HENRY EPPS Schenectady, New York, Plaintiff Pro Se.
William C. Firth, Esq., BAILEY, KELLEHER & JOHNSON, P.C., Albany, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced the within action pursuant to 42 U.S.C. § 1983 claiming that defendants The City of Schenectady and John Doe ("defendants") violated his constitutional rights. Plaintiff also asserted state law causes of action for battery and negligence. On August 28, 2012, defendants filed a motion seeking summary judgment and dismissal of plaintiff's complaint. On February 27, 2013, the Court issued an Order granting defendants' motion. (Dkt. No. 32). On the same day, the Court issued a separate Judgment in favor of defendants. (Dkt. No. 33).
On April 24, 2013, plaintiff filed a motion for permission to proceed with his appeal in forma pauperis and filed a Notice of Appeal with a letter attached to said Notice. (Dkt. Nos. 37, 38). On May 3, 2013, the Court issued an Order denying plaintiff's request without prejudice to renew in compliance with Rule 24(a)(1) of the Federal Rules of Appellate Procedure. (Dkt. No 40). On May 10, 2013, in response to that Order, plaintiff filed a renewed application to proceed with his appeal in forma pauperis. (Dkt. No. 42). On May 30, 2013, this Court issued an Order denying plaintiff's request to proceed in forma pauperis. (Dkt. No. 45).
On July 26, 2013, the United States Court of Appeals for the Second Circuit issued a Mandate deferring a ruling on plaintiff's motion for leave to proceed in forma pauperis on his appeal and remanding the case to the District Court with directions to construe plaintiff's letter (Dkt. No. 38) as a request for an extension of time to file a notice of appeal from the underlying judgment. The Circuit directed this Court to decide whether such motion should be granted.
"[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Mears v. Montgomery, 512 F.Appx. 100, 102 (2d Cir. 2013) (citing Bowles v. Russell, 551 U.S. 205, 214 (2007)). Federal Rule of Appellate Procedure 4(a)(1) and 28 U.S.C. § 2107 require an appellant to file a notice of appeal within 30 days of the entry of the judgment or order being appealed. Id.
I. Rule 4(a)(5)
Federal Rule of Appellate Procedure 4(a)(5) provides:
Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this ...