Simmons v. City of Mount Vernon
- Vincent Briccetti
- 7:19-cv-10388
- U.S. District Court · Southern District of New York
- 2
In Simmons v. City of Mount Vernon, Judge Briccetti gave Simmons a final deadline to oppose dismissal and denied fee-free appeal status.
Terri Simmons, the defendants, and the pending motion to dismiss; the order set Simmons’s final response deadline and denied fee-free appeal status.
What happened
In Simmons v. City of Mount Vernon, Terri Simmons was opposing the defendants’ request to dismiss her second amended complaint. She was representing herself and had already received several extensions to respond.
Simmons asked for another extension, citing her mother’s death, her son’s legal and medical problems, and other circumstances. The court also noted that all defendants had been served, contrary to one of Simmons’s statements.
The court extended Simmons’s deadline to October 27, 2022, and said no further extensions would be granted. Judge Vincent L. Briccetti also ruled that an appeal from this order would not be taken in good faith and denied permission to appeal without paying fees.
The detailed version
- Simmons v. City of Mount Vernon · No. 7:19-cv-10388
- Vincent Briccetti
- Sept. 27, 2022
Background
The defendants had filed a motion to dismiss Terri Simmons’s second amended complaint. Simmons was proceeding without a lawyer and with permission to proceed without paying court fees. Her opposition was initially due June 3, 2022.
The court first extended the deadline to June 27. After Simmons requested more time because her mother had died, the court granted an additional extension. Simmons later moved for appointment of volunteer counsel and, alternatively, more time to seek legal assistance. The court denied the request for counsel without prejudice and extended the opposition deadline to August 22, 2022.
Latest Request for More Time
After the August 22 deadline passed, Simmons requested another extension. She cited her mother’s death, her disabled son’s continuing involvement with the criminal court system, her efforts to seek guardianship over him, his August 14, 2022 car accident and hospitalization, and her assertion that not all defendants had been served.
The court stated that defense counsel had accepted service on behalf of the newly named defendants by letter dated May 19, 2022. The court therefore found that all defendants had been served with the second amended complaint.
Ruling
The court extended Simmons’s deadline to oppose the motion to dismiss to October 27, 2022. It stated that this was the final extension, that the motion would be treated as fully submitted and unopposed if Simmons did not respond by that date, and that no further extensions would be granted.
Judge Vincent L. Briccetti also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith. The court therefore denied permission to appeal without paying fees. This order did not decide the defendants’ motion to dismiss on its merits.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.