Javier v. Russo
- Vincent Briccetti
- 7:21-cv-07097
- U.S. District Court · Southern District of New York
- 2
In Al Javier v. Anthony Russo, Judge Swain granted reconsideration, vacated the dismissal, and reopened the case for screening.
Al Javier, Anthony Russo, the other defendants, and the court proceedings were affected: the dismissal and judgment were vacated, and the case was reopened for screening.
What happened
Al Javier, who was incarcerated and representing himself, sued Anthony Russo and others. The court had given him 60 days to file an amended complaint, then dismissed the case after it did not receive one within that period.
Javier’s amended complaint was signed and given to prison officials for mailing on November 12, 2021, although the court received it on December 2. The court explained that a prisoner’s filing is generally treated as filed when given to prison officials for mailing.
Judge Laura Taylor Swain granted Javier’s motion for reconsideration, directed the Clerk to vacate the dismissal and judgment, and ordered the case reopened. The court said it would screen the amended complaint, and denied permission to appeal without paying fees.
The detailed version
- Javier v. Russo · No. 7:21-cv-07097
- Vincent Briccetti
- Jan. 25, 2022
Background
Al Javier, who was incarcerated at Green Haven Correctional Facility, filed the action without a lawyer. On September 17, 2021, the court directed him to amend his complaint to correct deficiencies and gave him 60 days to do so. Because the court had not received an amended complaint within that period, it entered an order and judgment dismissing the action on November 23, 2021.
The court later received Javier’s amended complaint on December 2, 2021. The complaint stated that Javier signed it and gave it to prison officials for mailing on November 12, 2021. Under the prison mailbox rule, a prisoner’s pleading is treated as filed when the prisoner gives it to prison officials for mailing. Javier also sent a letter about the dismissal, which the court treated as a motion for relief from the order and judgment under Rule 60(b) of the Federal Rules of Civil Procedure.
Ruling
Because the amended complaint appeared to have been timely filed under the prison mailbox rule, the court granted the motion for reconsideration. It directed the Clerk of Court to vacate the dismissal order and judgment and reopen the matter. The court stated that, after reopening, it would screen the amended complaint under 28 U.S.C. § 1915A; the opinion does not decide whether the complaint states a valid claim.
Judge Laura Taylor Swain also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk was directed to mail Javier a copy of the order and record service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.