Facts
- Erick Michael Brown filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 alleging entitlement to equitable tolling due to Covid-19 lockdowns [lines="14-18"].
- The Magistrate Judge issued a Report and Recommendation advising that Brown's motion should be denied as he did not demonstrate how Covid-19 restrictions prevented him from timely filing [lines="12-21"].
- Brown did not provide sufficient explanation for the delay in filing his motion beyond the 111 days when he was in the Special Housing Units [lines="42-44"].
- The trial court noted numerous cases indicating that intermittent lockdowns do not constitute "extraordinary circumstances" to warrant equitable tolling [lines="20-21"].
- The Court concluded that the motion was filed more than six months past the limitations deadline, without any valid basis for tolling [lines="62-64"].
Issues
- Whether Erick Michael Brown met the criteria for equitable tolling of the statute of limitations for filing his § 2255 motion [lines="15-17"].
- Whether the delays attributed to Covid-19 constituted "extraordinary circumstances" as defined by precedent [lines="20-21"].
Holdings
- The court held that Brown did not show sufficient grounds for equitable tolling, thus his motion was denied as time-barred [lines="32"].
- The court affirmed that delays due to intermittent lockdowns do not constitute "extraordinary circumstances," supporting the dismissal of Brown's claims [lines="20-21"].
OPINION
Case Information
*1 Case 1:23-cv-00372-KES-EPG Document 20 Filed 04/30/24 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CRAIG K. GARRETT, No. 1:23-cv-00372-KES-EPG (PC) Plaintiff, ORDER GRANTING ADDITIONAL TIME TO PAY FILING FEE v.
KATHLEEN ALLISON, et al.,
Defendants.
Plaintiff Craig K. Garrett (“Plaintiff”) is a state prisoner proceeding pro se in this action filed pursuant to 42 U.S.C. § 1983. Doc. 1.
On August 17, 2023, the Court issued an order denying Plaintiff’s application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). [1] Doc. 12. The Court also ordered Plaintiff to pay the $402.00 filing fee in full within thirty days if he wanted to proceed with this action. [2] Id. at 4. Plaintiff was warned that if he “fails to pay the filing fee in full within thirty days, this action will be dismissed without prejudice and without further notice.” Id. at 4. The thirty-day period has expired, and Plaintiff has failed to pay the requisite filing fee. See docket. *2 Case 1:23-cv-00372-KES-EPG Document 20 Filed 04/30/24 Page 2 of 2 On April 26, 2024, Plaintiff filed a self-titled “Motion for Inquiry; Appointment of Counsel” requesting the status of this case and requesting the appointment of counsel. Doc. 19. The Court finds this case does not meet the exceptional circumstances standard necessary for the appointment of counsel as Plaintiff has failed to pay the necessary filing fee and is unlikely to succeed on the merits of his case at this time. See Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986). However, under the circumstances reported in Plaintiff’s filing, specifically Plaintiff’s current hunger strike and recent hospitalizations, Doc. 19, the Court finds it would be equitable to allow Plaintiff an additional thirty days from the date of this order to pay the filing fee as ordered in Doc. 12 before dismissing this case.
Accordingly, IT IS ORDERED:
1. Plaintiff’s motion for the appointment of counsel, Doc. 19, is hereby DENIED without prejudice.
2. Within 30 days of service of this order, Plaintiff shall pay the $405.00 filing fee in full. Plaintiff is advised that failure to comply with this order will result in dismissal of this action.
IT IS SO ORDERED.
Dated: April 29, 2024 UNITED STATES DISTRICT JUDGE
2
[1] Plaintiff filed an appeal of this order on August 23, 2023. Doc. 13. On November 17, 2023, the Ninth Circuit dismissed Plaintiff’s appeal for failure to prosecute. Doc. 17.
[2] The Court notes that on December 1, 2023, the filing fee increased to $405. 1