United States District Court, D. Colorado
Raymond P. Moore Judge
matter is before this Court on the Order (ECF No. 50) from
the U.S. Court of Appeals for the Tenth Circuit partially
remanding Plaintiff Madina Buhendwa's appeal to this
Court for the following actions: (1) determine whether Ms.
Buhendwa filed a motion for extension of time
(“Motion”) before the District Court to file an
appeal; and (2) if so, whether the Motion should be granted.
to the Order, the Court has reviewed the case and determined
that Ms. Buhendwa, proceeding pro se with paper
filings, submitted the Motion for filing on February 2, 2018
(and it was stamped as filed that date). As the Court has
imposed certain filing restrictions on Ms. Buhendwa (ECF Nos.
32, 37, 38), where appropriate, filings should be submitted
to the Court for review and, if proper, approval for filing.
There is no record, however, that the Motion was submitted to
the Court, and the Court has no recollection of ever
receiving such Motion for consideration. Regardless, the
Court has now reviewed the Motion, approved it for filing,
and directed it be docketed. The Motion has been docketed
under ECF No. 51, with a filing date of February 2, 2018, but
with a notation that it was docketed on May 11, 2018.
Court has also considered the Motion pursuant to Fed. R. App.
P. 26(b)(1). Pursuant to Rule 26(b)(1), “[f]or good
cause, the court may extend the time prescribed by these
rules…. But the court may not extend the time to file:
(1) a notice of appeal (except as authorized in Rule
4).” Four provisions in Rule 4 apply. The Court
discusses each in turn.
Fed. R. App. 4(a)(1)(A), required Ms. Buhendwa to file her
notice of appeal within 30 days after entry of the judgment
or order appealed from. Second, pursuant to Fed. R. App. P.
4(a)(5)(A)(i), “[a] district court may extend the time
to file a notice of appeal if: (i) a party so moves no later
than 30 days after the time prescribed by this Rule 4(a)
expires.” Here, Ms. Buhendwa submitted her Motion for
consideration on February 2, 2018, four days after the entry
of judgment. As the Court would have approved the Motion for
filing as of that date, and the Clerk would have docketed it
in the ECF system accordingly, the Court deems the Motion
filed as of that date as reflected in the District
Court's ECF system. Thus, Ms. Buhendwa's Motion was
filed before the 30 days for appeal expired.
third Rule 4 provision implicated in this matter involves
notice to Defendants. Where a motion for extension is filed
before the expiration of the time to do so, it “may
filed be ex parte unless the court requires otherwise.”
Fed. R. App. 4(a)(5)(B). “If the motion is filed after
the expiration of the prescribed time, however, notice must
be given to the other parties in accordance with local
rules.” Id. In this case, while the Court
deems the Motion as filed on February 2, 2018, it was not
actually filed in the ECF system until May 11, 2018 - after
the 30-day appeal period expired. On this record, the Court
finds and requires that notice be given to
Defendants; the Clerk did so on May 11. Nothing in the
applicable rules, however, precludes the Court from ruling on
a motion without a response, see D.C.COLO.LCivR
7.1(d) (“Nothing in this rule precludes a judicial
officer from ruling on a motion at any time after it is
filed.”), and the Court finds no response is required
from Defendants before ruling on the Motion.
brings the Court to the final provision of Rule 4 at issue.
Under Rule 4(a)(5)(A)(ii), the Court may grant a party an
extension of time to file a notice of appeal upon a showing
of excusable neglect or good cause. Ms. Buhendwa's Motion
seeks an extension of time in order to find an attorney to
assist her in the appeal. The Court need not decide whether
Ms. Buhendwa's statement (standing alone) is sufficient
as, under the facts and circumstances of this case, the Court
nonetheless finds good cause to grant Ms. Buhendwa an
extension of time to and including March 15, 2018, the date
in which her notice of appeal was filed. Specifically, as
stated, Ms. Buhendwa filed her Motion on February 2, 2018,
four days after final judgment entered. If the Motion had
been denied by the Court before the expiration of the time
for appeal, Ms. Buhendwa would have had the opportunity to
timely file an appeal, even without counsel. She in fact
filed a pro se notice of appeal on March 15, 2018.
And, the record shows Ms. Buhendwa has timely responded to
other matters in this case. Were the Court to deny Ms.
Buhendwa's Motion now, the opportunity for her to timely
file a pro se notice of appeal has long past and her
March 15, 2018 appeal would be untimely. Through no fault of
her own making as to the filing of the Motion,  Ms. Buhendwa
would be denied the right to appeal. Accordingly, it is
that Plaintiff Madina Buhendwa's Motion for Extension of
Time to File Notice of Appeal (ECF No. 51) is
GRANTED to and including March 15, 2018.
 The system for transmittal of
documents involving filing restrictions has now been modified
to ensure that timely notice of a filing is provided to the
proper judicial officer, and that a record is made of the
 Defendants were presumably put on
notice of the Motion in the Tenth Circuit when Ms. Buhendwa
submitted it for consideration there on March 28,
 The Court recognizes that if Ms.
Buhendwa had not engaged in a history of lengthy and abusive
filing, filing restrictions would not have been ordered. But,
that is a matter that is separate ...