Acevedo v. Capra

Background

On June 23, 2021, the court entered a decision and order dismissing the petition under 28 U.S.C. § 2254, a federal statute used to challenge certain state-court custody, "without prejudice to repleading the allegations under the correct statute." The court later explained that it intended to dismiss the case without prejudice so the petitioners could choose either to appeal immediately or bring a new action under the statute the court believed applied.

The court noted that a new action under Section 1983 and the Prison Litigation Reform Act would involve different obstacles, including different exhaustion requirements. It also stated that, in the Southern District of New York, each prisoner plaintiff must file a separate action and pay a separate filing fee for conditions-of-confinement cases.

Petitioners' Request

On June 25, 2021, the court received the petitioners' letter asking it to certify the dismissal for an interlocutory appeal under 28 U.S.C. § 1292(b). The court said its earlier language could be read as dismissing the petition with permission to amend, even though the earlier order did not use the word "amend" or expressly grant leave to amend. Such an order would not be final.

Ruling

Judge McMahon amended the June 23 decision and order by adding this conclusion: the clerk was directed to dismiss the petition without prejudice and close the file. The court stated that this type of dismissal is a final decision under 28 U.S.C. § 1291, from which an immediate appeal could be taken. The opinion does not decide the underlying allegations on their merits.