Burns v. Long
- Laura Swain
- 1:23-cv-09399
- U.S. District Court · Southern District of New York
- 5
Burns v. Long: Judge Swain extended Burns’s appeal deadline but denied his request to proceed without fees because the appeal was not in good faith.
George Burns’s appeal notice will be treated as timely filed, but he was denied permission to proceed without paying filing fees for the appeal.
What happened
In Burns v. Long, George Burns asked for more time to appeal an earlier order that dismissed his case without prejudice under the Prison Litigation Reform Act’s three-strikes rule. He also asked to appeal without paying fees.
The court found that Burns’s transfer from the Westchester County Jail to Mid-Hudson Forensic Psychiatric Center provided good cause for missing the original deadline. It granted his request for more time and directed the clerk to treat his notice of appeal as timely filed.
Judge Laura Taylor Swain denied Burns’s request to proceed without paying fees on appeal as moot because the court had already certified that an appeal from the earlier order would not be taken in good faith. The court also made the same certification for an appeal from this order, so fee-waiver status was denied for that appeal.
The detailed version
- Burns v. Long · No. 1:23-cv-09399
- Laura Swain
- Jan. 23, 2024
Background
George Burns filed this case without a lawyer. In an order and judgment dated November 17, 2023, the court dismissed the action without prejudice because Burns was barred by the Prison Litigation Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g), from bringing a federal civil action without paying filing fees unless he was in immediate danger of serious physical injury.
Burns later filed a notice of appeal and asked to proceed on appeal without paying filing fees. The documents were dated December 21, 2023, and appeared to have been mailed from Mid-Hudson Forensic Psychiatric Center, after Burns had been transferred there from the Westchester County Jail. He also filed a motion under Federal Rule of Appellate Procedure 4(a)(5) asking for an extension of time to file his notice of appeal.
Extension of Time
A notice of appeal generally must be filed within 30 days after the entry of the order or judgment. The court determined that the deadline for Burns’s appeal was December 18, 2023. Because his notice appeared to have been mailed on or after December 21, 2023, the court found it untimely.
Rule 4(a)(5) permits an extension if the motion is timely and the person seeking it shows excusable neglect or good cause. The court found that Burns’s transfer from the jail to Mid-Hudson and his hospitalization there provided good cause. The court therefore granted Burns’s Rule 4(a)(5) motion and directed the clerk to treat his notice of appeal as timely filed.
Request to Proceed Without Paying Filing Fees
The court denied Burns’s motion for leave to proceed without paying filing fees on appeal as moot. It explained that its November 17, 2023 order and judgment had already certified under 28 U.S.C. § 1915(a)(3) that an appeal from that decision would not be taken in good faith.
The court also certified under Section 1915(a)(3) that an appeal from this January 23, 2024 order would not be taken in good faith. It therefore denied fee-waiver status for purposes of an appeal from this order.
Disposition
The court granted the motion for an extension of time, treated Burns’s notice of appeal as timely filed, and denied the motion for leave to proceed without paying filing fees on appeal as moot. The court also certified that an appeal from this order would not be taken in good faith.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.