Barnes v. Fedele et al

Filing 209

DECISION AND ORDER Plaintiff's motion for relief under Fed. R. Civ. P. 60(b) 208 is denied. Signed by Hon. David G. Larimer on 1/10/2019. Copy of this Decision and Order sent by First Class Mail to plaintiff Arrello Barnes on 1/10/2019 to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
ARRELLO BARNES,
DECISION AND ORDER
Plaintiff,
07-CV-6197L
v.

FEDELE, et al.,
Defendants.
___________________________________________

Plaintiff Arrello Barnes, proceeding pro se, brought this action under 42 U.S.C. § 1983
and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.
Plaintiff sued a number of officials and employees of the New York State Department of
Correctional Services (“DOCS”), asserting various violations of his religious rights under the
First Amendment to the United States Constitution. In relevant part, plaintiff’s claims arose from
defendants’ denial to plaintiff of a “Tsalot-Kob,” which is a head covering worn by members of
certain faiths for religious purposes.
On October 2, 2018, the Court issued a Decision and Order which granted defendants’
motion for summary judgment, denied plaintiff’s motion for summary judgment, and dismissed
the complaint. 337 F.Supp.3d 227. The decision was based on the Court’s conclusion that the
defendants were entitled to qualified immunity.
On January 2, 2019, plaintiff filed a motion under Rule 60(b) of the Federal Rules of
Civil Procedure, seeking relief from that order. Prior to filing his Rule 60(b) motion, however,

plaintiff on October 24, 2018 filed a notice of appeal to the Court of Appeals for the Second
Circuit. (Dkt. #206.) That appeal is now pending, as is plaintiff’s Rule 60(b) motion.
In general, “[t]he filing of a notice of appeal ... confers jurisdiction on the court of appeals
and divests the district court over those aspects of the case involved in the appeal.” Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). There are some nuances to that rule,
however.
In particular, “a district court may entertain and deny a Rule 60(b) motion during the
pendency of an appeal, see Fed. R. Civ. P. 62.1(a), but ‘may grant a [R]ule 60(b) motion after an
appeal is taken only if the moving party obtains permission from the circuit court.’” Witek v. City
of New York, No. 12-CV-981, 2015 WL 9460132, at *4 (E.D.N.Y. Dec. 23, 2015) (quoting
Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)). See Selletti v. Carey, 173 F.3d
104, 109 (2d Cir. 1999) (“The district court properly assumed that it had jurisdiction to deny the
motion [brought under Rules 59(e) and 60(b)] during the pendency of an appeal”); see also
Criminal Productions, Inc. v. Jenkins, No. 16-CV-2704, 2018 WL 3997257, at *2 (denying
motion to reconsider, which was filed after filing of notice of appeal); Marcel v. United States,
No. 12-CV-4404, 2012 WL 6720771, at *2 (E.D.N.Y. Dec. 27, 2012) (same).
Having reviewed plaintiff’s motion, I find that it should be denied, since this Court’s
decision is on appeal. As explained above, the pendency of plaintiff’s appeal poses no obstacle
to this Court’s denial of the motion.
Even were the appeal not pending, I would deny plaintiff’s motion. To the extent
plaintiff’s motion relies on a district court case from another district, Thomas v. Waugh, No.

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13-cv-321, 2018 WL 1508563 (N.D.N.Y. Mar. 27, 2018), that case is not controlling and is
based on different facts and issues.

CONCLUSION
Plaintiff’s motion for relief under Fed. R. Civ. P. 60(b) (Dkt. #208) is DENIED.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 10, 2019.

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