Muller v. Holmes , 353 F. App'x 664 ( 2009 )

08-1680-pr
Muller v. Holmes
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24 th day of November, two thousand nine.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 Circuit Judge,
10 GEORGE B. DANIELS, *
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 RA’SHAUN MULLER,
15
16 Plaintiff-Appellant,
17
18 -v.- 08-1680-pr
19 ALTON HOLMES and CATHERINE DUNCAN, **
20
21 Defendants-Appellees.
22 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable George B. Daniels, United States
District Court for the Southern District of New York,
sitting by designation.
**
The Clerk of Court is instructed to amend the
official caption in this case to conform to the listing of
the parties above.
1
1 APPEARING FOR APPELLANT: ROBERT J. BOYLE, Law Office of
2 Robert J. Boyle, New York, N.Y.
3
4 APPEARING FOR APPELLEES: MARTIN A. HOTVET, Assistant
5 Solicitor General (Andrew M.
6 Cuomo, Attorney General of the
7 State of New York, Barbara D.
8 Underwood, Solicitor General,
9 Andrea Oser, Deputy Solicitor
10 General), Office of the
11 Attorney General, Albany, N.Y.
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Ra’Shaun Muller, an inmate, sued two employees of the
18 New York State Department of Correctional Services, under 42
19 U.S.C. § 1983, alleging that they reduced his pay and
20 discharged him from his prison job, in retaliation for
21 filing inmate grievances. Muller appeals from the judgment
22 of the United States District Court for the Northern
23 District of New York (McAvoy, J. and Kahn, J.), dismissing
24 the complaint. We assume the parties’ familiarity with the
25 underlying facts, the procedural history, and the issues
26 presented for review.
27
28 Muller’s appellate brief challenges (i) the denial of
29 his request for the issuance of four writs of habeas corpus
30 ad testificandum, (ii) the grant of partial summary judgment
31 in favor of the defendants with respect to the job removal
32 basis of his retaliation claim, and (iii) the denial of his
33 request that the district court ask particular questions
34 during the voir dire. However, our appellate jurisdiction
35 is limited to the district court’s March 13, 2008 denial of
36 Muller’s request for the issuance of four writs of habeas
37 corpus ad testificandum.
38
39 Muller’s notice of appeal provides: “NOTICE is hereby
40 given that Mr. RA’SHAUN MULLER, Plaintiff in the above named
41 case, hereby Appeals to the United States Court of Appeals
42 for the Second Circuit from an Order denying the testimony
43 of inmate and non-inmate witnesses and impeding plaintiff’s
2
1 full and fair opportunity to be heard, entered on the 13th
2 day of March, 2008, and received by plaintiff on the 17th
3 day of March, 2008.”
4
5 We liberally construe notices of appeal, especially
6 notices filed pro se. See Shrader v. CSX Transp., Inc., 70
7 F.3d 255, 256 (2d Cir. 1995) (“[W]e construe notices of
8 appeal liberally, taking the parties’ intentions into
9 account.”); Marvin v. Goord, 255 F.3d 40, 42 n.1 (2d Cir.
10 2001) (per curiam) (pro se notices of appeal are construed
11 liberally); Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir.
12 1997) (same). Nevertheless, appellate “jurisdiction is
13 limited by the wording of the notice.” The New Phone Co.,
14 Inc. v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007)
15 (per curiam); see also Fed. R. App. P. 3(c)(1) (“The notice
16 of appeal must . . . designate the judgment, order, or part
17 thereof being appealed.”). The express language of Muller’s
18 notice of appeal thus limits our jurisdiction to review of
19 the denial of Muller’s request for the issuance of four
20 writs of habeas corpus ad testificandum.
21
22 The district court denied Muller’s request based on the
23 following reasoning:
24
25 [The] requested inmate witnesses would purportedly
26 testify only to their own circumstances of being
27 removed and then returned to their employment
28 within the Medical Unit following their release
29 from “keeplock.” Inasmuch as the Court has
30 already decided that “plaintiff’s removal from his
31 job cannot form the basis for any part of
32 plaintiff’s retaliation claim,” the purported
33 testimony of these witness[es] would be irrelevant
34 to the issue to be tried.
35
36 The district court determined that the testimony that might
37 be obtained via issuance of the writs would focus on the job
38 discharge claim, which had been dismissed pursuant to an
39 earlier grant of partial summary judgment, and that the
40 testimony would not be relevant to the remaining pay
41 reduction basis of Muller’s retaliation claim. Muller’s
42 arguments to the contrary lack merit. Accordingly, we
43 detect no error in the district court’s denial of Muller’s
44 request for the issuance of four writs of habeas corpus ad
45 testificandum.
3
1 For the foregoing reasons, the judgment of the district
2 court is AFFIRMED.
3
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8 By:___________________________
4