Opinion
21-CV-6523 (LTS)
12-14-2021
LUIS JAIMES, Plaintiff, v. STEPHANIE KAPLAN, Legal Aid Society, Defendant.
ORDER
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is currently incarcerated in the North Infirmary Command on Rikers Island, brings this action pro se. By order entered September 7, 2021, the Court dismissed this action without prejudice for Plaintiff's failure to pay the filing fees or submit an IFP application and prisoner authorization form. This matter is now before the Court on Plaintiff's motion for an extension of time to appeal the order of dismissal.
DISCUSSION
Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure requires a notice of appeal in a civil case to be filed within 30 days of entry of judgment. See Fed. R. App. P. 4(a)(1)(A). The Court entered judgment dismissing this action on September 7, 2021. On October 15, 2021, the Court received Plaintiff's notice of appeal and his motion for an extension of time to appeal. (ECF No. 5-6.) Under the “prison mailbox” rule, however, a document is deemed filed with the Court on the date a prisoner gives it to prison officials for mailing - not the date that the Court receives it. See Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that notice of appeal was deemed filed when prisoner placed it in the prison mailing system for mailing). Plaintiff signed his notice of appeal and motion for an extension of time to appeal on October 5, 2021, and the Court assumes that he gave the documents to prison officials for mailing on the same date. See Hardy v. Conway, 162 Fed.Appx. 61, 62 (2d Cir. 2006) (“[W]e have never required prisoners to provide affidavits of service to verify when they give their documents to prison officials. Indeed, in the absence of contrary evidence, district courts in this circuit have tended to assume that prisoners' papers were given to prison officials on the date of their signing.”). Accordingly, because Plaintiff's appeal was filed within the 30-day deadline, the Court denies Plaintiff's motion for an extension of time to appeal as unnecessary.
The district court may extend the time to file a notice of appeal if the motion for an extension of time is filed within thirty days of the expiration of the time to file notice of appeal, and the moving party shows excusable neglect or good cause for untimely filing. See Fed. R. App. P. 4(a)(5)(A).
Plaintiff indicates that the “crisis” at Rikers Island due to the Covid-19 pandemic prevented his IFP application from being mailed out. (ECF 6.) This would provide good cause to extend the time to appeal if Plaintiff's appeal was late-which it isn't.
The Court notes that “[t]he 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). The Court therefore cannot take any action to reconsider the order of dismissal while his appeal is pending with the United States Court of Appeals for the Second Circuit. The Court notes, however, that because this action was dismissed without prejudice to Plaintiff's refiling it, Plaintiff has the option of refiling the complaint (together with an IFP application and prisoner authorization form), instead of pursuing an appeal. Copies of these forms are attached to this order.
CONCLUSION
Plaintiff's motion for an extension of time to appeal (ECF No. 6) is denied as unnecessary. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.