Harnage v. Dzurenda et al

Filing 22

ORDER denying 15 Motion for Judgment; denying 16 Motion for Leave to Proceed in forma pauperis; denying 20 Motion to Stay. Signed by Judge Stefan R. Underhill on 4/7/2015. (Pollack, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMES A. HARNAGE,
Plaintiff,
v.
JAMES DZURENDA, et al.,
Defendants.

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CASE NO. 3:14-cv-885 (SRU)

RULING AND ORDER
Plaintiff James A. Harnage commenced this action in June 2014. On July 9, 2014, the
court filed its Initial Review Order dismissing all claims brought pursuant to 42 U.S.C. §§ 1985
and 1986 and all claims against Attorney Sydney Schulman. The court allowed Harnage to
amend his complaint regarding his claim that the denial of family law services to male inmates
violates his right to equal protection of the laws. On August 8, 2014, Harnage filed a motion for
reconsideration of the dismissal. On August 21, 2014, he filed an amended complaint. In
addition to elaborating on his equal protection claim, Harnage reasserted the claims previously
dismissed. On January 21, 2015, the court denied the relief requested in the motion for
reconsideration and ordered service of the amended complaint only with respect to the equal
protection claim. On February 19, 2015, Harnage filed a notice of interlocutory appeal, a motion
seeking entry of final judgment as to the dismissed claims and a motion to proceed in forma
pauperis on appeal. On March 9, 2015, he filed a motion seeking to stay this action pending
appeal. For the reasons that follow, Harnage’s motions are denied.

I.

Motion for Entry of Final Judgment [Doc. #15]
Harnage asks the court to enter a partial final judgment on the dismissed claims to enable

him to immediately appeal the dismissal.
As a general rule, “a final judgment is proper only after the rights and liabilities of all the
parties to an action have been adjudicated.” Hogan v. Consolidated Rail Corp., 961 F.2d 1021,
1024-25 (2d Cir. 1992). Rule 54(b), Fed. R. Civ. P., provides an exception by empowering the
district court to enter judgment on some, but not all, claims or parties. Such a judgment is
proper, however, “only if the court expressly determines that there is no just reason for delay.”
Fed. R. Civ. P. 54(b). In analyzing whether there is a just reason for delay, the court considers
whether “immediate appeal would be ‘in the interest of sound judicial administration.’” L-7
Designs, Inc. v. Old Navy, LLC, 964 F. Supp. 2d 299, 317 (S.D.N.Y. 2013) (quoting Ginett v.
Computer Task Grp., Inc., 962 F.2d 1085, 1092 (2d Cir. 1992)). The court evaluates any undue
hardship that the parties may suffer absent an immediate appeal as well as judicial efficiency.
Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980). A Rule 54(b) exception is
granted sparingly; “federal policy generally disfavors ‘piecemeal’ appellate litigation.” Ginett,
962 F.2d at 1093.
In support of his motion, Harnage merely states that the dismissed claims are all distinct
from the remaining claims. Merely because a claim may be separable from the as yet unresolved
claims, does not mandate a finding that the claim is immediately appealable. Curtiss-Wright
Corp., 446 U.S. at 8. The remaining claim against various correctional officials concerns the
disparate legal services provided to men and women prisoners. The claim against Attorney
Schulman was for the denial of legal services with regard to a family law matter, services that
are provided to women prisoners. Thus, although Harnage specifically excluded Attorney
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Schulman from the count of the complaint addressed to the correctional officials, those claims
are not distinct. There is no reason to disregard the well-established policy of avoiding
piecemeal appellate litigation. Harnage’s motion for entry of judgment is denied.
II.

Motion to Proceed In Forma Pauperis on Appeal [Doc. #16]
An appeal may not be taken in forma pauperis if the district court certifies that the appeal

is not taken in good faith. 28 U.S.C. § 1915(a)(3). The Second Circuit has instructed the district
courts that
an application for leave to appeal in forma pauperis will have sufficient substance
to warrant consideration only if, in addition to an adequate showing of indigence
and of citizenship, it identifies with reasonable particularity the claimed errors
which will be the basis for the appeal. If these requirements are satisfied, and if
on consideration the trial judge is conscientiously convinced that there is no
substantial question for review and that an appeal would be futile, or if he is
convinced that there is no reasonable basis for the claims of alleged error, it is the
duty of the trial judge, albeit not a pleasant duty, to certify that the appeal is not
taken in good faith.
United States v. Farley, 238 F.2d 575, 576 (2d Cir. 1956) (internal citations and quotation marks
omitted).
There is no basis for the court to grant in forma pauperis status for the interlocutory
appeal. After conducting an initial review of the complaint pursuant to 28 U.S.C. § 1915A, I
dismissed all claims against Attorney Schulman because he is not a state actor and, therefore, not
subject to suit under 42 U.S.C. § 1983.1 Harnage has since filed a lawsuit against Attorney
Schulman in state court. See Doc. #10 at 6, ¶44. I dismissed all claims pursuant to 42 U.S.C. §§
1985 and 1986 because there was no factual basis for the claims.
Because, following section 1915A review, I held that the dismissed claims were not

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Harnage specifically states that he is bringing suit under section 1983. See Doc. #10 at

4, ¶25.
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plausible, an appeal in forma pauperis from that order would not be taken in good faith.
Accordingly, Harnage’s motion is denied.
III.

Motion for Stay Pending Appeal [Doc. #20]
Harnage also seeks a stay of this proceeding during the pendency of his interlocutory

appeal. Issuance of a stay is committed to the discretion of the district court. See Niken v.
Holder, 556 U.S. 418, 433 (2009). In evaluating a request for a stay pending appeal, the district
court evaluates four factors: (1) the likelihood of success on the merits of the appeal; (2)
irreparable injury should a stay be denied; (3) substantial injury to the party opposing the stay
should a stay be granted; and (4) the public interest. See Mohammed v. Reno, 309 F.3d 95, 100
(2d Cir. 2002).
In support of his motion, Harnage only states that the questions on appeal relate to any
discovery he might seek and argues that he could be “irreparably prejudiced if this matter
proceeds while the appeal is pending. He does not explain the nature of the possible prejudice.
Delay in prosecuting a case against defendant Schulman or possibly increased litigation
expenses do not constitute irreparable injury. See L-7 Designs, 964 F. Supp. 2d at 320 (citing
cases for the proposition that delay and litigation expenses do not establish irreparable harm).
Nor, in light of the determination that the dismissed claims were not plausible, has Harnage
demonstrated a likelihood of success on the merits of of his appeal. The request for stay pending
appeal is denied.
IV.

Conclusion
Harnage’s motions for entry of final judgment [Doc. #15], leave to proceed in forma

pauperis on appeal [Doc. #16], and stay pending appeal [Doc. #20] are DENIED.
SO ORDERED this 7th day of April 2015, at Bridgeport, Connecticut.
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/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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