Acevedo v. Capra

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _____________________________________________x

SAMUEL ACEVEDO, et al.,

Petitioners,

-against- 20-cv-07361 (CM)(SN)

MICHAEL CAPRA,

Respondent.

______________________________________________x

RESPONSE TO LETTER REQUESTING DIRECTION IN CONNECTION WITH A POSSIBLE INTERLOCUTORY APPEAL

McMahon, J.: On June 23, 2021, the Court entered a decision and order dismissing the present petition for habeas corpus under 28 U.S.C. § 2254 “without prejudice to repleading the allegations under the correct statute.” (Dkt. 26.) On June 25, the Court received a letter from Petitioners asking the court to certify the dismissal of the petition for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

I apologize for having used confusing language in my opinion. It was my intention to dismiss the case without prejudice, so that the plaintiffs could decide how they wanted to proceed – either take an immediate appeal or bring a new action under what this court believes to be the correct statute.1 From such an order, which is a final decision per 28 U.S.C. § 1291, an immediate appeal lies. Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 220 (2d Cir. 2006).

Despite the fact that there is no mention in my decision and order of the word “amend,” I now appreciate that what I wrote could be read as dismissing with leave to amend, which is not a final order. So let me clear up any confusion.

1 There are new and different impediments to filings under Section 1983 and the P.L.R.A. – There include not only entirely different exhaustion requirements, but, in this district, a requirement that each prisoner plaintiff file his/her own action and pay his/her own filing fee; we do not allow a large number of individuals to bring conditions of confinement cases under a single caption and with the payment of a single filing fee, as this would vitiate Congress’ stated intention to require prisoners bringing suit under the P.L.R.A. to pay a full filing fee. See Miller v. Annucci, No. 18-CV-37 (CM) (S.D.N.Y. Feb. 27, 2018); see also Hagan v. Rogers, 570 F.3d 146, 155 (3d Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004); Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001), cert. denied sub nom. Hubbard v. Hopper, 534 U.S. 1136 (2002). I thus quite deliberately did not use the word “amend” or explicitly grant leave to amend in the original decision and order dismissing the complaint. I hereby amend the decision and order dated June 23, 2021 (dkt. 26) by adding the following language to the conclusion of the opinion: The Clerk of Court is hereby directed to dismiss the petition without prejudice and to close the file. Dated: June 29, 2021 New York, NY / fy 4 } Ve ([ phen fo °

US.D.J.

BY ECF TO COUNSEL FOR PETITIONRS