Opinion
21-CV-0339 (CM)
08-04-2021
ALVIN FULTON, Plaintiff, v. MICHAEL CAPRA, ET AL., Defendants.
ORDER
COLLEEN McMAHON, United States District Judge:
Plaintiff, who was incarcerated in Sing Sing Correctional Facility when he brought this action, proceeds pro se. By order dated March 5, 2021, the Court denied Plaintiff's application to proceed in forma pauperis (“IFP”) and dismissed this action without prejudice because Plaintiff is barred under the three-strikes provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), from filing civil actions IFP while a prisoner. (ECF 5.). Judgment was entered the same day.
The Court further held that Plaintiff failed to show that he was in imminent danger of serious physical injury and that his claims have some nexus to such a danger, because his claims arose from an incident in the past at Sing Sing Correctional Facility and he had since been transferred to Greene Correctional Facility. (ECF 5.)
On April 5, 2021, the Court received from Plaintiff a notice of appeal, together with a motion for an extension of time to file a notice of appeal under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. (ECF 12-13.) For the reasons discussed below, the Court denies Plaintiff's pending motions.
STANDARD OF REVIEW
A litigant has 30 days from entry of the order or judgment he wishes to challenge to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A). When the last day of the 30-day period falls on the weekend, the expiration date is extended to the next business day. See Fed. R. App. P. 26(a)(1)(C). The judgment dismissing this action without prejudice was entered on March 5, 2021, and Plaintiff had until Monday, April 5, 2021, to file a timely notice of appeal. The Court received Plaintiff's notice of appeal on April 5, 2021. Accordingly, because Plaintiff's notice of appeal is timely, the Court denies Plaintiff's motion for an extension of time to file a notice of appeal as unnecessary.
Plaintiff submitted a declaration on July 13, 2021, detailing his concerns about issues at Greene Correctional Facility, which is in Coxsackie, New York, in the Northern District of New York. 28 U.S.C. § 112(a).
CONCLUSION
The Court denies Plaintiff's motion for an extension of time to file a notice of appeal (ECF 12) as unnecessary because Plaintiff's notice of appeal (ECF 13) is timely. The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.