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Turner v. Multnomah County

United States District Court, D. Oregon

May 27, 2014

RANDALL TURNER, Plaintiff,
v.
MULTNOMAH COUNTY, a political subdivision of the State of Oregon; WASCO COUNTY, a political subdivision of the State of Oregon; GILLIAM COUNTY, a political subdivision of the State of Oregon; HOOD RIVER COUNTY, a political subdivision of the State of Oregon; SHERMAN COUNTY, a political subdivision of the State of Oregon; and OLE LLOYD ANDERSON ERSSON, M.D.; MONICA WAHLS, N.P.; NORTHERN OREGON CORRECTIONAL FACILITY, Defendants.

Randall Turner, FCI Terminal Island, Terminal Island, CA, Pro se Plaintiff.

Michael A. Lehner, Jennifer L. Maks, Lehner & Rodrigues, Portland, OR, Attorneys for NORCOR.

OPINION AND ORDER ON PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO APPEAL

GARR M. KING, District Judge.

Pending before me is Randall Turner's pro se Motion for Extension of Time to File an Appeal, pursuant to 28 U.S.C. § 2107. Turner seeks to appeal the judgment dismissing NORCOR with prejudice, entered pursuant to Federal Rule of Civil Procedure ("FRCP") 54(b).

BACKGROUND

Turner alleges claims for deliberate indifference to his medical needs under 42 U.S.C. § 1983 and medical malpractice while detained at Inverness and NORCOR pending resolution of federal charges. When Turner filed his complaint in Multnomah County Circuit Court on September 19, 2012, he was represented by two attorneys. Defendants removed the complaint to this Court on October 16, 2012.

On October 30, 2013, I granted NORCOR's motion for summary judgment. I subsequently entered judgment pursuant to FRCP 54(b), dismissing NORCOR with prejudice on January 6, 2014.

The day before a scheduled telephone conference to set new case deadlines, Turner's attorneys filed a motion to withdraw. I granted the motion during the telephone conference on January 30, 2014.

On March 24, 2014, Turner filed this pro se motion for extension of time to appeal, complaining that his attorneys had been negligent in failing to notify him of NORCOR's dismissal. He claimed he received notice of the judgment on March 13, 2014 when he obtained his file from his former attorneys. Along with his motion, Turner filed a declaration in which he declares that he had to ask for copies of documents multiple times before his attorneys would provide them. In his reply, he also complains his attorneys refused to amend the complaint to correct errors, refused to name specific defendants, and "attempted to introduce conflicting testimony into the case[.]" Pl.'s Resp. 2.

Turner attached to his reply an email dated November 15, 2013, in which one of his attorneys explained to Turner, "As I told you over the phone, the court granted NORCOR's motion for summary judgment because the court found that there was not a master/servant relationship between Monica Wahls and NORCOR. The issue has been preserved for appeal, but as it now stands this is the law of the case." Pl.'s Resp. Attachment [78].

LEGAL STANDARDS

The Court's authority to reopen the time to file an appeal is restricted by FRCP 77(d)(2), which instructs "[l]ack of notice of the entry [of an order or judgment] does not affect the time for appeal or relieve-or authorize the court to relieve-a party for failing to appeal" within the requisite time unless permitted by Federal Rule of Appellate Procedure ("FRAP") 4(a).

Pursuant to FRAP 4(a), a notice of appeal is generally due within 30 days after entry of the judgment. FRAP 4(a)(5) permits the court to extend the time to appeal if the motion is filed no later than 30 days after the time prescribed by the rule.

FRAP 4(a)(6) permits the court to reopen the time to file an appeal for a period of 14 days, but only if all of ...


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