Colon v. Gunsett
- Vincent Briccetti
- 7:22-cv-00635
- U.S. District Court · Southern District of New York
- 4
In Colon v. Gutwein, Judge Briccetti set a deadline for opposition to defendants’ dismissal motion and denied fee-free appeal status.
Jose Rivera Colon, who was given a final stated deadline to oppose the dismissal motion and was denied permission to appeal this order without paying filing fees; the defendants, whose dismissal motion remained pending and whose reply deadline remained February 1, 2024.
What happened
In Jose Rivera Colon v. Gutwein, defendants had asked the court to dismiss Colon’s amended complaint. Colon was representing himself and had not responded by the original deadline.
The court extended Colon’s deadline to January 18, 2024, but said it would not extend it again based on the available information. If Colon did not respond by then, the court would treat the motion as unopposed and decide it later.
Judge Vincent L. Briccetti also ruled that any appeal from this order would not be taken in good faith and denied Colon permission to appeal without paying filing fees. The order did not decide the defendants’ dismissal motion.
The detailed version
- Colon v. Gunsett · No. 7:22-cv-00635
- Vincent Briccetti
- Jan. 2, 2024
Background
Defendants filed a motion to dismiss the amended complaint on September 29, 2023. The court set November 30, 2023, as the deadline for Jose Rivera Colon’s opposition. As of December 19, 2023, Colon had not responded. The court then extended the deadline to January 18, 2024, and mailed that order to Upstate Correctional Facility, the address listed on the docket.
The court received a December 28, 2023, letter from facility personnel stating that Colon was temporarily absent and might not return soon. The letter said the facility would hold his legal mail until he returned. The court noted that a search of the New York State Department of Corrections and Community Supervision inmate-lookup website indicated Colon was currently in custody at Upstate Correctional Facility. The defendants’ motion papers had been mailed to Colon several months earlier.
Order
The court declined to extend Colon’s opposition deadline further. It ordered that, if Colon did not oppose the motion by January 18, 2024, the court would treat the motion as fully submitted and unopposed and decide it later. Defendants’ reply, if any, remained due February 1, 2024. The court also instructed defendants to promptly notify it if they learned that Colon had not received the motion papers or had been transferred or relocated. Colon was reminded that he must notify the court in writing of address changes.
Judge Vincent L. Briccetti certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. The court therefore denied Colon permission to appeal without paying filing fees. This order did not grant or deny the defendants’ motion to dismiss.
Effect
The order primarily set a deadline and established what would happen if Colon did not respond. It also denied fee-free appeal status for this order. The underlying claims and the pending motion to dismiss were left for a later decision.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.