Hudson v. DiPaolo , 179 F. App'x 705 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2423
MAC S. HUDSON,
Plaintiff, Appellant,
v.
PAUL DIPAOLO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Mac Hudson on brief pro se.
Stephen G. Dietrick, Deputy General Counsel, and Nancy
Ankers White, Special Assistant Attorney General, on brief for
appellees.
May 12, 2006
Per Curiam. Appellant, a prison inmate acting pro se,
challenges the district court's denial of his motion for leave to
file a late notice of appeal from the judgment entered in favor of
defendants in his civil rights action filed under 42 U.S.C. 1983.
We review the denial of a motion for leave to file a late notice of
appeal for abuse of discretion. See Mirpuri v. Act Mfg., Inc., 212
F.3d 624, 627 (1st Cir. 2000).
Appellant argues that he was unable to file a timely
appeal because he did not receive notice of the final judgment
entered April 1, 2003, until August 2005. Where a party has not
received notice of the entry of a judgment, the thirty-day appeal
period provided in Fed. R. App. P. 4(a)(1)(A) may be re-opened for
a fourteen-day period, but only when the motion to reopen "is filed
within 180 days after the judgment or order is entered or within 7
days after the moving party receives notice . . . [of entry],
whichever is earlier; and . . . the court finds that no party would
be prejudiced." Fed. R. App. P. 4(a)(6). Since appellant's motion
was filed well beyond the 180-day period in which a motion to
reopen would have been permitted, this exception is of no help to
him.
To the extent appellant suggests that the district
court should have entered his motion to reopen nunc pro tunc, his
argument is unavailing because, even assuming, arguendo, that the
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district court had authority to follow such a procedure, it did
not abuse its discretion in declining to do so given its finding
that appellant had failed to fulfill his duty to diligently
monitor the docket. See Mirpuri, 212 F.3d at 631; Witty v.
Dukakis, 3 F.3d 517, 520 (1st Cir. 1993). See also Fed. R. Civ.
P. 77(d) ("[l]ack of notice of the entry by the clerk does not
affect the time to appeal or relieve or authorize the court to
relieve a party for failure to appeal within the time allowed").
Affirmed. See 1st Cir. Loc. R. 27(c).
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