Jenkins v. County of Washington

16-3260
Jenkins v. County of Washington
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 ASUMMARY 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 21st day of September, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
______________________________________________________
PEDDIE JENKINS,
Plaintiff-Appellant,
v. 16-3260
COUNTY OF WASHINGTON, WASHINGTON COUNTY
SHERIFF'S DEPARTMENT, JEFFEREY MURPHY,
WASHINGTON COUNTY SHERIFF, individually, JOHN
WINCHELL, WASHINGTON COUNTY UNDERSHERIFF,
individually, SCOTT STARK, WASHINGTON COUNTY
SHERIFF'S DEPUTY, individually, VILLAGE OF HUDSON
FALLS, HUDSON FALLS POLICE DEPARTMENT, RANDY
DIAMOND, HUDSON FALLS POLICE CHIEF, individually,
SCOTT GILLIS, HUDSON FALLS POLICE OFFICER,
individually, SCOTT MOULTHROP, HUDSON FALLS POLICE
OFFICER, CITY OF GLENS FALLS, CITY OF GLENS FALLS
POLICE DEPARTMENT, WILLIAM VALENZA, GLENS FALLS
POLICE CHIEF, individually, PETER CASERTINO, GLENS
FALLS POLICE OFFICER, individually, PAUL FRETTELOSO,
GLENS FALLS POLICE OFFICER, individually, NEW YORK
STATE COMMISSIONER OF DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION, MARIO
TORRES, individually, SCOTT HURTEAU, NEW YORK STATE
PAROLE OFFICER, individually, WASHINGTON COUNTY
DISTRICT ATTORNEY'S OFFICE, KEVIN KORTRIGHT,
WASHINGTON COUNTY DISTRICT ATTORNEY, individually,
DEVIN ANDERSON, WASHINGTON COUNTY ASSISTANT
DISTRICT ATTORNEY, individually, MICHAEL STERN,
WASHINGTON COUNTY ASSISTANT DISTRICT ATTORNEY,
individually,
Defendants-Appellees.
______________________________________________________
FOR APPELLANT: Peddie Jenkins, pro se, Granville, NY.
FOR COUNTY OF WASHINGTON April J. Laws, Esq., Lemire, Johnson & Higgins,
APPELLEES: LLC, Malta, NY.
FOR VILLAGE OF HUDSON FALLS Thomas Mortati, Esq., Burke, Scolamiero, Mortati &
APPELLEES: Hurd, LLP, Albany, NY.
FOR CITY OF GLEN FALLS William C. Firth, Esq., Carter, Conboy, Case,
APPELLEES: Blackmore, Maloney & Laird, P.C., Albany, NY.
FOR STATE OF NEW YORK Frank Brady, Assistant Solicitor General, for
APPELLEES: Barbara Underwood, Solicitor General of the State
of New York, Albany, NY.
Appeal from a judgment and an order of the United States District Court for the Northern
District of New York (Suddaby, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal from the judgment is DISMISSED for lack of jurisdiction, and the
order of the district court is AFFIRMED.
Plaintiff-Appellant Peddie Jenkins, pro se, appeals from the district court’s judgment
dismissing his complaint and from its order denying his motion for relief under Federal Rule of
Civil Procedure 60(b)(5) and for leave to amend the complaint under Federal Rule of Civil
Procedure 15(a). Jenkins additionally argues, for the first time on appeal, that the district court
judge should have recused himself. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
We lack jurisdiction to review the district court’s judgment dismissing Jenkins’ complaint.
A Rule 60(b) motion filed within twenty-eight days of the judgment tolls the thirty-day deadline to
appeal. Fed. R. App. P. 4(a)(1)(A), (4)(A)(vi). Jenkins, however, did not move for Rule 60(b)
relief within the twenty-eight-day deadline and does not argue that he is entitled to an equitable
exception or that the Appellees waived their timeliness objection. See Weitzner v. Cynosure, Inc.,
802 F.3d 307, 311-13 (2d Cir. 2015). We acknowledge, as Jenkins explained, that after judgment
was entered in favor of the defendants, he made efforts to locate an attorney to replace former
counsel in this case. Such circumstances, however, are not recognized as an equitable exception
that tolls the thirty-day deadline to appeal. We therefore conclude that Jenkins’ notice of appeal
(which was filed outside of the applicable thirty-day deadline) was untimely, and that we lack
jurisdiction to review the district court’s judgment.
Jenkins has likewise failed to show that the district court’s denial of his motion for Rule
60(b)(5) relief and for leave to amend his complaint was improper. We review denials of Rule
60(b) relief and leave to amend for abuse of discretion. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir.
2012); Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010). “[A] final judgment or order has
prospective application for purposes of Rule 60(b)(5) only where it is executory or involves the
supervision of changing conduct or conditions.” Tapper v. Hearn, 833 F.3d 166, 170 (2d Cir.
2016) (internal quotation marks omitted). Here, Jenkins does not challenge the district court’s
conclusion that he was ineligible for relief under the prospective clause in Rule 60(b)(5), and thus
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has abandoned the issue. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).
Jenkins is further ineligible for such relief because the judgment “was immediately final and
required nothing of the parties or the district court going forward.” See Tapper, 833 F.3d at 171.
The district court accordingly did not abuse its discretion in denying Jenkins’ motion for Rule
60(b)(5) relief and for leave to amend his complaint. See Ruotolo v. City of New York, 514 F.3d
184, 191 (2d Cir. 2008).
Finally, there is no basis for the district court judge’s recusal. Jenkins did not raise this
argument in the district court, and we generally will not entertain issues raised for the first time on
appeal. Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 1994). Moreover, although Jenkins asserts
that the district court judge “was born in th[e] area and was . . . a former prosecutor,” this is
insufficient to demonstrate that “an objective, disinterested observer” would not have
“entertain[ed] significant doubt that justice would [have] be[en] done absent recusal.” See
Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir. 1998) (quoting United States v. Lovaglia,
954 F.2d 811, 815 (2d Cir.1992)).
Accordingly, we DISMISS Jenkins’s appeal from the underlying judgment and AFFIRM
the order denying Rule 60(b) relief and leave to amend.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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