                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1073n.06

                                        Nos. 11-3977/4170
                                                                                         FILED
                              UNITED STATES COURT OF APPEALS                          Oct 12, 2012
                                   FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk

DAVID DOUGLAS,                                            )
                                                          )
       Plaintiff-Appellant,                               )
                                                          )
v.                                                        )    ON APPEAL FROM THE
                                                          )    UNITED STATES DISTRICT
JOHN SWING, in his individual and official                )    COURT FOR THE
capacity as a patrolman with the Miami Township           )    SOUTHERN DISTRICT OF
Police Department; MIAMI TOWNSHIP; BOB                    )    OHIO
WEST, in his individual and official capacity as a        )
patrolman with the Milford City Police                    )
Department; CITY OF MILFORD; MELISSA                      )
WAHLERT, in her individual and official capacity          )
as a patrolman with the Miami Township Police             )
Department,                                               )
                                                          )
       Defendants-Appellees.                              )




       BEFORE: BATCHELDER, Chief Judge; KEITH and MARTIN, Circuit Judges.



       PER CURIAM. David Douglas, who is represented by counsel, appeals a district court

judgment in Case No. 11-3977 dismissing his civil rights action filed pursuant to 42 U.S.C. §§ 1981,

1983, 1985(3), and 1988. He also alleged supplemental state law claims of malicious prosecution,

false arrest, and false imprisonment. In Case No. 11-4170, Douglas appeals the district court’s order

denying his motion for an extension of time in which to file a notice of appeal. The appeals have

been consolidated.
Nos. 11-3977/4170
Douglas v. Swing, et al.

        On January 16, 2009, between midnight and 1 a.m., Douglas arrived at his home only to

discover that a police car engaged in a traffic stop of another vehicle was blocking the entrance to

his driveway. Douglas drove his van between the back of the stopped vehicle and the front of the

police car, over the curb and sidewalk, and through the front yard to his driveway, while yelling at

the police officer, who was standing next to the stopped car. The police officer walked over to

Douglas’s now parked van and the two men had a further verbal altercation. The police officer told

Douglas that he was under arrest for obstructing official business, but Douglas refused to be

handcuffed and instead went back into his van. The police officer called for assistance. Another

officer arrived at the scene and assisted in removing Douglas from the van and handcuffing him. A

third officer also responded and arranged for the van to be towed. Douglas was subsequently tried

before a jury on charges of resisting arrest, assault, and obstructing official business. The trial judge

dismissed the resisting arrest charge. The jury found Douglas not guilty of the assault charge, but

could not reach a verdict on the obstructing official business charge. Douglas later entered a guilty

plea to a reduced charge of driving on the sidewalk.

        In his complaint, Douglas sued the three police officers who arrested him and the two

municipalities that employed them, raising numerous claims, including excessive force; retaliation

for the exercise of his First Amendment rights; unlawful arrest, search, and imprisonment; and

malicious prosecution. The defendants moved for summary judgment. The district court granted

summary judgment to the defendants in a judgment entered on August 10, 2011. On September 12,

2011, Douglas filed a motion for an extension of time to file an appeal and a notice of appeal. The

district court subsequently denied the motion for an extension of time.

                                                  -2-
Nos. 11-3977/4170
Douglas v. Swing, et al.

        Federal Rule of Appellate Procedure 4(a)(5) allows a district court to extend the time to

appeal upon a motion filed not later than thirty days after the expiration of the time for filing a notice

of appeal, on a showing of excusable neglect or good cause. The motion for an extension in this case

was timely filed. A ruling on a motion for an extension of time to appeal is reviewed for an abuse

of discretion. Barnes v. Cavazos, 966 F.2d 1056, 1061 (6th Cir. 1992). A showing of good cause

requires a demonstration that forces beyond the control of the appellant prevented him from filing

a timely notice of appeal. Nicholson v. City of Warren, 467 F.3d 525, 526 (6th Cir. 2006). In this

case, counsel argued that he miscalculated the date for filing the notice of appeal and that Douglas

did not pay a retainer until after the time for the appeal had expired. Both of these reasons were

entirely within the control of Douglas and his counsel. Therefore, these reasons do not establish

good cause to extend the appeal period. Excusable neglect is a strict standard that will be found only

in extraordinary cases. Id. Miscalculation of the filing deadline does not constitute excusable

neglect. Barnes, 966 F.2d at 1061–62. Moreover, the district court did not abuse its discretion in

concluding that counsel’s failure to receive a retainer did not excuse his neglect in failing to file a

timely notice of appeal.

        The district court’s denial of the motion for an extension of time to file a notice of appeal in

Case No. 11-4170 is affirmed. Case No. 11-3977 is dismissed for lack of jurisdiction because

Douglas’s notice of appeal regarding the district court’s underlying judgment is late. See Fed. R.

App. P. 4(a) and 26(a).




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