Rivera v. Annucci

S.D. New York

Rivera v. Annucci

DecidedSeptember 14, 2023

Docket1:22-cv-04787

StatusUnknown

This text of Rivera v. Annucci (Rivera v. Annucci) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rivera v. Annucci, (S.D.N.Y. 2023).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WILLIAM RIVERA, Plaintiff, 22-CV-4787 (LTS) -against- ORDER BONILLA NYS DIN# 98-A-7337; SUPT. MICHAEL CAPRA, SING SING CF, Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: On October 25, 2022, the Court dismissed this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and as time barred. On November 18, 2022, Plaintiff filed a motion for extension of time to file a notice of appeal, (ECF No.14), and a notice of appeal, (ECF No. 15.) For the reasons set forth below, Plaintiff’s motion for an extension of time to file a notice of appeal (ECF No. 14) is denied as unnecessary. DISCUSSION 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. “[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). Because Plaintiff’s time to file a notice of appeal had not expired, a motion for extension of time to appeal was unnecessary. Accordingly, Plaintiff’s request for an extension of time to appeal is denied as unnecessary.1

1 By Mandate issued on June 15, 2023, the United States Court of Appeals dismissed Plaintiff’s appeal because “it lack[ed] an arguable basis either in law or in fact.” (ECF No. 16.) CONCLUSION Plaintiff’s request for an extension of time to file a notice of appeal (ECF No. 14) is denied as unnecessary. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: September 14, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WILLIAM RIVERA, Plaintiff, 22-CV-4787 (LTS) -against- ORDER BONILLA NYS DIN# 98-A-7337; SUPT. MICHAEL CAPRA, SING SING CF, Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: On October 25, 2022, the Court dismissed this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and as time barred. On November 18, 2022, Plaintiff filed a motion for extension of time to file a notice of appeal, (ECF No.14), and a notice of appeal, (ECF No. 15.) For the reasons set forth below, Plaintiff’s motion for an extension of time to file a notice of appeal (ECF No. 14) is denied as unnecessary. DISCUSSION 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. “[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). Because Plaintiff’s time to file a notice of appeal had not expired, a motion for extension of time to appeal was unnecessary. Accordingly, Plaintiff’s request for an extension of time to appeal is denied as unnecessary.1

1 By Mandate issued on June 15, 2023, the United States Court of Appeals dismissed Plaintiff’s appeal because “it lack[ed] an arguable basis either in law or in fact.” (ECF No. 16.) CONCLUSION Plaintiff’s request for an extension of time to file a notice of appeal (ECF No. 14) is denied as unnecessary. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: September 14, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge

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