Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40091

ROGER STEVEN MCCARTY,

Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CV-60

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

We review the district court's order denying Petitioner Roger Steven

McCarty's second motion for an extension of time ("Motion") to file objections to

the magistrate judge's report and recommendation ("R&R"). The district court

has granted a Certificate of Appealability as to whether the district court abused

its discretion in denying Petitioner's Motion. Finding no abuse of discretion, we

AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

April 30, 2010

Lyle W. Cayce

Clerk

Case: 09-40091 Document: 00511097610 Page: 1 Date Filed: 04/30/2010
No. 09-40091

2

Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, on May 17, 2007. The magistrate judge issued an R&R to dismiss the

case on August 18, 2008. Petitioner received the R&R two days later. The R&R

stated that Petitioner had ten days to file any objections. On August 25, 2008,

the court received Petitioner's first motion for extension of time, which the court

granted in part, granting Petitioner until September 8, 2008, to file any

objections. The court stated in that order that no further extensions would be

permitted. On September 16, 2008, Petitioner filed the instant Motion, seeking

additional time to file objections to the R&R.

Petitioner avers that the prison in which he was located went into its

"biannual lockdown shakedown" on September 2, 2008, six days before the

court's deadline for objections. Petitioner further avers that Hurricane Ike hit

shortly after the lockdown, knocking out power in the facility. Because of the

alleged lockdown in his prison and the subsequent effects of Hurricane Ike,

Petitioner avers he was unable to access the prison's library system or legal

materials from September 2, 2008, until at least September 20, 2008, when the

lockdown ended and power was restored. Consequently, Petitioner argues that

the district court denied him "meaningful access to the courts" by refusing to

grant his Motion for an extension of time.

Rule 6(b) of the Federal Rules of Civil Procedure states in relevant part:

(b) Extending Time.

(1) In General. When an act may or must be done within a

specified time, the court may, for good cause, extend the time:

. . . 

(B) on motion made after the time has expired if the

party failed to act because of excusable neglect. 

FED. R. CIV. P. 6(b) (emphasis added).

The permissive language of Rule 6(b) shows that any grant of an extension

of time for when an act must be done falls to the district court's discretion. See

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No. 09-40091

Apparently, neither the prison lockdown nor the subsequent power outage prevented

1

Petitioner from filing his second Motion for extension of time, as the court received the Motion

a day before the alleged lockdown ended but eight days after the extended deadline for

3

Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990) (reviewing court's

denial of an extension of time under Rule 6(b) for abuse of discretion). Moreover,

any grant of an extension that is filed after the time for a response has expired

may only be granted upon a finding of excusable neglect. See FED. R. CIV. P.

6(b)(1)(B). Even if good cause and excusable neglect are shown, it nonetheless

remains a question of the court's discretion whether to grant any motion to

extend time under Rule 6(b). See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,

894-98, 110 S. Ct. 3177, 3191-93 (1990).

We note that "excusable neglect" is an "elastic concept." Pioneer Inv.

Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 392, 113 S. Ct. 1489, 1496 (1993).

The determination of what is "excusable" is "at bottom an equitable one, taking

account of all relevant circumstances surrounding the party's omission." Id. at

395, 113 S. Ct. at 1498; see also United States v. Clark, 51 F.3d 42, 44 (5th Cir.

1995) (applying the Pioneer standard of "excusable neglect" to criminal cases

involving Rule 4(b)); Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994)

(applying Pioneer to Rule 6(b)) (cited approvingly in Clark, 51 F.3d at 44). 

In the instant case, we find neither good cause nor excusable neglect, nor

do we otherwise find that the district court abused its discretion denying

Petitioner's Motion. Assuming Petitioner's averments to be true regarding a

prison lockdown and subsequent power failure, Petitioner nevertheless had from

August 20, 2008 to September 2, 2008 to access the prison library systems. In

addition, the district court noted that Hurricane Ike did not hit the Texas coast

until September 12, 2008. Accordingly, there was no power outage caused by

Hurricane Ike that prevented Petitioner from finishing his objections by the

court's deadline of September 8, 2008.1

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objections. Therefore, even if Petitioner had valid grounds to seek additional time, he was

unimpeded from doing so before the expiration of the court's second extended deadline.

Petitioner nonetheless failed to do so.

 The district court stated the following regarding Petitioner's objections to the R&R 2

that Petitioner included as an appendix to his "Motion to Expand the Record":

Petitioner basically rehashes the same arguments raised in his Response to

Defendants' Motion for Summary Judgment. These issues were adequately and

correctly analyzed by Magistrate Judge Saldana, whose findings of fact and

conclusions of law were adopted by this Court. The Court again considered the

issues when it denied Petitioner's motion to alter or amend the judgment.

Because Petitioner failed to raise any new arguments in his out-of-time motions for review of

the R&R, and because the district court in fact considered Petitioner's arguments despite them

being out of time, we find any purported abuse of discretion to be harmless error.

4

Moreover, the district court explicitly stated that it would grant no

additional extensions of time after granting Petitioner's first motion for

additional time. Despite this, and rather than attempt to file objections to the

magistrate judge's R&R once the lockdown was over and power was restored,

Petitioner filed a second Motion seeking an additional thirty days to prepare his

objections. Petitioner then filed no substantive objections to the R&R until

October 20, 2008, a month after power (and presumably library privileges) was

restored. These circumstances do not so much show excusable neglect as they 2

show a party seeking to set his own deadlines.

Petitioner also argues that he assumed the district court's order granting

his first motion for extension of time contained a typographical error, which

should have allowed him until September 28, 2008 to file objections. This

argument is wholly without merit. The district court's deadline was clear in the

order. All other motions denied.

AFFIRMED.

Case: 09-40091 Document: 00511097610 Page: 4 Date Filed: 04/30/2010