Virgo v. Wright et al

Filing 13

ORDER denying 11 Motion for Extension of Time to File Notice of Appeal. Plaintiff's request for an extension of time to appeal (ECF No. 11) is denied. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. (Signed by Judge Louis L. Stanton on 10/13/2021) (sac) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIRGILLIO VIRGO,
Plaintiff,

17-CV-10006 (LLS)

-against-

ORDER

JOHN WRIGHT; SGT. LOPEZ,
Defendants.
LOUIS L. STANTON, United States District Judge:

On August 14, 2018, the Court dismissed the action as frivolous, noted that Plaintiff had
filed a number of frivolous or otherwise nonmeritorious cases in this Court and in the United
States District Court for the Eastern District of Pennsylvania, and ordered Plaintiff to show cause
by declaration within thirty days why he should not be barred from filing further actions in forma
pauperis (IFP) in this Court without prior permission. Plaintiff did not file a declaration as
directed, and by order dated September 21, 2018, the Court barred Plaintiff from filing future
civil actions IFP in this Court without first obtaining from the Court leave to file. See 28 U.S.C.
§ 1651. More than three years later, on October 8, 2021, Plaintiff moved for an extension of time
to appeal. For the reasons set forth below, Plaintiff’s motion for an extension of time to appeal
(ECF No. 11) is denied.
DISCUSSION
Under Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a notice of appeal in
a civil case must be filed within thirty days after entry of judgment. A district court may grant a
limited extension of time to file a notice of appeal if: (1) a party moves for the extension no later
than thirty days after the time prescribed by Rule 4(a) expires; and (2) the moving party
establishes excusable neglect or good cause. Fed. R. App. P. 4(a)(5).

Because Plaintiff’s motion was filed more than three years after the entry of judgment,
the Court lacks the authority to grant Plaintiff the relief he seeks. See Goode v. Winkler, 252 F.3d
242, 245 (2d Cir. 2001) (holding that district court had no authority to consider pro se motion
under Fed. R. App. P. 4(a)(5) filed over thirty days after expiration of initial appeal period).
Plaintiff must seek permission to file a late notice of appeal from the United States Court of
Appeals for the Second Circuit.
CONCLUSION
Plaintiff’s request for an extension of time to appeal (ECF No. 11) is denied.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket.
SO ORDERED.
Dated:

October 13, 2021
New York, New York
Louis L. Stanton
U.S.D.J.

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