Johnson v. Bragg
- Laura Swain
- 1:22-cv-08651
- U.S. District Court · Southern District of New York
- 5
Johnson v. Dearth: Judge Swain denied Johnson’s late appeal-extension request and denied her requests to appeal without paying fees as moot.
Jinja “Kyng Pariah” Johnson, whose request for more time to appeal was denied as untimely and whose requests to appeal without paying fees were denied as moot. The order also affects any appeal from this order by certifying that it would not be taken in good faith.
What happened
In Jinja “Kyng Pariah” Johnson v. Melanie Dearth, Johnson asked for more time to appeal the earlier dismissal of her case. The court had mailed the dismissal papers to an address that was no longer current after Johnson’s transfer to state custody, and later mailed them to her new facility.
The court received Johnson’s notice of appeal and related requests on June 14, 2023. It ruled that the notice and the request for more time were late because someone outside the prison system delivered them to the appeals court after the applicable deadlines. The court also noted that it had already decided that an appeal of the earlier dismissal would not be taken in good faith.
Judge Laura Taylor Swain denied Johnson’s request for an extension of time as untimely. She also denied Johnson’s request to proceed without paying the appeal filing fee and her application to appeal without paying that fee as moot. The court certified that an appeal from this order would not be taken in good faith.
The detailed version
- Johnson v. Bragg · No. 1:22-cv-08651
- Laura Swain
- Aug. 8, 2023
Background
The court had dismissed this pro se action by an order and judgment dated March 6, 2023, and entered March 7, 2023. The Clerk mailed the dismissal papers and appeal materials to Johnson at the Rose M. Singer Center on Rikers Island, which was then her address of record. According to the opinion, Johnson was transferred into the custody of the New York State Department of Corrections and Community Supervision on March 15, 2023, without the court’s knowledge. The mailed documents were returned on May 22, 2023, and the Clerk mailed them again to Johnson at Albion Correctional Facility.
The court received Johnson’s notice of appeal, motion for an extension of time to appeal under Federal Rule of Appellate Procedure 4(a)(5), motion to proceed without paying fees on appeal, and application to appeal without paying fees on June 14, 2023. The opinion states that it appeared someone other than Johnson, who was not incarcerated, delivered the filings to the Second Circuit’s night depository box, and that the Second Circuit forwarded them to the district court.
Timeliness of the appeal and extension request
Because Johnson’s second amended complaint named at least one federal official—Senator Chuck Schumer—the court applied the rule requiring a 60-day appeal period for the relevant type of federal-official action. The court calculated that Johnson’s notice of appeal was due by May 8, 2023, and that a motion for an extension under Rule 4(a)(5) was due by June 7, 2023.
The court concluded that both the notice of appeal and the extension motion were not received until June 14, 2023. It relied on the rule that a filing mistakenly submitted to the court of appeals is treated as filed with the district court on the date it was submitted to the court of appeals. It also relied on precedent stating that the prison-mailbox rule does not apply when a pro se incarcerated person delivers a notice of appeal to someone outside the prison system for forwarding to the court. The court therefore denied the Rule 4(a)(5) motion as untimely.
Requests to proceed without paying appeal fees
The court had already certified in its March 6, 2023, order and judgment that any appeal from that decision would not be taken in good faith and had denied fee-free appeal status for that appeal. Based on that earlier certification, the court denied Johnson’s motion for leave to proceed without paying fees on appeal and her application to appeal without paying fees as moot.
Disposition
Judge Laura Taylor Swain denied Johnson’s motion for an extension of time to file a notice of appeal under Rule 4(a)(5) as untimely. The court also denied Johnson’s motion for leave to proceed without paying fees on appeal and her application to appeal without paying fees as moot. The court certified under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, so fee-free appeal status was denied for purposes of an appeal.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.