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Dickinson v. New York State Commission of Correction

United States District Court, N.D. New York

June 9, 2017

SHANNON C. DICKINSON, Plaintiff,
v.
NEW YORK STATE COMMISSION OF CORRECTION; et al., Defendants.

          APPEARANCES: SHANNON C. DICKINSON Plaintiff, pro se Shawangunk.

          DECISION AND ORDER

          Thomas J. McAvoy Senior, U.S. District Judge.

         I. INTRODUCTION

         Pro se plaintiff Shannon C. Dickinson commenced this action in July 2016, during his confinement at the Warren County Correctional Facility. See generally Dkt. No. 1.[1] Upon review of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(ii) and 28 U.S.C. § 1915A(1), this Court concluded that plaintiff's claims that his constitutional rights were violated when his grievance appeals to the New York Commission of Correction ("COC") were not properly investigated and timely responded to were not cognizable in this Section 1983 action and were subject to dismissal. See Dkt. No. 5 ("August Order"). Judgment of dismissal was duly entered by the Clerk. Dkt. No. 6.

         Plaintiff's Notice of Appeal from the August Order and Judgment was duly filed by the Clerk as of October 17, 2016. See Dkt. No. 9.[2]

         In a Mandate issued on June 2, 2017, the Second Circuit, having determined that plaintiff's "notice of appeal was untimely filed, " remanded the case to this Court with instructions "to construe Dickinson's notice of appeal as a motion to reopen under Federal Rule of Appellate Procedure 4(a)(6) and to consider whether such motion should be granted." Dkt. No. 17 at 1-2.

         II. DISCUSSION

         Rule 4(a)(1) of the Federal Rules of Appellate Procedure provides with certain exceptions not relevant in this action, that a notice of appeal in a civil action must be filed with the district court clerk within 30 days "after entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1). Rule 4(a)(6) of the Federal Rules of Appellate Procedure provides that a district court may reopen the time for appeal if the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6). If the foregoing conditions are met, the appeal period may be reopened for a period of 14 days from the date of the order reopening the time for appeal. Id. The Second Circuit has stated that

[t]o qualify under subdivision (6), the movant must establish: (1) that he was entitled to notice of the entry of the judgment; (2) that he did not receive such notice from the clerk or any party within 21 days of its entry; (3) that no party would be prejudiced by the extension; and (4) that he moved within 180 days of entry of the ...

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