United States District Court, N.D. New York
SHANNON C. DICKINSON, Plaintiff,
NEW YORK STATE COMMISSION OF CORRECTION; et al., Defendants.
APPEARANCES: SHANNON C. DICKINSON Plaintiff, pro se
DECISION AND ORDER
J. McAvoy Senior, U.S. District Judge.
plaintiff Shannon C. Dickinson commenced this action in July
2016, during his confinement at the Warren County
Correctional Facility. See generally Dkt. No.
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.
Notice of Appeal from the August Order and Judgment was duly
filed by the Clerk as of October 17, 2016. See Dkt.
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.
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 ...