Jaimes v. Kaplan, No. 1:2021cv06523 - Document 7 (S.D.N.Y. 2021)
Court Description: ORDER denying 6 Motion for Extension of Time to File a Notice of Appeal. 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. (Signed by Judge Laura Taylor Swain on 12/14/2021) (sac) Transmission to Docket Assistant Clerk for processing.
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Jaimes v. Kaplan Doc. 7 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LUIS JAIMES, Plaintiff, 21-CV-6523 (LTS) -againstORDER STEPHANIE KAPLAN, Legal Aid Society, Defendant. 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). 1 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 1 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). Dockets.Justia.com Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 2 of 12 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 F. App’x 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. 2 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. 2 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. 2 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 3 of 12 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. Dated: December 14, 2021 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge 3 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 4 of 12 U NITED S TATES D ISTRICT C OURT S OUTHERN D ISTRICT OF N EW Y ORK _____CV_______________ (Include case number if one has been assigned) Write the full name of each plaintiff. -against- COMPLAINT (Prisoner) Do you want a jury trial? Yes No 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. 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. Rev. 11/17/17 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 5 of 12 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 III. State Zip Code 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: Page 2 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 6 of 12 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 Page 3 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 7 of 12 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. Page 4 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 8 of 12 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. Page 5 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 9 of 12 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 First Name Plaintiff’s Signature Middle Initial Last Name Prison Address County, City State Zip Code Date on which I am delivering this complaint to prison authorities for mailing: Page 6 Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 10 of 12 U NITED S TATES D ISTRICT C OURT S OUTHERN D ISTRICT OF N EW Y ORK (full name of the plaintiff/petitioner) CV ( )( -against- (full name(s) of the defendant(s)/respondent(s)) PRISONER AUTHORIZATION By signing below, I acknowledge that: (1) because I filed this action as a prisoner, 1 I am required by statute (28 U.S.C. § 1915) to pay the full filing fees for this case, even if I am granted the right to proceed in forma pauperis (IFP), that is, without prepayment of fees; (2) the full $350 filing fee will be deducted in installments from my prison account, even if my case is dismissed or I voluntarily withdraw it. I authorize the agency holding me in custody to: (1) send a certified copy of my prison trust fund account statement for the past six months (from my current institution or any institution in which I was incarcerated during the past six months); (2) calculate the amounts specified by 28 U.S.C. § 1915(b), deduct those amounts from my prison trust fund, and disburse those amounts to the Court. This authorization applies to any agency into whose custody I may be transferred and to any other district court to which my case may be transferred. Date Signature Prison Identification # Name (Last, First, MI) Address City State Zip Code 1 A “prisoner” is “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). SDNY Rev. 10/26/16 ) (Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.) Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 11 of 12 U NITED S TATES D ISTRICT C OURT S OUTHERN D ISTRICT OF N EW Y ORK (full name of the plaintiff or petitioner applying (each person must submit a separate application)) -against- CV ( ) ( ) (Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.) (full name(s) of the defendant(s)/respondent(s)) APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS I am a plaintiff/petitioner in this case and declare that I am unable to pay the costs of these proceedings and I believe that I am entitled to the relief requested in this action. In support of this application to proceed in forma pauperis (IFP) (without prepaying fees or costs), I declare that the responses below are true: 1. Are you incarcerated? Yes No (If “No,” go to Question 2.) I am being held at: Do you receive any payment from this institution? Yes No Monthly amount: If I am a prisoner, see 28 U.S.C. § 1915(h), I have attached to this document a “Prisoner Authorization” directing the facility where I am incarcerated to deduct the filing fee from my account in installments and to send to the Court certified copies of my account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). I understand that this means that I will be required to pay the full filing fee. 2. Are you presently employed? Yes No If “yes,” my employer’s name and address are: Gross monthly pay or wages: If “no,” what was your last date of employment? Gross monthly wages at the time: 3. In addition to your income stated above (which you should not repeat here), have you or anyone else living at the same residence as you received more than $200 in the past 12 months from any of the following sources? Check all that apply. (a) Business, profession, or other self-employment (b) Rent payments, interest, or dividends SDNY Rev: 8/5/2015 Yes Yes No No Case 1:21-cv-06523-LTS Document 7 Filed 12/14/21 Page 12 of 12 (c) Pension, annuity, or life insurance payments Yes No (d) Disability or worker’s compensation payments Yes No (e) Gifts or inheritances (f) Any other public benefits (unemployment, social security, food stamps, veteran’s, etc.) (g) Any other sources Yes No Yes No Yes No If you answered “Yes” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future. If you answered “No” to all of the questions above, explain how you are paying your expenses: 4. How much money do you have in cash or in a checking, savings, or inmate account? 5. Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value, including any item of value held in someone else’s name? If so, describe the property and its approximate value: 6. Do you have any housing, transportation, utilities, or loan payments, or other regular monthly expenses? If so, describe and provide the amount of the monthly expense: 7. List all people who are dependent on you for support, your relationship with each person, and how much you contribute to their support (only provide initials for minors under 18): 8. Do you have any debts or financial obligations not described above? If so, describe the amounts owed and to whom they are payable: Declaration: I declare under penalty of perjury that the above information is true. I understand that a false statement may result in a dismissal of my claims. Dated Signature Name (Last, First, MI) Prison Identification # (if incarcerated) Address Telephone Number City State E-mail Address (if available) IFP Application, page 2 Zip Code
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