Kelsey v. Sherman
- Vincent Briccetti
- 7:22-cv-01934
- U.S. District Court · Southern District of New York
- 2
In Kelsey v. Sherman, Judge Briccetti extended Kelsey’s service deadline to November 17, 2023, and stayed defendants’ response deadline.
Michael N. Kelsey and the newly named defendants—the New York State Board of Parole, New York State Department of Corrections and Community Supervision Poughkeepsie Bureau, St. Lawrence County District Attorney, and Attorney General Letitia James—were directly affected by the extended service deadline; all defendants were affected by the stay of their response deadline.
What happened
In Kelsey v. Sherman, Michael N. Kelsey filed an amended complaint against Christopher Sherman, Kathy Hochul, and several newly named defendants. The court had previously granted Sherman and Hochul’s motion to dismiss but allowed Kelsey to pursue limited First Amendment and Fourteenth Amendment procedural due process claims.
The court said the newly named defendants had not yet been served. Because Kelsey was representing himself, the court extended his deadline to serve them and file proof of service from October 17 to November 17, 2023. The court warned that it would not grant another extension and could dismiss the claims against those defendants if he did not comply.
Judge Vincent L. Briccetti also stayed the deadline for all defendants to answer or otherwise respond to the amended complaint. He denied Kelsey permission to proceed without paying filing fees for an appeal, certifying that an appeal would not be taken in good faith.
The detailed version
- Kelsey v. Sherman · No. 7:22-cv-01934
- Vincent Briccetti
- Oct. 18, 2023
Background
Michael N. Kelsey, who was proceeding without a lawyer, filed an amended complaint naming Christopher Sherman, Kathy Hochul, the New York State Board of Parole, the New York State Department of Corrections and Community Supervision Poughkeepsie Bureau, the St. Lawrence County District Attorney, and Attorney General Letitia James as defendants. In an earlier order, the court granted Sherman and Hochul’s motion to dismiss Kelsey’s complaint but gave Kelsey permission to file an amended complaint pursuing only First Amendment and Fourteenth Amendment procedural due process claims.
Kelsey asked whether the court would arrange service because he had been granted poor-person status. The court explained that he was barred from proceeding without paying filing fees and therefore could not rely on the United States Marshals Service to serve the newly named defendants. The clerk issued summonses and mailed them to Kelsey on July 19, 2023. The docket did not show that the newly named defendants had been served by the original October 17 deadline.
Order
Considering Kelsey’s status as a self-represented litigant, the court extended his deadline to serve the summonses and amended complaint on the newly named defendants to November 17, 2023. The court stated that it would not grant any further extensions. Kelsey was required to file proof of service on the electronic docket by that date. If he failed to do so, the court stated that it would dismiss the claims against the newly named defendants under Rules 4 and 41 of the Federal Rules of Civil Procedure.
The court stayed the time for all defendants to answer, file a motion, or otherwise respond to the amended complaint until a further court order. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied permission to proceed without paying filing fees for purposes of an appeal. This order did not itself dismiss the claims against the newly named defendants; it extended the service deadline and warned of a possible dismissal for failure to prosecute.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.