UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________________________________
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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OPENING BRIEF FOR THE APPELLANT
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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)
________________________________________________________________
DENNIS BRUCE ALLUMS
[NTC Pro Se]
1831 Solave Ave., #7152
Berkeley, CA 94707
TABLE OF CONTENTS
- APPELLANT HAS NOT RECEIVED/ DID NOT RECEIVE CRITICAL ORIGINAL DOCUMENTS PERTAINING THE CASE. 6
- DENIAL OF APPELLANT’S MOTION WOULD AMOUNT TO AN ABUSE OF DISCRETION 7
TABLE OF AUTHORITIES
Cases
Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir.1997) 5
Delta Savings Bank v. United States, 265 F.3d 1017, 1027 (9th Cir. 2001) 5
Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 530 (9th Cir. 2000) 5
Foltz v. State Farm Mutual Auto Insurance Comp., 331 F.3d 1124, 1134 (9th Cir. 2003). 6
In Re Tania Elissia Batache, Case No. 2:20-bk-16753-VZ 10
International Shoe v Washington, 326 US 310 (1945). 4
Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) 7
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011) 7
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 & n.7 (1978) 6
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) 6
Rabkin v. Oregon Health Scis. Univ., 350 F.3d 967, 977 (9th Cir. 2003) 7
U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) 8
U.S. v. The Bus. of the Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d, 1192 (9th Cir. 2011) 6
Statutes
28 U.S. Code § 1346 4
28 U.S. Code § 1402 4
Circuit Rule 28-2.6 10
Federal Rule of Appellate Procedure 32(a)(5) 9
Federal Rule of Appellate Procedure 32(a)(6) 9
Federal Rule of Appellate Procedure 32(a)(7)(B) 9
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) 9
Federal Rule of Appellate Procedure 32(a)(7)(C), 8
INTRODUCTION
This Brief accompanies Appellant’s Motion for Reinstatement of his case in this Honorable Court. Appellant’s appeal was dismissed on or about January 8, 2021, for failure to file an Opening Brief with this Honorable Court.
STATEMENT OF JURISDICTION
The district court had jurisdiction under the minimum contacts doctrine as depicted in International Shoe v Washington, 326 US 310 (1945). All of the Appellees (Defendants) maintain(ed) minimum contacts in the area of jurisdiction of this honorable court.
The district court also had jurisdiction pursuant to 28 U.S. Code § 1346 and § 1402, because the United States is one of the Defendants.
STATEMENT OF THE ISSUES
- The court, vide an Order delivered on or about 8th January 2021, dismissed Appellant’s case for failure to prosecute pursuant to Ninth Circuit Rule 42-1. Appellant alleges that his case should be reinstated since he never received original documents pertaining his case.
STATEMENT OF THE CASE
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.
SUMMARY OF ARGUMENT
- Appellant has not received any document, which would determine his movements in the prosecution of his Case.
- A denial of Appellant’s Motion would amount to an abuse of discretion, and of Appellant’s access to justice.
STANDARD OF REVIEW
A district judge’s decision to reconsider an interlocutory order by another judge of the same court is reviewed for an abuse of discretion. See Delta Savings Bank v. United States, 265 F.3d 1017, 1027 (9th Cir. 2001); Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir.1997); See also Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 530 (9th Cir. 2000) (noting court has discretion to overrule interlocutory holding of another court).
ARGUMENTS
-
APPELLANT HAS NOT RECEIVED/ DID NOT RECEIVE CRITICAL ORIGINAL DOCUMENTS PERTAINING THE CASE.
A presumption of access only obtains if the First Amendment right of access or the common law right of access applies to the documents at issue in a particular case. Therefore, courts often begin their inquiry by determining whether either right applies to the documents at issue. U.S. v. The Bus. of the Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d, 1192 (9th Cir. 2011) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)) (citations omitted).
“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 & n.7 (1978); see also Foltz v. State Farm Mutual Auto Insurance Comp., 331 F.3d 1124, 1134 (9th Cir. 2003).
The presumption afforded by the First Amendment right of access can be overcome only “by a compelling governmental interest” that “is narrowly tailored to serve that interest.” Id. (quoting Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 509-10 (1984).
In the instant case, Appellant did not receive original documents, which documents are necessary in the prosecution of his case. Appellant has(d) raised complaints about not receiving correspondence in the mail concluding a week before the judge’s decision. The court sent the Appellant notice that mail could not be delivered due to the account being closed. It turns out Appellant’s bill was overdue. Appellant settled the bill only to receive mail that was sent much earlier confirming that someone was indeed tampering with the mail and accidentally got caught when they sent it the day Appellant’s account was expired. It follows; for the interest of justice and fairness, this Honorable Court should grant Appellant’s Motion to Reinstate and accept this Brief thereof.
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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). A reviewing court should only reverse for abuse of discretion where it is “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011) (quotation and citation omitted). So long as the law was properly applied, a decision that “falls within a broad range of permissible conclusions” is not an abuse of discretion. Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) Appellant avers that the Court’s failure to acknowledge the facts raised by Appellant as to why he did not receive the original documents, would amount to the Court’s abuse of discretion. The Court’s decision would also not be reasonable and just in the present circumstances. Accordingly, Appellant’s Motion should be granted, and the appeal considered accordingly.
Besides, 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 has not received all original documents, which are necessary for his case. Accordingly, the Appellant prays that this Court issues an Order granting Appellant’s Motion to Reinstate.
Respectfully Submitted,
Dated: _____________
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CERTIFICATE OF COMPLIANCE
I certify, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), that the attached OPENING BRIEF FOR THE APPELLANT, DENNIS BRUCE ALLUMS:
- complies with Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains roughly 1,000 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii); and
- complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Word 2016, in 14-point Times New Roman font.
The undersigned has relied upon the word count feature of the mentioned word processing system in preparing this certificate.
Dated: _____________
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________________________ DENNIS BRUCE ALLUMS [NTC Pro Se] 1831 Solave Ave., #7152 Berkeley, CA 94707 Appellant in Pro Per. |
STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6, I state that Dennis Allums v. USDOJ, et al, Case No0971−4 : 4:19−cv−04906−YGR, is related to this appeal.
Dated: _____________
________________________
DENNIS BRUCE ALLUMS
[NTC Pro Se]
1831 Solave Ave., #7152
Berkeley, CA 94707
Appellant in Pro Per.
CERTIFICATE OF SERVICE
I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.
Dated: _____________
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________________________ DENNIS BRUCE ALLUMS [NTC Pro Se] 1831 Solave Ave., #7152 Berkeley, CA 94707 Appellant in Pro Per. |
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