Carolina v. Pafumi et al

Filing 48

ORDER denying as moot 45 Motion for Hearing; denying 47 Motion to Reopen Summary Judgment; and granting 46 Motion for Leave to File Appeal. Plaintiff's appeal must be filed on or before 03/20/14. Signed by Judge Vanessa L. Bryant on 02/18/14. (Rock, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TYRONE D. CAROLINA,
Plaintiff,

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v.
LT. MIKE PAFUMI, et al.,
Defendants.

CASE NO. 3:12-cv-163 (VLB)

February 18, 2014

RULING ON PENDING MOTIONS
On April 17, 2013, the court granted the defendants’ motion for summary
judgment. On May 10, 2013, the plaintiff filed a motion to reopen judgment and
afford him ninety days to file an objection to the motion. The court considered
the motion both as a motion to alter or amend judgment filed pursuant to Fed. R.
Civ. P. 59(e) and a motion for relief from judgment filed under Fed. R. Civ. P.
60(b). On June 20, 2013, the court denied the motion to reopen. The plaintiff now
has filed a second motion to reopen judgment, a motion for hearing and a motion
for leave to file an appeal.
I.

Motion to Reopen Judgment
The plaintiff has filed a second motion to open judgment and file a

response to the defendants’ motion for summary judgment. He does not indicate
whether he files his motion pursuant to Rule 59(e) or 60(b). A motion to alter or
amend judgment must be filed within twenty-eight days after the entry of
judgment. Fed. R. Civ. P. 59(e). As judgment entered on April 18, 2013 [Doc. #40],
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any motion to alter or amend judgment would be untimely. Thus, the court
considers the motion as filed pursuant to Rule 60(b)(1).
The court previously concluded that the plaintiff failed to show that he was
prevented from opposing the defendants’ motion for summary judgment by
mistake, inadvertence, surprise or excusable neglect. The court emphasized that
the plaintiff was not a novice litigator. He was aware that he could file a motion
for extension of time to file his response and that the court would probably grant
such a motion. The court also noted that the plaintiff did not require legal
assistance or access to the prison law library to file a motion for extension of
time. See Doc. #44.
The plaintiff now states that, after receiving the defendants’ motion for
summary judgment, he waited for legal help from Inmates’ Legal Assistance
Program or another attorney to whom he had been referred. He also states that
Attorney Michael Rubino from Inmates’ Legal Assistance Program advised him
“not to move forward until he finished his investigation.” Doc. #47 at 1. The fact
that the plaintiff was under the impression that he would receive legal assistance
from an attorney without an appearance in the case, an attorney of whom the
court would be unaware, does not excuse the plaintiff from seeking an extension
of time to obtain that assistance.
In addition, one of the documents attached to the plaintiff’s motion is a
June 25, 2012 letter from Attorney Rubino indicating that his medical reviewer
determined that the plaintiff stated a prima facie case. Doc. #47 at 28. This letter
suggests that Attorney Rubino had reviewed the case long before the defendants
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filed their motion for summary judgment. The plaintiff provides no
communication from Attorney Rubino advising him to take no action in the case.
Further, even if Attorney Rubino had provided that advice, the plaintiff should
have included that cautionary language to support a motion for extension of time.
The court again concludes that the plaintiff has not provided any reason
why he could not file a motion for extension of time. Thus, this is not a mistake
that warrants reopening this case. Nor has the plaintiff demonstrated that he was
prevented from filing his opposition to the defendants’ motion for summary
judgment for any other mistake or by inadvertence, surprise or excusable
neglect. The plaintiff’s motion to reopen judgment is denied.
II.

Motion for Hearing
The plaintiff seeks a hearing to address his arguments to the court. In light

of the denial of the motion to reopen, the motion for hearing is denied as moot.
III.

Motion for Leave to File Appeal
Finally, the plaintiff seeks leave to file an appeal. Judgment entered on

April 18, 2013. The plaintiff timely filed a motion to reopen judgment. Thus, the
thirty-day appeal period commenced on June 20, 2013, the date the court issued
the ruling on the motion to reopen judgment. See Fed. R. App. P. 4(a)(4)(A). The
appeal period ended on July 20, 2013.
The district court may, however, grant an extension of time to file an appeal
if the request is filed within thirty days after the appeal period expired, and the
party shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5)(A).
The court received the plaintiff’s motion on August 16, 2013, within the thirty-day
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period. Accordingly, the court construes the plaintiff’s motion as a motion for
extension of time to file an appeal and grants the motion. Plaintiff asserts in his
Motion for an Appeal he was told by an attorney from the Inmates Legal
Assistance Program that he had one year to file an appeal. [Doc. #46.] It appears
that Plaintiff was communicating with the Inmate Legal Assistance Program both
by phone and by mail during this period, see Attachments to Doc. #47, and the
Court construes him as misunderstanding that he had a year, rather than 30 days,
to appeal. This misunderstanding is sufficient to establish excusable neglect.
Plaintiff has 30 days from the date of this order to file his appeal.
IV.

Conclusion
The plaintiff’s motion to reopen judgment [Doc. #47] is DENIED and his

motion for hearing [Doc. #45] is DENIED as moot. The plaintiff’s motion for leave
to file an appeal [Doc. #46] is GRANTED.
SO ORDERED this 18th day of February 2014 at Hartford, Connecticut.
_/s/________
Vanessa L. Bryant
United States District Judge

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