Burns v. City of Yonkers

Background

George Burns, representing himself, previously brought an action against the City of Yonkers and other defendants. By an order and judgment entered on November 13, 2023, the court dismissed that action without prejudice under the Prison Litigation Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g).

Burns then moved under Federal Rule of Appellate Procedure 4(a)(5) for an extension of time to file a notice of appeal. He stated that he had been transferred from Westchester County Jail to Mid-Hudson Forensic Psychiatric Center and had not received his legal documents right away.

Court’s Analysis

A notice of appeal generally must be filed within 30 days after the judgment is entered. A request for an extension under Rule 4(a)(5) must be filed within 30 days after that appeal period expires and must show either excusable neglect or good cause.

The court concluded that Burns’s motion was timely. It relied on the date he signed the motion, the date on the mailing envelope, and the date the Court of Appeals received it. The court also found good cause because Burns’s transfer appeared to have separated him from his legal materials and delayed his ability to file a notice of appeal.

Ruling

Judge Laura Taylor Swain granted Burns’s Rule 4(a)(5) motion for an extension of time to file a notice of appeal. The court directed him to file the attached notice of appeal within 14 days of the order’s date.

The court separately certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. It therefore denied permission to proceed without paying filing fees for purposes of an appeal from this order. This opinion addressed the appeal deadline and appeal-related filing-fee issue; it did not reconsider the earlier dismissal of Burns’s underlying action.