Smurphat v. Hobb ( 2020 )

19-4276
Smurphat v. Hobb
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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 24th day of September, two thousand twenty.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Kevin C. Smurphat, II,
Plaintiff-Appellant,
v. 19-4276
Michael Hobb, Parole Officer, Sharron
Tabone, Senior Parole Officer, Chris Sawyer,
Parole Officer, Kyle Reif, Parole Officer,
Scott Bailey, Parole Officer, Rick Hotaling,
Senior Parole Officer, Jeff Kirker, Bureau
Chief, Ken Gilbert, Regional Director,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Kevin C. Smurphat, II, pro se, Malone, NY.
FOR DEFENDANTS-APPELLEES: No appearance.
Appeal from an order of the United States District Court for the Northern District of New
York (Glenn T. Suddaby, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED.
Plaintiff-Appellant Kevin C. Smurphat II, pro se, appeals from an order of the district court
entered on December 13, 2019 (the “December 13 Order”), sua sponte dismissing his civil rights
complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim. More specifically,
in adopting the magistrate judge’s report and recommendation, the district court dismissed certain
of Smurphat’s claims with prejudice and other claims without prejudice, and allowed him to file
an amended complaint within thirty days. Smurphat then filed an interlocutory appeal from the
December 13 Order, resulting in the present proceeding. He later filed an amended complaint in
the district court, which has not yet been served on defendants, and remains pending for review
before the magistrate judge. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues on appeal.
This Court has appellate jurisdiction over “final decisions of the district courts.”
28 U.S.C. § 1291; In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 35 (2d Cir.
2014) (per curiam). “A final judgment or order is one that conclusively determines all pending
claims of all the parties to the litigation, leaving nothing for the court to do but execute its
decision.” Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008); see also Fed. R. Civ. P. 54(b)
(stating that unless the district court enters partial final judgment, an order “that adjudicates fewer
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than all the claims . . . does not end the action . . . and may be revised at any time before the entry
of a judgment adjudicating all the claims”). A district court’s non-final order is only appealable
if: (1) the order relates to an injunction; (2) the district court certifies the order for immediate
appeal under 28 U.S.C. § 1292(b); (3) the district court enters partial final judgment under Federal
Rule of Civil Procedure 54(b); or (4) the order falls within the collateral order doctrine (or other
statutes or rules not relevant to this appeal). See United States v. Culbertson, 598 F.3d 40, 45-46
(2d Cir. 2010).
Smurphat contends that the Court has jurisdiction under 28 U.S.C. § 1291. We disagree.
The December 13 Order is non-final under § 1291 because the district court granted Smurphat the
opportunity to amend certain claims and, thus, did not conclusively determine all pending claims.
See Slayton v. Am. Exp. Co., 460 F.3d 215, 224 (2d Cir. 2006) (“A dismissal with leave to amend
is a non-final order and not appealable.”). In order to render such an order final and appealable,
an appellant must disclaim any intent to re-plead, or the appellant must no longer be able to file an
amended complaint because the deadline for such filing has expired. Id. at 224 n.7. Here,
Smurphat filed an amended complaint, which remains pending before the magistrate judge. 1
Moreover, the district court has not entered partial final judgment under Rule 54(b) as to the claim
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We note that, after Smurphat filed the Notice of Appeal and failed to file an amended complaint
by the deadline set in the December 13 Order, the district court directed the Clerk of the Court to
enter judgment in favor of defendants and close the action. Thereafter, Smurphat filed a motion
to vacate the judgment in which he indicated that, although he was attempting to appeal the district
court’s decision, he also wished to file the amended complaint, which was attached to his motion.
The district court subsequently granted Smurphat’s motion to vacate the judgment because of his
pro se status and his desire not to end the case, and the district court directed the Clerk of the Court
to file Smurphat’s amended complaint for review by the magistrate judge in accordance with the
December 13 Order. Therefore, as stated above, the amended complaint is currently pending
review before the magistrate judge, and the December 13 Order continues to be non-final.
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discussed in Smurphat’s brief (or any other claim), nor has the district court certified the December
13 Order for interlocutory appeal under § 1292(b). Finally, although Smurphat has requested
injunctive relief along with monetary damages in both his initial complaint and amended
complaint, he did not move for an injunction in the district court, and the December 13 Order does
not relate to the issue of injunctive relief. Thus, the issue of injunctive relief remains unresolved
in the ongoing proceedings related to the amended complaint and cannot provide a basis for
interlocutory appeal of the December 13 Order. See Huminski v. Rutland City Police Dep’t, 221
F.3d 357, 359 (2d Cir. 2000) (finding that the district court’s order dismissing certain claims was
non-appealable notwithstanding the fact that the complaint generally sought preliminary and
permanent injunctive relief). In short, because the December 13 Order is non-final and no
exception to the final judgment rule applies, we lack jurisdiction over this appeal.
For the foregoing reasons, the appeal is DISMISSED for lack of jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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