Sheppard v. Department of Corrections et al

Filing 10

ORDER: The Clerk of Court is directed to mail a copy of this order to Plaintiff, noting service on the docket. The Court grants Plaintiff 30 days from the date of this order to withdraw his appeal and notify this Court that he has done so. If Pla intiff notifies the Court within 30 days that he has withdrawn the appeal, and the Court regains jurisdiction to act in this matter, the Court will reopen this case and address his IFP Application. Alternatively, because this action was dismissed without prejudice and before Plaintiff was charged any filing fees, Plaintiff can simply commence a new action asserting the same claims. For Plaintiff's convenience, a prisoner civil rights complaint form is attached to this order, and the Clerk of Court is directed to include an IFP Application and Prisoner Authorization with this order. SO ORDERED. (Signed by Judge Colleen McMahon on 1/7/21) (rdz) Transmission to Docket Assistant Clerk for processing.

Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CYRIL SHEPPARD,
Plaintiff,
20-CV-9405 (CM)

-against-

ORDER

NEW YORK CITY DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
COLLEEN McMAHON, Chief United States District Judge:

By order dated December 15, 2020, the Court dismissed this action for Plaintiff’s failure
to either pay the filing fees or submit an application to proceed in forma pauperis (“IFP) and
Prisoner Authorization. (ECF No. 5.) Plaintiff was not charged a filing fee for this action, and the
action was dismissed without prejudice to Plaintiff’s bringing his claims in a new complaint.
On December 19, 2020, Plaintiff gave his IFP Application and Prisoner Authorization to
prison officials for mailing, and the Court received those documents on December 22, 2020.
(ECF Nos. 7-8.) Plaintiff also submitted a notice of appeal, in which he explains that his delay in
returning the IFP Application and Prisoner Authorization was due to problems at the facility
where he is incarcerated. 1 (ECF No. 9.)
DISCUSSION
“The filing of a notice of appeal is an event of jurisdictional significance – it confers
jurisdiction on the court of appeals and divests the district court of its control over those aspects
of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58

1

late.

Plaintiff also requested an extension of time to appeal, even though his appeal was not

Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 2 of 9

(1982). 2 Because Plaintiff’s appeal divests this Court of jurisdiction over the action, the Court
cannot reopen this matter while Plaintiff’s appeal of the order of dismissal is pending, even
though Plaintiff has now submitted his IFP Application and Prisoner Authorization.
Accordingly, should Plaintiff wish to proceed with this action, he must withdraw his
appeal in the Second Circuit and notify this Court within 30 days that he has done so. If the
Court receives such notification within 30 days and regains jurisdiction to act in this matter, the
Court will reopen this case based on Plaintiff’s filing of the IFP Application and Prisoner
Authorization. 3
Alternatively, because this action was dismissed without prejudice, nothing in this action
prevents Plaintiff from filing a new complaint, together with an IFP Application and Prisoner
Authorization, asserting the claims that he intended to raise in this matter. The Court therefore
directs the Clerk of Court to send Plaintiff a prisoner civil rights complaint form with this order.
If Plaintiff chooses to bring a new action instead of pursuing an appeal, his complaint will be
assigned a new docket number, and he should not include this docket number on the new
complaint.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, noting service on
the docket. The Court grants Plaintiff 30 days from the date of this order to withdraw his appeal
and notify this Court that he has done so. If Plaintiff notifies the Court within 30 days that he has

2

If a party (1) files a motion under Federal Rule of Civil Procedure 60(b) within 28 days
after judgment is entered, see Fed. R. App. P. 4(a)(4)(A)(vi), and (2) files a notice of appeal
before the district court disposes of that motion, see Fed. R. App. P. 4(a)(4)(B)(i), the notice of
appeal does not become “effective” until after the district court rules on the motion. Here,
however, Plaintiff did not submit a motion for reconsideration.
3

Once the Court reopens this matter, the complaint will be screened under 28 U.S.C.
§ 1915(e)(2)(B).
2

Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 3 of 9

withdrawn the appeal, and the Court regains jurisdiction to act in this matter, the Court will
reopen this case and address his IFP Application.
Alternatively, because this action was dismissed without prejudice and before Plaintiff
was charged any filing fees, Plaintiff can simply commence a new action asserting the same
claims. For Plaintiff’s convenience, a prisoner civil rights complaint form is attached to this
order, and the Clerk of Court is directed to include an IFP Application and Prisoner Authorization
with this order.
SO ORDERED.
Dated:

January 7, 2021
New York, New York
COLLEEN McMAHON
Chief United States District Judge

3

Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 4 of 9

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

-against-

COMPLAINT
(Prisoner)
Do you want a jury trial?
☐ Yes
☐ No

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section IV.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 11/17/17

Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 5 of 9

I.

LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a
“Bivens” action (against federal defendants).

☐ Violation of my federal constitutional rights
☐ Other:
II.

PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name

Middle Initial

Last Name

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address

County, City

III.

State

Zip Code

PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

☐
☐
☐
☐
☐

Pretrial detainee
Civilly committed detainee
Immigration detainee
Convicted and sentenced prisoner
Other:

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Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 6 of 9

IV.

DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
Defendant 1:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 3:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 4:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code
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Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 7 of 9

V.

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:
FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

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Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 8 of 9

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI.

RELIEF

State briefly what money damages or other relief you want the court to order.

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Case 1:20-cv-09405-CM Document 10 Filed 01/07/21 Page 9 of 9

VII.

PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.
I understand that if I file three or more cases while I am a prisoner that are dismissed as
frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk's Office may result in the dismissal of my
case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated
First Name

Plaintiff’s Signature
Middle Initial

Last Name

Prison Address
County, City

State

Zip Code

Date on which I am delivering this complaint to prison authorities for mailing:

Page 6