Opinion
1:19-CV-0204 (LLS)
12-18-2020
BENNIE GIBSON, Plaintiff, v. EMPLOYEES, SUPERVISORS ADM. OF DOCTORS NURST EAST ELMHURST HOSP MED STUDENTS, et al., Defendants.
ORDER :
By order dated September 21, 2020, the Court dismissed Plaintiff's claims under 42 U.S.C. § 1983 against staff members of the Mt. Sinai Hospital and the Lawrence Nursing Home, and any patients of the Lawrence Nursing Home, for failure to state a claim on which relief may be granted. The Court also dismissed Plaintiff's claims under § 1983 against staff members of the Downstate and Five Points Correctional Facilities and Elmhurst Hospital, in their individual capacities, for the same reason, but granted Plaintiff 30 days' leave to file an amended complaint to allege sufficient facts to state such claims, and to name the appropriate Downstate, Five Points, and Elmhurst staff members as defendants. The Court further dismissed Plaintiff's claims under § 1983 against Downstate and Five Points staff members in their official capacities because those officials are immune from suit as to those claims. And the Court dismissed Plaintiff's claims against Elmhurst staff members in their official capacities for failure to state a claim. (ECF 18.)
The Court warned Plaintiff that if he failed to file an amended complaint as to his claims under § 1983 against Downstate, Five Points, and Elmhurst staff members in their individual capacities, the Court would dismiss those claims for failure to state a claim, and would decline to consider, under its supplemental jurisdiction, Plaintiff's claims under state law. (Id. at 15.)
Plaintiff did not file an amended complaint. But eight days later, on September 29, 2020, he filed a letter "requesting more time for servicing Rule 4 Fed. R. Civ. Proc." (ECF 19, at 1.) In that letter, he states that there is "a situation with the Federal Courts, security company, NYPD and OMH. You have a group of people following [him] everywhere [he] go[es]. This is not paranoia, also they are selling people some type of medication, it is some type of synthetic drug they are passing off as cocaine." (Id. at 1-2.)
On October 2, 2020, Plaintiff filed another letter in which he expressed his dissatisfaction with the Court's September 21, 2020 order, and announced his intent to: (1) seek the undersigned's recusal, (2) file a motion for relief from a judgment or order under Rule 60(b) of the Federal Rules of Civil Procedure, and (3) file an amended complaint. (ECF 20). But Plaintiff has done none of those things.
On November 6, 2020, Plaintiff filed: (1) 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, (2) a notice of appeal, and (3) a motion for leave to proceed in forma pauperis on appeal. (ECF 21 & 22.) For the reasons discussed below, the Court denies the motion for an extension of time. The Court also grants the motion for leave to proceed in forma pauperis on appeal.
DISCUSSION
A litigant has 30 days from the entry date of the order or judgment he wishes to challenge to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A). The Court's September 21, 2020 order was entered one day later, on September 22, 2020. Thus, Plaintiff had until October 22, 2020, to file a notice of appeal. Plaintiff did not file his notice of appeal until November 6, 2020. Thus, his notice of appeal is untimely.
Under Rule 4(a)(5) of the Federal Rules of Appellate Procedure, however, a litigant may seek an extension of time to file a notice of appeal. The motion for an extension of time must be filed within 30 days of the expiration of the period to file a notice of appeal, and must also show excusable neglect or good cause. Fed. R. App. 4(a)(5)(A)(i), (ii). Plaintiff had until November 23, 2020, to file a motion for an extension of time. Plaintiff's motion is timely because Plaintiff filed it on November 6, 2020, but Plaintiff has failed to show excusable neglect or good cause.
The last day of the 30-day period in which Plaintiff could file a motion for an extension of time actually fell on Saturday, November 21, 2020. Because the last day of that period fell on a Saturday, the period was extended to the next court business day, Monday, November 23, 2020. See Fed. R. App. P. 26(a)(1)(C). --------
Courts consider four factors to determine whether a movant has shown excusable neglect: (1) the danger of prejudice to the nonmovant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'shp, 507 U.S. 380, 395 (1993)). The Second Circuit has taken a "hard line" with respect to determining when excusable neglect occurs. See In re WorldCom, Inc., 708 F.3d 327, 337-38 (2d Cir. 2013); Silivanch, 333 F.3d at 368. A litigant who, within the period of time to file a timely notice of appeal, becomes aware of the order or judgment that he wishes to appeal but who offers no credible reason why he did not file a timely notice of appeal cannot demonstrate excusable neglect. See Bass v. NYNEX, No. 02-CV-5171, 2004 WL 2674633, at *1, 3 (S.D.N.Y. Nov. 23, 2004); see also Silivanch, 333 F.3d at 366 ("[D]espite the flexibility of 'excusable neglect' and the existence of the four-factor test in which three of the factors usually weigh in favor of the party seeking the extension, we and other circuits have focused on the third factor").
Courts have held that unlike excusable neglect, good cause can be found when the fault in filing a late notice of appeal is beyond the movant's control. See, e.g., Ass'n of Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank Austria Creditanstalt AG, No. 04-CV-3600, 2010 WL 479658, at *2 (S.D.N.Y. Feb. 5, 2010) ("While excusable neglect applies in situations where there is fault, parties may invoke the good cause standard where the cause for missing the deadline was entirely beyond their control, such as where the Postal Service fails to deliver the notice of appeal.").
Plaintiff states nothing in his motion that shows that excusable neglect or good cause prevented him from filing a notice of appeal within 30 days after entry of the Court's September 21, 2020 order. Instead, he states that he:
tried to amend as ordered but realized [he] could not get all names as ordered of defendants. [He] did send [the] Court amended complaint twice and called pro se but [he] realized it would not be sufficient anyway. [He] also realized Hon. Judge Stanton was wrong to order [him] to have all names of defendants in first complaint before discovery. Please note, not aware if someone altered complaint given to Judge Stanton. He did not comment on sexual assault [at] Lawrence Nursing Home.(ECF 21.)
Plaintiff does not explain why he was able to file two letters before October 22, 2020 (the date on which the period to file a notice of appeal expired), but was unable to file a notice of appeal by that date. Accordingly, the Court denies Plaintiff's motion for an extension of time to file a notice of appeal.
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket.
The Court denies Plaintiff's motion for an extension of time to file a notice of appeal brought under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. (ECF 21.)
The Court grants Plaintiff's motion for leave to proceed in forma pauperis on appeal. (ECF 22.) SO ORDERED. Dated: December 18, 2020
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.