Kevensky v. New City Rockland County

Background

Lubin Kevensky filed the underlying complaint on March 4, 2019, while detained at the Robert N. Davoren Center on Rikers Island. He did not submit the filing fee or a request to proceed without prepaying fees. He filed an application to proceed without prepaying fees two days later.

Because Kevensky qualified as a prisoner under 28 U.S.C. § 1915(h) when he filed the action, the court ordered him to pay the filing fees or submit a prisoner authorization form. He did not comply. On April 18, 2019, the court dismissed the action for failure to file the authorization form or pay the fees. The opinion states that the dismissal was without prejudice, meaning the dismissal order did not prevent Kevensky from filing the complaint again with the required application and authorization.

Request to reopen the appeal period

Kevensky filed a notice of appeal and a motion seeking more time to appeal. He said that he had been moved while incarcerated and that officials had failed to provide his mail. The documents were dated June 26, 2019, and received by the court on July 31, 2019.

The usual rule for a civil appeal requires a notice of appeal within 30 days after entry of the judgment or order. The court explained that it could grant a limited extension for excusable neglect or good cause only if the motion was filed within the time allowed by that rule. Because Kevensky’s motion was not filed within 60 days after entry of the judgment, the court concluded that it lacked authority to grant an extension under that provision.

The court instead treated the request as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6). That rule permits reopening for 14 days if the appellant did not receive notice of the judgment within 21 days, filed the request within the rule’s deadline, and reopening would not prejudice another party. The court stated that it appeared all three conditions were met: Kevensky asserted that he did not receive the relevant mail, the motion and notice were filed within 180 days of the judgment, and reopening did not appear to prejudice either defendant.

Ruling

Judge Colleen McMahon granted Kevensky’s motion to reopen the time to appeal, as construed from his motion for an extension. The Clerk was directed to process his notice of appeal under the Clerk’s procedures and mail him a copy of the order.

The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. It therefore denied Kevensky’s request to proceed without prepaying fees for the appeal. This order addressed the timing and processing of the appeal; it did not decide the underlying claims in the complaint.