.
60(b) because they rehash “the same issues already
addressed and dismissed by the [C]ourt.” Van
Skiver, 952 F.2d at 1243. The Motion, like both
complaints, recites that prison officials are mismanaging
Plaintiffs trust account to prevent him from sending legal
mail. The Court investigated this claim and dismissed it, as
Plaintiff met key deadlines and filed over 33 documents in
connection with his civil rights complaint. (Doc. 13).
Plaintiff s motions to appoint counsel were also previously
considered and rejected, and there are no grounds to appoint
counsel at this stage in the case. See Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(district courts have discretion to deny a motion to appoint
counsel and will only be reversed in “extreme cases
where the lack of counsel results in fundament
unfairness”). Consequently, Plaintiff is not entitled
to relief under Fed.R.Civ.P. 60(b).
THEREFORE ORDERED that Plaintiffs Motion to Extend Time to
File Appeal and for ...