UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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C.A. No. 20-16928

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DENNIS BRUCE ALLUMS,

Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION; UNIVERSITY OF CALIFORNIA, BERKELEY; BAY AREA RAPID TRANSIT; and CITY OF BERKELEY,

Appellees.

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MOTION TO REINSTATE APPEAL

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Appeal from the Judgment of the United States District Court for

Northern California, Oakland

0971−4: 4:19−cv−04906−YGR

(Honorable Yvonne Gonzalez Rogers)

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                                                DENNIS BRUCE ALLUMS

                                                [NTC Pro Se]

                                                1831 Solave Ave., #7152

                                                Berkeley, CA 94707

Pursuant to Rule 27 of the Federal Rules of Appellate Procedure and the Ninth Circuit Rule 27, Appellant in the above-captioned appeal move the Court for reinstatement of the appeal and state to the Court the following:

INTRODUCTION AND FACTUAL BACKGROUND

            This appeal was initiated by the filing of a Notice of Appeal on or about 10/01/2020 in 4:19-cv-04906-YGR. A briefing schedule was established on or about 10/05/2020, which set the opening brief due on 11/302020 for 20-16928. The appeal was dismissed on or about 01/08/2021 for failure to file an Opening Brief. Appellant filed a Motion to Reinstate on or about January 18, 2021. The Court denied Appellant’s Motion vide an Order dated on or about April 23, 2021, on the grounds that Appellant failed to file an Opening Brief together with the said Motion.

            Appellant filed an Appeal of the Order and submitted an Appeal Brief on or about [ENTER DATE]. On or about July 9, 2021, Appellant received correspondence from the Court requiring Appellant to refile the Appeal Brief. The Court advised Appellant to file a Motion to Reinstate Appeal, and then file the Appeal Brief.

            At the moment, there appears to be a slight confusion about the filing of the Appeal Brief, because Appellant had already filed an Appeal brief. It follows; this Motion to Reinstate seeks to have the Court accept the attached Appeal Brief as Appellant’s Brief for the instant case.

SUMMARY OF ARGUMENT

1. Appellant has adhered to the rules on drafting and filing Appeal Briefs. Besides, pro se litigants are not prohibited from filing formal Appellant Briefs
2. A denial of Appellant’s Motion would amount to an abuse of discretion, and of Appellant’s access to justice.

ARGUMENTS

A.   APPELLANT’S BRIEF ADHERES TO THE FORMAL RULES. ALSO, APPELLANT IS NOT BARRED FROM FILING A FORMAL APPEAL BRIEF.

There is no provision that expressly bars pro se litigants from drafting and filing formal appeal briefs. Ninth Circuit Rule 28-1(c) provides in that regard that: “Appellants proceeding without assistance of counsel may file the informal form briefs.” (Emphasis added). Accordingly, it is within a pro se litigant’s discretion to either use a formal or informal Brief. When a pro se litigant opts to file a formal Appeal Brief, they are bound by the applicable rules for filing Appeal Briefs.

The Federal Rules of Appellate Procedure 28 and 32 and Ninth Circuit Rules 28-1, 28-2, 32-1, and 32-3 provide guidelines on the drafting and filing of Appeal Briefs.

Appellant contends that his Brief duly adheres to the formal rules as provided in the aforesaid sections. Notably, the attached Brief contains:

1. A table of contents with page references;
2. A table of authorities with page references;
3. A well stated jurisdictional statement;
4. A statement of the issues;
5. A concise statement of the case;
6. A summary of the argument;
7. Appellant’s well plead arguments;
8. A short conclusion; and
9. The certificate of compliance.

                   It follows; there is no reason this Honorable Court may fail to accept Appellant’s Brief, since it adheres to the applicable rules.

B.   DENIAL OF APPELLANT’S MOTION WOULD AMOUNT TO AN ABUSE OF DISCRETION

          “An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Rabkin v. Oregon Health Scis. Univ., 350 F.3d 967, 977 (9th Cir. 2003) (quotation and citation omitted).         

Appellant contends that granting Appellant’s Motion, and Appeal, would help in a speedy termination of the case. Indeed, this Court in U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) stated that, “an immediate appeal from [an] order may materially advance the ultimate termination of the litigation.”

CONCLUSION

          For the foregoing reasons, Appellant is entitled to a reinstatement of his case. The Appellant’s Brief adheres to the applicable rules. Accordingly, the Appellant prays that for the interest of justice and fairness, this Court issues an Order granting Appellant’s Motion to Reinstate.

Respectfully Submitted,

Dated: _____________

CERTIFICATE OF SERVICE

          I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.

Dated: _____________

ADDENDUM

Appeal Brief attached.

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