Salinas v. Ramirez et al

1 / 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROBERTO SALINAS,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:24-CV-00168
ROMEO R. RAMIREZ, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
This matter is before the Court on Plaintiff's “Motion For Leave to File Notice of
Appeal Out of Time” requesting additional time to file his notice of appeal of the August
14, 2025 Order Denying Motion for Reconsideration. (D.E. 84). Plaintiff was previously
granted an extension to file a notice of appeal pursuant to Federal Rule of Appellate
Procedure 4(a)(5)(A), which was due by October 16, 2025. (D.E. 83). Plaintiff filed the
instant motion for leave on November 4, 2025, 19 days after the expiration of the
extended deadline to file a notice of appeal. The undersigned recommends that Plaintiff’s
Motion for Leave be DENIED.
Rule 4 of the Federal Rules of Appellate Procedure governs this case and instructs
that “the notice of appeal required by Rule 3 must be filed with the district clerk within
30 days after the judgment or order appealed from is entered.” Rule 4(a)(1). Here, the
record establishes, and Salinas does not dispute, that the notice of appeal was not filed
within the 30–day period. The Fifth Circuit has explained that Rule 4 has two avenues
United States District Court
Southern District of Texas
ENTERED
November 13, 2025
Nathan Ochsner, Clerk
Case 2:24-cv-00168 Document 90 Filed 11/13/25 in TXSD Page 1 of 4

2 / 4
“for rescuing [an] appeal through a late-filed notice of appeal.” Wilkens v. Johnson, 238
F.3d 328, 330 (5th Cir.2001). These two avenues are set forth in Rule 4(a)(5)-(6) as
follows:
(5) Motion for Extension of Time.
(A) The 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[.]
....
(6) Reopening the Time to File an Appeal.
The district court may reopen the time to file an appeal for a period of 14 days
after the date when its order to reopen is entered, but only if all the following
conditions are satisfied:
(A) the court finds that the moving party 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;
(B) the motion is filed within 180 days after the judgment or order is entered or
within 14 days after the moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Salinas did file a motion for extension before the sixty-day period under Rule
4(a)(5)(A)(i) had expired. That motion was granted and he was given until October 16,
2025 to file his notice of appeal. However, Rule 4(a)(6) is not available to Salinas
because he did receive notice of the entry of judgment or order sought to be appealed as
evidence by his first filing requesting an extension to appeal. (See D.E. 82, pg. 3).
The undersigned recognizes that Salinas points to a serious medical situation he
has been undergoing (D.E.s 82 & 84); however, there is no remedy under the law to
allow for a further extension for the filing of a notice of appeal. “Today we make clear
that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”
Case 2:24-cv-00168 Document 90 Filed 11/13/25 in TXSD Page 2 of 4

3 / 4
Bowles v. Russell, 551 U.S. 205, 214 (2007). The Court has no authority to create
equitable exceptions to jurisdictional requirements. Id. The U.S. Supreme Court has held
that use of the “unique circumstances” doctrine to excuse untimely filing issues is
illegitimate. Id. “If rigorous rules like the one applied today are thought to be
inequitable, Congress may authorize courts to promulgate rules that excuse compliance
with the statutory time limits.” Id.
Therefore, the undersigned recommends that Salinas’ Motion for Leave to File
Notice of Appeal Out of Time (D.E. 84) be DENIED.
Respectfully recommended on November 13, 2025.
____________________________
Julie K. Hampton
United States Magistrate Judge
Case 2:24-cv-00168 Document 90 Filed 11/13/25 in TXSD Page 3 of 4

4 / 4
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
Case 2:24-cv-00168 Document 90 Filed 11/13/25 in TXSD Page 4 of 4