DIAMOND v. ODEDERE

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARTIN RUSSELL DIAMOND, )
)
Plaintiff, )
)
v. ) 1:22CV287
)
ODEDERE, et al., )
)
Defendants. )
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action pro se against Defendants Odedere,
Euote, Crisco, and Parker. (See Docket Entry 1.) Defendants
Euote, Crisco, and Parker answered (through counsel). (See Docket
Entry 10.) The Clerk docketed an entry of default against
Defendant Odedere (see Docket Entry 13), but the Court (per the
undersigned Magistrate Judge) set aside that default (see Text
Order dated Nov. 14, 2022) and Defendant Odedere (appearing pro se)
answered and counterclaimed (see Docket Entry 19). Plaintiff
answered Defendant Odedere’s counterclaim. (See Docket Entry 24.)
After the close of discovery (see Text Order dated Sept. 20,
2022 (setting discovery deadline of May 17, 2023)), Defendants
Euote, Crisco, and Parker moved for summary judgment (see Docket
Entry 29). The Court (per United States District Judge Loretta C.
Biggs) granted that motion in part and denied it in part, by
granting “summary judgment for Defendant Parker on the lone
(excessive force) claim against him and for Defendant Euote on
Plaintiff’s claim for failure to intervene during Defendant[
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Parker’s] use of force” (Docket Entry 49 at 1), but denying
“summary judgment for Defendants Euote and Crisco on the other
claims against them” (id. at 2). Pro bono counsel thereafter
appeared for Defendant Odedere (see Docket Entries 43, 44) and for
Plaintiff (see Docket Entries 47, 48).
Subsequently, a “[s]ettlement [was] reached on all claims as
to [D]efendants Euote and Crisco and [the] parties executed a
binding settlement agreement with definite terms that [we]re
enforceable.” (Minute Entry dated Nov. 14, 2024; see also Docket
Entry 115 (Stipulation of Voluntary Dismissal with Prejudice for
Defendants [] Crisco and [] Euote Only).) The case proceeded to
trial on Plaintiff’s claims against Defendant Odedere and Defendant
Odedere’s counterclaim against Plaintiff. (See Minute Entries
dated Dec. 16 & 17, 2024.) On December 17, 2024, the jury
(A) found for Plaintiff on his claim that Defendant Odedere
(i) used excessive force in violation of the Eighth Amendment to
the United States Constitution and (ii) committed a battery under
North Carolina law (see Docket Entry 114 at 1), (B) awarded
Plaintiff $0 in actual damages, $1 as nominal damages, and $10,000
in punitive damages (see id. at 2-3), and (C) found in Plaintiff’s
favor on Defendant Odedere’s counterclaim (see id. at 3).
On January 17, 2025, the Clerk docketed a Notice of Withdrawal
and Substitution of Counsel (Docket Entry 116) filed pro se by
Plaintiff (see id. at 1) and dated as signed on January 9, 2025
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(see id.). According to that Notice, Plaintiff re-assumed
responsibility for litigation of this case from his “pro bono
[counsel whose] representation ended once the trial in this matter
was complete.” (Id.)1 That same day, the Clerk also docketed a
Motion for New Trial as to Damages Only (Docket Entry 117 (the “New
Trial Motion”)), which Plaintiff filed pro se (see id. at 1),
“[p]ursuant to Rule 59(a)(1) of the Federal Rules of Civil
Procedure” (id.), and dated as signed on January 9, 2025 (see id.).
On February 14, 2025, the Court (per Judge Biggs) entered a
“Judgment . . . in accordance with [the] verdict . . . .” (Docket
Entry 122 (the “Judgment”) at 1.) On August 25, 2025, the Court
(per Judge Biggs) denied Plaintiff’s New Trial Motion. (See Docket
Entry 130 (the “New Trial Order”) at 5.)
Generally, “[i]n a civil case, . . . the notice of appeal
. . . must be filed with the district clerk within 30 days after
entry of the judgment or order appealed from,” Fed. R. App. P.
4(a)(1)(A) (emphasis added); however, because Plaintiff “file[d] in
the district court . . . [a] motion[ for a new trial under Rule 59
of] the Federal Rules of Civil Procedure – and [d[id] so within the
time allowed by th[at] rule[2] – the time to file an appeal runs
1 Quotations from Plaintiff’s filings use standard
capitalization conventions.
2 “A motion for a new trial must be filed no later than 28 days
after the entry of judgment.” Fed. R. Civ. P. 59(b) (emphasis
added). As documented above, Plaintiff filed his New Trial Motion
before the entry of the Judgment in this case.
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for all parties from the entry of the order disposing of th[at ]
motion,” Fed. R. App. P. 4(a)(4)(A). In this case (as previously
documented), Judge Biggs entered the order denying the New Trial
Motion on August 25, 2025, and thus the deadline for Plaintiff to
appeal both the Judgment (Docket Entry 122) and the New Trial Order
(Docket Entry 130) ran (30 days later) on September 24, 2025.
On October 30, 2025, the Clerk docketed a one-page, unsigned,
undated letter from Plaintiff. (See Docket Entry 131 (the “Letter
Motion”) at 1.)3 The envelope conveying the Letter Motion bears a
post-mark dated October 29, 2025, and a stamp showing receipt by
the Clerk’s Office on October 30, 2025. (See Docket Entry 131-1.)
The Letter Motion states the following:
I was in hospital when [the] deadline to file [a] notice
of appeal deadline [sic] past [sic]. I fully intend to
appeal to [the] 4th Circuit appeal[s court] the denial of
my [N]ew [T]rial [M]otion[.] I was in hospital from
September 27[,] 2025 to October 19[,] 2025. I’m
incarcerated so when I asked [the] prison for my
discharge paperwork to include with this Letter [Motion
I was] told [the] Court needs to request it in writing.
I had good cause [for] missing [the] deadline[. I] need
a new deadline[.] Please send and a request for my
hospital discharge document (Sept[ember] 27[,] 2025 thru
Oct[ober] 19[,] 2025)[.]
(Docket Entry 131 at 1 (emphasis added).)
For a civil case like this one:
The district court may extend the time to file a notice
of appeal if:
3 Plaintiff knows how to date and to sign filings. (See, e.g.,
Docket Entry 128 at 6; Docket Entry 129 at 1.)
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(i) a party so moves no later than 30 days after the time
prescribed by [Federal] Rule [of Appellate Procedure]
4(a) expires; and
(ii) regardless of whether its motion is filed before or
during the 30 days after the time prescribed by [Federal]
Rule [of Appellate Procedure] 4(a) expires, that party
shows excusable neglect or good cause.
Fed. R. App. P. 4(a)(5)(A) (emphasis added).
In light of those rule provisions, because (as documented
above) the Clerk received the Letter Motion on October 30, 2025,4
when more than 30 days had passed since the expiration of
Plaintiff’s notice of appeal deadline (on September 24, 2025),
Plaintiff can only obtain an extension of his deadline to file a
notice of appeal by “show[ing] excusable neglect or good cause,”
Fed. R. App. P. 4(a)(5)(A)(ii). Here, the Letter Motion does not
show excusable neglect or good cause warranting an extension of
Plaintiff’s deadline of September 24, 2025, to file a notice of
appeal, because the impediment cited in the Letter Motion as
necessitating the requested extension of time, i.e., Plaintiff’s
hospitalization, did not arise (according to the Letter Motion’s
4 The Court should treat the Letter Motion as filed when
received by the Clerk. See, e.g., Scott v. White, 126 F. Supp. 3d
665, 670 n.2 (E.D. Va. 2014), aff’d in part and dismissed in part,
612 F. App’x 191 (4th Cir. 2015). The rule governing notice of
appeal does contain a prison mailbox provision, see Fed. R. App. P.
4(c)(1), but the Letter Motion does not satisfy that provision’s
requirements of “a declaration in compliance with 28 U.S.C. § 1746
– or a notarized statement – setting out the date of deposit [with
the internal mail system of Plaintiff’s prison],” Fed. R. App. P.
4(c)(1)(A)(i), or “evidence (such as a postmark or date stamp)
showing that the notice was so deposited,” Fed. R. App. P.
4(c)(1)(A)(ii). (See Docket Entry 131 at 1.)
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above-quoted assertions) until September 27, 2025, after the
deadline for filing of a notice of appeal already had expired.5
IT IS THEREFORE RECOMMENDED that the Court deny the Letter
Motion (Docket Entry 131).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 4, 2025
5 The Letter Motion does not allege (much less provide a basis
for the Court to find) that Plaintiff “did not receive notice under
Federal Rule of Civil Procedure 77(d) of the entry of the judgment
or order sought to be appealed within 21 days after entry,” Fed. R.
App. P. 4(a)(6)(A), and thus no basis exists for the Court to
“reopen the time to file an appeal,” Fed. R. App. P. 4(a)(6).
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