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Hernandez v. Berumen

United States District Court, D. New Mexico

July 11, 2017



          M. CHRISTINA ARMIJO Chief United States District Judge

         THIS MATTER is before the Court on an Order of our Tenth Circuit Court of Appeals, “partially remand[ing] this matter to the district court to consider whether to construe Hernandez's notice of appeal as a motion to reopen the time to appeal under Fed. R. App. p. 4(a)(6).” Hernandez v. Berumen, No. 17-2005 (10th Cir. May 5, 2017). Having considered the filings and the relevant law, the Court construes Plaintiff's Appeal of Order Dismissing Case as both a motion to reopen the time to appeal and a concurrent notice of appeal, and hereby GRANTS his request to reopen the time to file appeal and accepts and DOCKETS his notice of appeal as of the date of this Order.


         Alleging inadequate medical care, negligence, and medical malpractice, Plaintiff Juan Hernandez filed this prisoner pro se action along with an application to proceed in forma pauperis on April 21');">21, 2016. [Doc. 1, 2] Pursuant to 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Virginia Beach Federal Savings and Loan Association v. Wood, 901 F.2d 849 (10th Cir. 1990), the Court referred this case to the Magistrate Judge to conduct hearings, perform legal analysis, and make a recommendation to the Court. [Doc. 5] On July 20, 2016, after issuing Orders to cure deficiencies and receiving responses from Plaintiff [Docs. 4, 6, 7, 8, 10; see also Doc. 12], the Magistrate Judge granted Plaintiff leave to proceed in forma pauperis and required Plaintiff to pay an initial partial payment. [Doc. 11] The Court mailed the Order Granting Leave to Proceed to Plaintiff at the address Plaintiff provided when he filed his Complaint, at the U.S. Penitentiary in Tucson, Arizona. However, the Order was returned to sender marked “Attempted - Not Known, Unable to Forward.” [Doc. 13] The Court was unable to determine Plaintiff's address using the Bureau of Prisons Inmate Locator Service, which indicated that Plaintiff was no longer in the custody of the Bureau of Prisons. [Doc. 14, n.1] Accordingly, the Magistrate Judge issued an Order to Show Cause, ordering Plaintiff to show cause why this case should not be dismissed for Plaintiff's failure to comply with the Court's Local Rule 83.6, which requires Plaintiff to apprise the Court of any change in his address. D.N.M. LR-Civ. 83.6. [Doc. 14]

         Plaintiff did not respond within the thirty days he was allotted, and, accordingly, this Court entered an Order dismissing his case without prejudice on September 12, 2016. [Doc. 17] However, the Court did not enter a separate judgment pursuant to Federal Rule of Civil Procedure 58(a), and, therefore, the dismissal became final on February 9, 2017. Fed.R.Civ.P. 58(c)(2)(B) (stating that, where a separate judgment is not entered, the judgment is entered 150 days from the “entry in the civil docket”). Plaintiff therefore had until March 13, 2017, thirty days from February 9, 2017, to file a notice of appeal. Plaintiff did not do so.

         On March 31, 2017, this Court received a letter from Plaintiff alerting the Court that he had been transferred to another facility and advising the Court of his address. [Doc. 19] The same day, the Court also received a Motion Requesting Update from Plaintiff. [Doc. 20] In response, on April 3, 2017, the Court mailed Plaintiff a copy of the docket sheet and the Order Dismissing Case. Thereafter, on April 24, 2017, Plaintiff filed his Appeal of Order Dismissing Case with this Court. [Doc. 21');">21]

         In his Appeal of Order Dismissing Case, Plaintiff represents as follows:

2. . . . [I]n September 2016, [Plaintiff] was sent on a Writ to El Paso, Texas on a criminal matter unbeknowing (sic) to him the date and time he was to be transferred.
The United States Marshal's Service does not allow inmates in transfer to be moved with any property in their possession except for a property slip and therefore Plaintiff did not even have the civil case number to alert the Court to his new address.
The Plaintiff on the day of his transfer on Writ requested that the Receiving and Discharge (“R&D”) Staff please allow him to send something to the Court explaining that he was transferring, but, was only allowed to sign a Form stating that all of his mail would be forwarded to an outside (home) address.
3. Plaintiff is aware that it is crucial that he comply with the Rules in order for the Court to proceed in his civil matter but Plaintiff would like to bring to the court's attention that he is an inmate and did not know in advance that he was leaving the custody of the Bureau of Prisons temporary (sic), and specifically did not know when he was leaving on Writ. This is not information that is shared with Plaintiff due to security concerns.
5. On March 31, 2017, Plaintiff submitted a Change of Address Notification as soon as he was able to locate the Case Number.

[Doc. 21');">21, pp. 3-4] Plaintiff requests leniency given his pro se status and requests the Court to re-open his case because he “informed the Court of his change of address when he ...

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