Summary
instructing the plaintiff to withdraw his appeal so the district court would regain jurisdiction and could reopen the case based on new information
Summary of this case from In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.Opinion
20-CV-9405 (CM)
01-07-2021
CYRIL SHEPPARD, Plaintiff, v. NEW YORK CITY DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER :
By order dated December 15, 2020, the Court dismissed this action for Plaintiff's failure to either pay the filing fees or submit an application to proceed in forma pauperis ("IFP) and Prisoner Authorization. (ECF No. 5.) Plaintiff was not charged a filing fee for this action, and the action was dismissed without prejudice to Plaintiff's bringing his claims in a new complaint.
On December 19, 2020, Plaintiff gave his IFP Application and Prisoner Authorization to prison officials for mailing, and the Court received those documents on December 22, 2020. (ECF Nos. 7-8.) Plaintiff also submitted a notice of appeal, in which he explains that his delay in returning the IFP Application and Prisoner Authorization was due to problems at the facility where he is incarcerated. (ECF No. 9.)
Plaintiff also requested an extension of time to appeal, even though his appeal was not late.
DISCUSSION
"The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Because Plaintiff's appeal divests this Court of jurisdiction over the action, the Court cannot reopen this matter while Plaintiff's appeal of the order of dismissal is pending, even though Plaintiff has now submitted his IFP Application and Prisoner Authorization.
If a party (1) files a motion under Federal Rule of Civil Procedure 60(b) within 28 days after judgment is entered, see Fed. R. App. P. 4(a)(4)(A)(vi), and (2) files a notice of appeal before the district court disposes of that motion, see Fed. R. App. P. 4(a)(4)(B)(i), the notice of appeal does not become "effective" until after the district court rules on the motion. Here, however, Plaintiff did not submit a motion for reconsideration.
Accordingly, should Plaintiff wish to proceed with this action, he must withdraw his appeal in the Second Circuit and notify this Court within 30 days that he has done so. If the Court receives such notification within 30 days and regains jurisdiction to act in this matter, the Court will reopen this case based on Plaintiff's filing of the IFP Application and Prisoner Authorization.
Once the Court reopens this matter, the complaint will be screened under 28 U.S.C. § 1915(e)(2)(B). --------
Alternatively, because this action was dismissed without prejudice, nothing in this action prevents Plaintiff from filing a new complaint, together with an IFP Application and Prisoner Authorization, asserting the claims that he intended to raise in this matter. The Court therefore directs the Clerk of Court to send Plaintiff a prisoner civil rights complaint form with this order. If Plaintiff chooses to bring a new action instead of pursuing an appeal, his complaint will be assigned a new docket number, and he should not include this docket number on the new complaint.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, noting service on the docket. The Court grants Plaintiff 30 days from the date of this order to withdraw his appeal and notify this Court that he has done so. If Plaintiff notifies the Court within 30 days that he has withdrawn the appeal, and the Court regains jurisdiction to act in this matter, the Court will reopen this case and address his IFP Application.
Alternatively, because this action was dismissed without prejudice and before Plaintiff was charged any filing fees, Plaintiff can simply commence a new action asserting the same claims. For Plaintiff's convenience, a prisoner civil rights complaint form is attached to this order, and the Clerk of Court is directed to include an IFP Application and Prisoner Authorization with this order. SO ORDERED. Dated: January 7, 2021
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge __________ Write the full name of each plaintiff. -against- __________ Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write "see attached" in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV. ___CV__________
(Include case number if one has been assigned) COMPLAINT
(Prisoner) Do you want a jury trial?
[ ] Yes [ ] No
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. LEGAL BASIS FOR CLAIM
State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a "Bivens" action (against federal defendants). [ ] Violation of my federal constitutional rights [ ] Other: __________
II. PLAINTIFF INFORMATION
Each plaintiff must provide the following information. Attach additional pages if necessary. __________
First Name __________
Middle Initial __________
Last Name __________ State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit. __________ Prisoner ID # (if you have previously been in another agency's custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) __________
Current Place of Detention __________
Institutional Address __________
County, City __________
State __________
Zip Code
III. PRISONER STATUS
Indicate below whether you are a prisoner or other confined person: [ ] Pretrial detainee [ ] Civilly committed detainee [ ] Immigration detainee [ ] Convicted and sentenced prisoner [ ] Other: __________
IV. DEFENDANT INFORMATION
To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 2:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 3:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 4:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code
V. STATEMENT OF CLAIM
Place(s) of occurrence: __________ Date(s) of occurrence: __________
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. __________
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. __________
VI. RELIEF
State briefly what money damages or other relief you want the court to order. __________
VII. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. __________
Dated
__________
Plaintiff's Signature __________
First Name __________
Middle Initial __________
Last Name __________
Prison Address __________
County, City __________
State __________
Zip Code Date on which I am delivering this complaint to prison authorities for mailing: __________