Javier v. Russo
- Vincent Briccetti
- 7:21-cv-07097
- U.S. District Court · Southern District of New York
- 1
In Javier v. Russo, Judge Briccetti deemed defendants’ dismissal motion unopposed and denied fee-free appeal status.
Al Javier and the defendants who moved to dismiss or joined the motion. The dismissal motion remained pending for a later decision, while Javier was denied permission to appeal this order without prepaying court fees.
What happened
Javier v. Russo concerns a lawsuit by Al Javier, who is representing himself and alleges constitutional violations under a federal civil-rights law. Several defendants moved to dismiss his amended complaint.
The court extended Javier’s deadline to respond twice and warned that failing to respond by December 12, 2022, would allow the court to treat the dismissal motion as fully submitted and unopposed. Javier did not respond.
Judge Vincent L. Briccetti therefore deemed the motion fully submitted and unopposed, but stated that he would decide it later. The court also denied Javier permission to appeal without paying fees, finding that any appeal from this order would not be taken in good faith.
The detailed version
- Javier v. Russo · No. 7:21-cv-07097
- Vincent Briccetti
- Dec. 20, 2022
Background
Al Javier, who is proceeding without a lawyer and without prepaying court fees, brought claims under 42 U.S.C. § 1983 alleging violations of his constitutional rights. Defendants Rosinsky, Watkins, Kopp, Rodriguez, and Annucci moved to dismiss the amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants Russo and Morrissey later joined that motion.
The defendants served Javier with the motion papers by regular mail. His original deadline to oppose the motion was October 6, 2022. Because he had not filed an opposition, the court extended the deadline to November 28, 2022. After Russo and Morrissey joined the motion, the court extended the deadline again, to December 12, 2022, and warned Javier that failing to respond would cause the court to deem the motion fully submitted and unopposed.
What the Court Did
Javier did not respond by the extended deadline. The court therefore deemed the defendants’ motion to dismiss fully submitted and unopposed. The court did not decide the motion to dismiss in this order; it stated that the motion would be decided later.
The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. As a result, it denied Javier permission to appeal without prepaying court fees.
Effect of the Order
This order addressed the status of the pending dismissal motion and Javier’s ability to appeal without prepaying fees. It did not rule on whether Javier’s constitutional claims were legally sufficient or otherwise resolve the defendants’ motion to dismiss.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.