UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 23, 2007
RASOOL SALAAM, PLAINTIFF,
D. ADAMS, FACILITY NURSE; S. WALSH, FACILITY NURSE; R.A. GIRDICH,SUPERINTENDENT, DEFENDANTS.
The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge
This matter comes before the Court on Plaintiff's Motion for an extension of time to file an appeal. Rasool Salaam ("Plaintiff" or "Salaam") filed this action on April 25, 2003. By Order entered September 29, 2006, this Court granted Defendants' Motion for summary judgment and dismissed this action in its entirety. See September 2006 Order (Dkt. No. 46). Plaintiff seeks to appeal that dismissal. The request for an extension of time was filed November 22, 2006, and dated November 18, 2006.*fn1
Under the Federal Rules of Appellate Procedure ("FED. R. APP. P."), a notice of appeal in a civil case to which the United States is not a party must be filed within 30 days from the entry of the judgment from which the appeal is taken. See FED. R. APP. P. 4(a)(1). However, FED. R. APP. P. 4(a)(5) provides that a district court may extend the time for filing an appeal for "good cause shown" upon motion filed not later than thirty days after the expiration of the appeal period set forth in Rule 4(a). Rule 4(a)(5) further provides, in relevant part, that:
No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
FED. R. APP. P. 4(a)(5)(C) (emphasis added).
In the present case, Plaintiff did not file his request for an extension of time to file his appeal until after the initial thirty day appeal period had expired. However, it was filed prior to the time limit set forth in FED. R. APP. P. 4(a)(5). Because more than thirty days have elapsed past the time during which Salaam could properly file a notice of appeal, the Court hereby grants Plaintiff, for good cause shown, an additional ten (10) days from the date of entry of this Order within which to file his notice of appeal. See FED. R. APP. P. 4(a)(5).
Thus, Salaam's Motion for an extension of time within which to file a notice of appeal is hereby granted. Accordingly, Plaintiff's notice of appeal, already filed with this Court on December 28, 2006 (Dkt. No. 49), shall be accepted and forwarded to the United States Court of Appeals for the Second Circuit.
WHEREFORE, it is hereby
ORDERED, that Plaintiff's Motion for an extension of time within which to file notice of appeal from the judgment dismissing this action (Dkt. No. 48) is GRANTED, and Plaintiff's notice of appeal (Dkt. No. 49) shall be ACCEPTED and FORWARDED to the United States Court of Appeals for the Second Circuit; and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.