Pierce v. Woldenberg ( 2012 )

11-4481-cv
Pierce v. Woldenberg
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28th day of September, two thousand twelve.
PRESENT: CHESTER J. STRAUB,
ROBERT D. SACK,
DENNY CHIN,
Circuit Judges.
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SAMUEL PIERCE,
Plaintiff-Appellant,
-v.- 11-4481-cv
RONA WOLDENBERG, M.D.,
Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT: SAMUEL PIERCE, pro se,
Philadelphia, Pennsylvania.
FOR DEFENDANT-APPELLEE: HOWARD Z. ROBBINS (Brian J.
Gershengorn, on the brief),
Proskauer Rose LLP, New York, New
York.
Appeal from an order of the United States District
Court for the Eastern District of New York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal is DISMISSED.
Plaintiff-appellant Samuel Pierce, pro se, appeals from
the district court's October 6, 2011, order, denying his motion
for a preliminary injunction against defendant-appellee Rona
Woldenberg, Assistant Dean for Admissions at Hofstra North Shore-
LIJ School of Medicine at Hofstra University ("Hofstra"). We
assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues presented for
review.
In 2010, Pierce applied for admission to several
medical schools, including Hofstra. Each of his applications was
denied. On August 4, 2011, Pierce sued Woldenberg in the United
States District Court for the Central District of California. On
August 19, 2011, Pierce moved for a preliminary injunction
ordering his admission into Hofstra's medical program. On August
29, 2011, the action was transferred to the United States
District Court for the Eastern District of New York. On October
6, 2011, the district court denied Pierce's motion for a
preliminary injunction. On October 11, 2011, Pierce filed an
interlocutory appeal from the district court's October 6, 2011,
order. Notice of Appeal, Pierce v. Woldenberg, No. 11-cv-04248
(SJF) (AKT) (E.D.N.Y. Oct. 11, 2011), ECF Doc. No. 45.
On November 7, 2011, while the appeal was pending,
defendants moved in the district court for judgment on the
pleadings. On August 7, 2012, the district court granted
defendant's motion for judgment on the pleadings, and on August
9, 2012, it entered judgment dismissing the complaint. On August
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23, 2012, Pierce moved in the district court for an extension of
time to file his notice of appeal from the district court's
August 9, 2012, judgment -- from September 6, 2012, until "at
least" October 25, 2012, or "indefinitely" -- "to fully preserve
all rights to a second, entirely separate appeal, should it be
necessary." Letter Mot., Pierce v. Woldenberg, No. 11-cv-04248
(SJF) (AKT) (E.D.N.Y. Aug. 23, 2012), ECF Doc. No. 53. On August
27, 2012, the district court denied Pierce's motion "because
plaintiff [had] failed to make a showing of excusable neglect or
good cause." Order, Pierce v. Woldenberg, No. 11-cv-04248 (SJF)
(AKT) (E.D.N.Y. Aug. 27, 2012), ECF Doc. No. 54. Pierce never
appealed from the district court's August 9, 2012, judgment, or
from the August 27, 2012, order.
In these circumstances, because Pierce did not appeal
from the district court's August 9, 2012, judgment, or August 27,
2012, order, and because Pierce's complaint has been dismissed
and the merits decided against him, his request for preliminary
relief is moot. See Jennifer Matthew Nursing & Rehab. Ctr. v.
U.S. Dep't of Health & Human Servs., 607 F.3d 951, 956 (2d Cir.
2010) ("An appeal becomes moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in
the outcome." (internal quotation marks omitted)); Ruby v. Pan
Am. World Airways, Inc., 360 F.2d 691, 691-92 (2d Cir. 1966) (per
curiam) (dismissing appeal from denial of preliminary injunction
as moot where underlying complaint was dismissed). The purpose
of a preliminary injunction is to provide relief temporarily
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pending resolution of a case on the merits. See Irish Lesbian &
Gay Org. v. Giuliani, 143 F.3d 638, 645 (2d Cir. 1998) ("The
purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits can
be held." (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395
(1981))). Here, as the merits have already been decided against
him, Pierce's appeal from the denial of his motion for
preliminary relief is moot.
In any event, even assuming the request for injunctive
relief is not moot, the district court did not err in denying
Pierce's motion for a preliminary injunction because Pierce
failed to establish his likelihood of success on the merits or a
sufficiently serious question as to the merits of the case. See
Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011).
We also conclude, for largely the same reasons, that any appeal
taken from the dismissal of his complaint would have been
similarly without merit. Accordingly, we hereby DISMISS the
appeal.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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