Kelsey v. Sherman
- Vincent Briccetti
- 7:22-cv-01934
- U.S. District Court · Southern District of New York
- 2
Kelsey v. Sherman: Judge Briccetti denied reconsideration and a second amendment after dismissing unserved defendants.
Michael N. Kelsey and the claims he sought to pursue against New York State DOCCS, Attorney General Letitia James, and the New York State Board of Parole; the order also addressed Kelsey’s requested second amendment and appeal-fee status.
What happened
In Kelsey v. Sherman, the court had dismissed without prejudice Michael N. Kelsey’s claims against New York State DOCCS, Attorney General Letitia James, and the New York State Board of Parole because he did not file proof that those defendants had been served by the deadline. The court noted that Kelsey, a former attorney, had multiple opportunities to complete service.
The court treated Kelsey’s December 28 letter as asking it to reconsider that dismissal and to allow a second amended complaint. It denied both requests and declined to reinstate the claims against those defendants. The court also said that an appellate decision concerning Kelsey’s sex-offender designation did not justify another amendment at that stage.
Judge Vincent L. Briccetti also noted that the St. Lawrence County District Attorney had filed a motion to dismiss the amended complaint, with Kelsey’s opposition due January 18, 2024. Judge Briccetti certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.
The detailed version
- Kelsey v. Sherman · No. 7:22-cv-01934
- Vincent Briccetti
- Jan. 10, 2024
Background
In a December 22, 2023 order, the court dismissed, without prejudice, Michael N. Kelsey’s claims against New York State DOCCS, Attorney General Letitia James, and the New York State Board of Parole. The court stated that Kelsey had not filed waivers or proofs of service for those defendants on the docket within the deadline under Federal Rule of Civil Procedure 4(m). The court also stated that Kelsey, a former attorney, had received multiple opportunities over several months to comply with the service rule.
Kelsey sent the court a December 28, 2023 letter describing his attempts to serve the defendants and asking the court to accept proof of service. He also stated that the Appellate Division, Third Department had vacated his “SORA assessment” and remanded it for further proceedings. Kelsey said he had sent the appellate decision to the court and requested permission to amend his pleading a second time, but the docket did not show that the court had received such a filing.
Requests and Rulings
The court construed Kelsey’s letter as requesting reconsideration of the December 22 dismissal and leave to file a second amended complaint. The court denied the request for reconsideration, relying substantially on the reasons stated in an Assistant Attorney General’s January 8, 2024 letter. The court therefore did not reinstate Kelsey’s claims against New York State DOCCS, Attorney General Letitia James, or the New York State Board of Parole.
The court also denied Kelsey’s request for leave to file a second amended complaint. It stated that it could discern no reason why the appellate decision concerning Kelsey’s sex-offender designation warranted another amendment at that stage.
Other Matters
The St. Lawrence County District Attorney had filed a motion to dismiss the amended complaint on January 4, 2024. The court reminded Kelsey that his opposition was due January 18, 2024. The opinion does not decide that motion.
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith. It therefore denied permission to appeal without paying the filing fees. The order also directed the court’s chambers to mail Kelsey a copy at the address on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.