DIAMOND v. ODEDERE

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARTIN RUSSELL DIAMOND, )
)
Plaintiff, )
)
v. ) 1:22-cv-287
)
ODEDERE, Unit Manager, )
)
Defendant. )
ORDER
On October 27, 2025, the United States Magistrate Judge’s
Order and Recommendation (“Recommendation”) was filed and notice
was served on the parties pursuant to 28 U.S.C. § 636. (Docs.
132, 133.) No objections were filed within the time limits
prescribed by Section 636.
The record reflects that the Recommendation was served by
mail to Plaintiff’s last known address at Central Prison, 1300
Western Boulevard, Raleigh, North Carolina, but returned as
undeliverable and marked “Return to Sender, Refused.” (See Doc.
134.) This court has no obligation to locate Plaintiff to
provide actual notice; instead, it is the duty of a litigant to
keep this court informed of a current address. LR 11.1(b).
Because Plaintiff has not provided the court with an address
within 63 days of the date of the last return of mail, the local
rules permit the case to be dismissed without prejudice for
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failure to prosecute. See LR 11.1(b). However, because the case
has already been dismissed, no notice of appeal has been filed,
and the Recommendation was not served on Defendant, (see Doc.
134), this court will address the motion directly.
Plaintiff is seeking an extension of time to file a notice
of appeal. (Doc. 131.) Plaintiff alleges he “was in Hospital
from September 27, 2025 to October 19, 2025.” (Id.) The deadline
for Plaintiff to appeal the Judgment, (Doc. 122), and the
Memorandum Opinion and Order denying Plaintiff’s Motion for a
New Trial as to Damages Only, (Doc. 130), was September 24,
2025. See Fed. R. App. P. 4(a)(4)(A).
In order to receive an extension of time to appeal, a party
must show excusable neglect or good cause. Fed. R. App. P.
(5)(A)(ii). Plaintiff has proffered good cause for failing to
file a notice of appeal between September 27, 2025 and October
19, 2025. However, Plaintiff offers no explanation as to why a
timely notice of appeal was not filed between August 24, 2025
and September 26, 2025. Under these circumstances, this court is
not able to find excusable neglect or good cause for the
extension.
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IT IS THEREFORE ORDERED that the Recommendation, (Doc.
132), is adopted as moot.
IT IS FURTHER ORDERED that Plaintiff’s motion for extension
of time to file Notice of Appeal, (Doc. 131), is DENIED WITHOUT
PREJUDICE.
This the 26th day of January, 2026.
__________________________________
United States District Judge
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