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Escamilla v. Escamilla

United States District Court, N.D. New York

April 7, 2017

GEORGE ESCAMILLA, a/k/a Jorge M. Escamilla, Plaintiff,
v.
KATHLEEN T. ESCAMILLA, et al., Defendants.

          DECISION AND ORDER

          Lawrence E. Kahn, U.S. District Judge

         I. BACKGROUND

         Plaintiff George Escamilla commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983.[1] Dkt. No. 7 (“Amended Complaint”).[2] The Amended Complaint named the following as defendants: Kathleen T. Escamilla (“K. Escamilla”), New York State, Broome County Criminal Court, and Carl J. Silverstein. Id. at 3. On December 18, 2014, Plaintiff requested leave to proceed with the action in forma pauperis. Dkt. No. 8 (“IFP Application”).

         By Decision and Order filed on March 13, 2015, the Court granted Plaintiff's IFP Application, but found that the Amended Complaint failed to state a claim upon which relief could be granted and sought relief against parties who were immune from suit under § 1983, and was therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Dkt. No. 17 (“March 2015 Order”) at 2, 9. Specifically, the Court found that (1) Plaintiff's claim that K. Escamilla gave false testimony at a criminal trial was barred by the absolute immunity accorded to trial witnesses;[3] (2) Plaintiff's claims against New York State were barred by Eleventh Amendment immunity; (3) Broome County Criminal Court was not a “person” within the meaning of § 1983 and, in any event, because it is part of the New York State Unified Court System, Broome County Criminal Court was entitled to Eleventh Amendment immunity; and (4) Plaintiff failed to state a claim against Silverstein under § 1983 because Silverstein was not a state actor. Id. at 5-8. On March 13, 2015, judgment was entered dismissing Plaintiff's action in its entirety. Dkt. No. 18 (“March 2015 Judgment”).[4]

         On March 24, 2015, Plaintiff filed a notice of appeal from the March 2015 Order to the Second Circuit Court of Appeals. Dkt. No. 19 (“March 2015 Appeal”). Concurrent with the March 2015 Appeal, Plaintiff filed motions with the Second Circuit seeking appointment of counsel, leave to amend his Amended Complaint, release from prison, vacatur of his sentence, and expungement of his criminal record. Id. By mandate of the Second Circuit issued on December 9, 2015, Plaintiff's March 2015 Appeal was dismissed because it “lack[ed] an arguable basis either in law or in fact.” Dkt. No. 21 (“December 2015 Mandate”).[5] The December 2015 Mandate also denied each of Plaintiff's motions. Id.

         On February 3, 2017, Plaintiff filed a submission with the Second Circuit that he described as a “notice of appeal.” Dkt. No. 23 (“February 2017 Notice of Appeal”). The Second Circuit forwarded Plaintiff's February 2017 Notice of Appeal to the Clerk of this Court pursuant to Federal Rule of Appellate Procedure 4(d), with directions to file the submission as a notice of appeal on the Northern District of New York docket in this action as of February 3, 2017. Dkt. No. 23-8 (“Second Circuit Transfer Notice”).[6] On February 17, 2017, the Second Circuit sent a notice to Plaintiff stating that the February 2017 Notice of Appeal had been “mistakenly” sent to the Second Circuit pursuant to Federal Rule Appellate Procedure 4(d) because (i) Plaintiff's appeal of this Court's March 2015 Order was closed, and (ii) the February 2017 Notice of Appeal “didn't refer to an order of the District Court that may be appealed to the Court of Appeals.” Dkt. No. 25. Therefore, the Second Circuit advised Plaintiff and this Court that “no further action [would] be taken by” the Second Circuit regarding the February 2017 Notice of Appeal. Id.

         Presently before the Court are Plaintiff's motions requesting permission to file an appeal to the Second Circuit, Dkt. No. 26, to overturn his state court conviction, Dkt. No. 27, to expunge his criminal records, Dkt. No. 28, and to “restore [his] good name” and award “monetary” damages, Dkt. No. 29.

         II. DISCUSSION

         A. The February 2017 Notice of Appeal

         As noted above, the Second Circuit rejected Plaintiff's February 2017 attempt to appeal. Dkt. No. 25. A search of the Federal Judiciary's Public Access to Court Electronic Records Service (“PACER”) for “George Escamilla” and “Jorge M. Escamilla” yielded only one appeal filed in the Second Circuit by Plaintiff: the appeal of this Court's March 2015 Order dismissing this action. Escamilla v. Escamilla, No. 15-1036 (2d Cir. filed Apr. 6, 2015). The Second Circuit dismissed that appeal more than a year ago. Dec. 2015 Mandate. Plaintiff therefore has no appeal pending in the Second Circuit. In light of the foregoing, the Clerk of the Court is directed to terminate any reference to a pending appeal in this action.

         B. Motion for Permission to File an Appeal

         Pursuant to 28 U.S.C. § 2107(a), parties must file notices of appeal within thirty days of the entry of the judgment being appealed. Bowles v. Russell, 551 U.S. 205, 208 (2007); Fed. R. App. P. 4(a)(1). “District courts have limited authority to grant an extension of the 30-day time period.” Bowles, 551 U.S. at 208. Rule 4(a)(5) of the Federal Rules of Appellate Procedure authorizes courts to extend the time in which a party may file a notice of appeal in certain circumstances. Rule 4(a)(5) provides:

(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 Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given ...

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