Pereira v. New York City Department of Education et al

Filing 17

ORDER denying 15 Motion for Extension of Time to File. The Court denies Plaintiff's motion for an extension of time to file a notice of appeal, brought under Rule 4(a)(5) of the Federal Rules of Appellate Procedure (ECF 15), as unnecessar y, because his notice of appeal (ECF 16) is timely. The Court also denies Plaintiff's motion for leave to proceed IFP on appeal and application to appeal IFP. (Id.) The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Laura Taylor Swain on 11/21/24) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARAO ABEL PEREIRA,
Plaintiff,
23-CV-10396 (LTS)

-against-

ORDER

NEW YORK CITY HEALTH AND
HOSPITALS COPORATION
Defendant.
LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff brings this action pro se. By order dated September 9, 2024, the Court dismissed
this action, but granted Plaintiff 30 days’ leave to replead his claims in a third amended
complaint, as specified by that order. (ECF 12.) Plaintiff did not file a third amended complaint;
in a judgment dated and entered on November 7, 2024, the Court dismissed this action. (ECF
14.) On November 20, 2024, the court received from Plaintiff a notice of appeal, a motion for an
extension of time to file a notice of appeal brought under Rule 4(a)(5) of the Federal Rules of
Appellate Procedure (“Rule 4(a)(5)”), a motion for leave to proceed in forma pauperis (“IFP”)
on appeal, and an application to appeal IFP. (ECF 15 & 16.)
For the following reasons, the Court denies Plaintiff’s Rule 4(a)(5) motion as
unnecessary, and denies his motion for leave to proceed IFP on appeal and his application to
appeal IFP.
DISCUSSION
A.

Rule 4(a)(5) motion
Under Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a litigant must file a

notice of appeal within 30 days of the entry date of the order or judgment being appealed. See
Fed. R. App. P. 4(a)(1)(A).

The abovementioned judgment was entered on November 7, 2024. Plaintiff, therefore,
has until 30 days later, or until December 9, 2024, to file his notice of appeal. His notice of
appeal was filed on November 20, 2024, and is, accordingly, timely. The Court therefore denies
Plaintiff’s Rule 4(a)(5) motion as unnecessary.
B.

IFP on appeal
Under 28 U.S.C. § 1915(a)(3), an “appeal may not be taken [IFP] if the trial court

certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). In its September 9,
2024 order and November 7, 2024 judgment, the Court certified, under Section 1915(a)(3), that
any appeal from that order and judgment would not be taken in good faith (ECF 12 & 14),
denying IFP for the purpose of an appeal, see § 1915(a)(3). Thus, because the Court has already
decided that any appeal from the Court’s order and judgment would not be taken in good faith,
the Court denies Plaintiff’s motion for leave to proceed IFP on appeal and his application to
appeal IFP.
CONCLUSION
The Court denies Plaintiff’s motion for an extension of time to file a notice of appeal,
brought under Rule 4(a)(5) of the Federal Rules of Appellate Procedure (ECF 15), as
unnecessary, because his notice of appeal (ECF 16) is timely. The Court also denies Plaintiff’s
motion for leave to proceed IFP on appeal and application to appeal IFP. (Id.)

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The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would
not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

November 21, 2024
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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