David M. Shipp v. Dorothy Fink, Acting Secretary, Department of Health and Human Services

• Court: District Court, S.D. New York
• Decided: November 13, 2025
• Docket: 1:25-cv-00978
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID M. SHIPP, Plaintiff, -against- 25-CV-0978 (LLS) DOROTHY FINK, ACTING SECRETARY, ORDER DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff brings this action pro se. By order dated June 20, 2025, Chief Judge Laura Taylor Swain dismissed the complaint, but granted Plaintiff 30 days’ leave to replead his claim. (ECF 12.) The action was subsequently reassigned to the undersigned. Plaintiff filed an amended complaint, and, by order dated August 7, 2025, the Court dismissed the amended complaint for failure to state a claim on which relief may be granted. (ECF 14.) The Clerk of Court entered civil judgment on August 8, 2025. (ECF 15.) In the days after judgment was entered, Plaintiff filed four additional documents. By order dated August 21, 2025, the Court construed those submissions as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e), a motion for reconsideration under Local Civil Rule 6.3, and a motion for relief from a judgment or order under Fed. R. Civ. P. 60(b), and denied the motion. (ECF 20.) On November 2, 2025, Plaintiff filed a motion for an extension of time to file a notice of appeal. (ECF 24.) In his motion, Plaintiff references previous submissions that he emailed to the

court, which he describes as an “Extension of Time Request to File a More Complete Motion for Leave to Appeal In Forma Pauperis and Prelude,” and which were filed on October 17, 2025, and 24, 2025. Plaintiff has not filed a notice of appeal. Under Fed. R. App. P. 4(a)(1)(A), a notice of appeal in a civil case must be filed within 30 days after entry of judgment. Rule 4(a)(1)(B)(ii) of the Federal Rules of Appellate Procedure requires that, if one of the parties is a United States agency, a notice of appeal in a civil case may be filed within 60 days after entry of the judgment. See Fed. R. App. P. 4(a)(1)(B)(ii). “[T]he taking of an appeal within the prescribed time is mandatory and jurisdictional.” In re WorldCom,

Inc., 708 F.3d 327, 329 (2d Cir. 2013) (citation and internal quotation marks omitted). The district court may extend the time to file a notice of appeal, however, if the motion is filed within 30 days of the expiration of the time to file notice of appeal, and if the moving party shows excusable neglect or good cause for untimely filing. See Fed. R. App. P. 4(a)(5)(A). Here, the Clerk of Court entered judgment on August 8, 2025. The 60-day period to file a notice of appeal expired on October 7, 2025. Plaintiff filed his motion on November 2, 2025, within 30 days of the expiration of the time to file a notice of appeal. Because the motion was timely filed, the Court has authority to extend the time to appeal. Cf. Cohen v. Empire Blue Cross & Blue Shield, 142 F.3d 116, 118 (2d Cir. 1998) (per curiam) (holding that the court “lacks

jurisdiction to grant any extension motion that is not filed within Rule 4(a)(5)’s 30–day ‘grace period.’”). In his motion, Plaintiff indicates that he previously submitted emails to the Court which, although mislabeled, can be construed as attempting to seek an extension of time to file a notice of appeal. Accordingly, for good cause shown, the Court grants Plaintiff’s motion. The Court directs Plaintiff to file a notice of appeal within 14 days of the date of this order. The 14- day deadline is mandatory, and the Court cannot further extend the time to file. See Fed. R. App. P. 4(a)(5)(C). CONCLUSION Plaintiff’s request for an extension of time to file a notice of appeal (ECF 24) is granted. Plaintiff is directed to file a notice of appeal within 14 days of the date of this order. No further extension may be granted. See Fed. R. App. P. 4(a)(5)(C). Plaintiff may seek permission to proceed in forma pauperis on appeal by completing, signing, and submitted the attached Application to Appeal In Forma Pauperis. SO ORDERED. Dated: November 13, 2025 New York, New York LOUIS L. STANTON U.S.D.J.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

— cv. □ ) (List the full name(s) of the plaintiff(s)/petitioner(s).) -against- MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

(List the full name(s) of the defendant(s)/respondent(s).)

I move under Federal Rule of Appellate Procedure 24(a)(1) for leave to proceed in forma pauperis on appeal. This motion 1s supported by the attached affidavit.

Dated Signature

Name (Last, First, MI)

Address City State Zip Code

Telephone Number E-mail Address (if available)

Application to Appeal In Forma Pauperis

______________________v. ______________________ Appeal No. __________________ District Court or Agency No. _________________ Affidavit in Support of Motion Instructions I swear or affirm under penalty of perjury that, Complete all questions in this application and then because of my poverty, I cannot prepay the docket sign it. Do not leave any blanks: if the answer to a fees of my appeal or post a bond for them. I believe question is "0," "none," or "not applicable (N/A)," I am entitled to redress. I swear or affirm under write that response. If you need more space to answer penalty of perjury under United States laws that my a question or to explain your answer, attach a separate answers on this form are true and correct. (28 sheet of paper identified with your name, your case's U.S.C. § 1746; 18 U.S.C. § 1621.) docket number, and the question number. Signed: _____________________________ Date: _____________________________ My issues on appeal are: (required):

1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly Amount expected next amount during the past month 12 months You Spouse You Spouse Employment $ $ $ $ Self-employment $ $ $ $ Income from real property (such as $ $ $ $ rental income) Interest and dividends $ $ $ $ Gifts $ $ $ $ Alimony $ $ $ $ Child support $ $ $ $ Retirement (such as social security, $ $ $ $ pensions, annuities, insurance) Disability (such as social security, $ $ $ $ insurance payments) Unemployment payments $ $ $ $ Public-assistance (such as welfare) $ $ $ $ Other (specify): $ $ $ $ Total monthly income: $0 $0 $0 $0

2. List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of Gross employment monthly pay $ $ $ 3. List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of Gross employment monthly pay $ $ $ 4. How much cash do you and your spouse have? $________ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial Institution Type of Account Amount you have Amount your spouse has $ $ $ $ $ $ If you are a prisoner seeking to appeal a judgment in a civil action or proceeding, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. 5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Home Other real estate Motor vehicle #1 (Value) $ (Value) $ (Value) $ Make and year: Model: Registration #: Motor vehicle #2 Other assets Other assets (Value) $ (Value) $ (Value) $ Make and year: Model: Registration #: 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse Amount owed to you Amount owed to your money spouse $ $ $ $ $ $ $ $ 7. State the persons who rely on you or your spouse for support.

Name [or, if a minor (i.e., underage), initials only] Relationship Age

8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Your Spouse Rent or home-mortgage payment (including lot rented for $ $ mobile home) Are real estate taxes included? [ ] Yes [ ] No Is property insurance included? [ ] Yes [ ] No Utilities (electricity, heating fuel, water, sewer, and telephone) $ $ Home maintenance (repairs and upkeep) $ $ Food $ $ Clothing $ $ Laundry and dry-cleaning $ $ Medical and dental expenses $ $ Transportation (not including motor vehicle payments) $ $ Recreation, entertainment, newspapers, magazines, etc. $ $ Insurance (not deducted from wages or included in mortgage payments) Homeowner's or renter's: $ $ Life: $ $ Health: $ $ Motor vehicle: $ $ Other: $ $ Taxes (not deducted from wages or included in mortgage $ $ payments) (specify): Installment payments Motor Vehicle: $ $ Credit card (name): $ $ Department store (name): $ $ Other: $ $ Alimony, maintenance, and support paid to others $ $ Regular expenses for operation of business, profession, or $ $ farm (attach detailed statement) Other (specify): $ $ Total monthly expenses: $ 0 $ 0 9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? [ ] Yes [ ] No If yes, describe on an attached sheet. 10. Have you spent — or will you be spending —any money for expenses or attorney fees in connection with this lawsuit? [ ] Yes [ ] No If yes, how much? $ ____________ 11. Provide any other information that will help explain why you cannot pay the docket fees for your appeal.

12. Identify the city and state of your legal residence. City __________________________ State ______________ Your daytime phone number: ___________________ Your age: ________ Your years of schooling: ________

Last four digits of your social-security number: _______ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

(List the full name(s) of the plaintiff(s)/petitioner(s).) CV ( y( ) -against- NOTICE OF APPEAL

Notice is hereby given that the following parties:

(list the names of all parties who are filing an appeal) in the above-named case appeal to the United States Court of Appeals for the Second Circuit from the Kjudgment CDlorder — entered on: (date that judgment or order was entered on docket) that:

(If the appeal is from an order, provide a brief description above of the decision in the order.)

Dated Signature’

“Each party filing the appeal must date and sign the Notice of Appeal and provide his or her mailing address and telephone number, EXCEPT that a signer of a pro se notice of appeal may sign for his or her spouse and minor children if they are parties to the case. Fed. R. App. P. 3{c){2). Attach additional sheets of paper as necessary. pe. 197990 4109