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Gerald Lewis Austin, #A1076082 v. Lau

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII


February 21, 2012

GERALD LEWIS AUSTIN, #A1076082, PLAINTIFF,
v.
LAU, DEFENDANT.

The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DENYING REQUEST TO EXTEND TIME TO APPEAL

On November 8, 2011, the court dismissed pro se plaintiff Gerald Lewis Austin's prisoner civil rights complaint for failure to state a claim. See ECF #4. Plaintiff was granted leave to amend to cure the complaint's pleading deficiencies.

Id. On November 28, 2011, Plaintiff moved to amend his Complaint, submitted a proposed amended complaint, and requested in forma pauperis status. ECF #8, #13, #14. On November 29, 2011, the court granted Plaintiff's in forma pauperis application. ECF #15.

Plaintiff's proposed amended complaint was virtually identical to the original Complaint, however, and did not address any of the court's noted deficiencies. See ECF #14. On November 30, 2011, the court denied Plaintiff's motion to amend the complaint and dismissed this action for Plaintiff's failure to state a claim or cure the original complaint's deficiencies. ECF #16. Judgment was entered that day. ECF #17.

On February 15, 2012, Plaintiff submitted a letter to the Clerk of Court explaining that he intends to file a notice of appeal in this action and seeks an extension of time to do so. ECF #22. Plaintiff says he needs time to make copies of his documents before he submits a notice of appeal and an in forma pauperis application for his appeal.*fn1

The deadline for filing a notice of appeal in this action was December 30, 2011. See Fed. R. App. 4(a)(1). That date can be extended until January 29, 2012, under Rule 4(a)(5), if the court construes Plaintiff's letter as a motion for an extension of time, and if Plaintiff's motion shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5).

Plaintiff's letter was signed on February 13, 2012, however, and is therefore untimely. Moreover, even if it was timely, Plaintiff provides no adequate explanation showing good cause or excusable neglect for extending the time to appeal. See Fed. R. App. 4(a)(5)(A)(ii). To the contrary, Plaintiff has filed numerous actions, motions, amended pleadings, letters, and exhibits in his recent cases, yet fails to provide any justification to extend the time to appeal in this case, even if the court had jurisdiction to do so.*fn2 Plaintiff's motion to extend time to appeal is DENIED.

In light of Plaintiff's pro se status, the Clerk is DIRECTED to nonetheless process Plaintiff's request as his notice of appeal. Plaintiff may then direct his request for an extension of time to appeal to the appellate court.

IT IS SO ORDERED.

Susan Oki Mollway


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