danny-dean-yost-richard-hardin-v-steve-smith-warden-dewey-sowders , 920 F.2d 934 ( 1990 )

920 F.2d 934

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Danny Dean YOST, Plaintiff-Appellant,
Richard Hardin, Appellant,
v.
Steve SMITH, Warden; Dewey Sowders, Warden; Kentucky
Corrections Cabinet; Don Siegelman, Attorney General, State
of Alabama; Guy Hunt, Governor, State of Alabama; District
Attorney, Huston County, Alabama; Fred Cowan, Attorney
General, State of Kentucky; GOVERNOR, State of Kentucky,
Defendants-Appellees.

No. 90-6189.

United States Court of Appeals, Sixth Circuit.

Oct. 9, 1990.

Before BOYCE F. MARTIN, RYAN and SUHRHEINRICH, Circuit Judges.

ORDER

1

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

Review of the papers before the court discloses that the district court entered a judgment dismissing appellant's civil rights action on July 30, 1990. Appellant subsequently filed no motions which would have tolled the time for filing a notice of appeal pursuant to Fed.R.App.P. 4(a)(4). Rather, on September 10, 1990, forty-two days later, appellant filed a "notice of appeal and motion to file a belated appeal" in which he conceded that the notice of appeal was untimely, but sought to establish excusable neglect by alleging that appellees had prevented his receipt of the district court's judgment by withholding his legal mail.

3

On the basis of those facts, this court has concluded that the appeal must be remanded to the district court. Appellant's "notice of appeal and motion to file a belated appeal" clearly contains sufficient allegations of excusable neglect to be construed as a motion for an extension of time in which to file a notice of appeal under Fed.R.App.P. 4(a)(5). See Pryor v. Marshall, 711 F.2d 63, 64-65 (6th Cir.1983). As of this date, the district court has not ruled on that motion.

4

Accordingly, it is ORDERED that the appeal is remanded to the district court for disposition of appellant's motion for an extension of time in which to file a notice of appeal.