Thompson v. Rizzitelli

15-3425
Thompson v. Rizzitelli
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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
31st day of May, two thousand seventeen.
Present: JON O. NEWMAN,
ROSEMARY S. POOLER,
PETER W. HALL,
Circuit Judges.
_____________________________________________________
MELVIN THOMPSON,
Plaintiff-Counter-Defendant-
Appellant,
SAMUEL M. RIZZITELLI, JR.,
Plaintiff-Counter-Defendant,
v. 15-3425
SAM RIZZITELLI, SHELIA PARIZO, SANDY WATSON,
ANITA DUGGATTO, CHRISTINE ROBINSON,
DERBY DEMOCRATIC TOWN COMMITTEE,
Defendants-Appellees,
JAMES WATSON, DAN SEXTON, RONALD SILL,
JOYCE SILL, PAUL VARSANIK, JR., JOHN ORAZIETTI,
Defendants.
_____________________________________________________
Appearing for Appellant: Melvin Thompson, pro se, Derby, CT.
Appearing for Appellees: Elio Morgan, Bridgeport, CT.
Appeal from the United States District Court for the District of Connecticut (Shea, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal of said District Court be and it hereby is DISMISSED
WITHOUT PREJUDICE to reinstatement.
Plaintiff-Appellant Melvin Thompson, proceeding pro se, appeals from the September
29, 2015 judgment of United States District Court for the District of Connecticut (Shea, J.),
entering judgment in favor of Defendants-Appellees Sam Rizzitelli, Shelia Parizo, Sandy
Watson, Anita Duggatto, Christine Robinson, and Derby Democratic Town Committee
following a jury trial. Thompson challenges the district court’s exclusion at trial of a settlement
agreement and testimony regarding that agreement. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.
We review the district court’s evidentiary rulings for abuse of discretion. Warren v.
Pataki, 823 F.3d 125, 137 (2d Cir. 2016). Even when we conclude that the district court abused
its discretion, however, “an erroneous evidentiary ruling warrants a new trial only when a
substantial right of a party is affected, as when a jury’s judgment would be swayed in a material
fashion by the error.” Id. at 138 (internal quotation marks omitted).
In the instant case, Thompson has failed to provide this Court with the necessary
transcripts from the proceedings below. Federal Rule of Appellate Procedure 10(b) requires an
appellant, within 14 days after the filing of a notice of appeal, to either (1) order transcripts from
any proceedings that are necessary to the appeal from the reporter and file such order with the
district court; or (2) file a certificate stating that no transcript will be ordered. Thompson did
neither. Without the transcripts, we cannot determine whether the district court’s evidentiary
ruling was an abuse of discretion or whether, considering the entirety of the evidence presented
at trial, any error was harmless. Accordingly, consistent with the long-established practice of
this Court, we are constrained to dismiss Thompson’s appeal. See Wrighten v. Glowski, 232 F.3d
119, 120 (2d Cir. 2000) (dismissing portion of the appeal with prejudice where “plaintiff failed
to provide this Court with the trial transcripts needed to conduct meaningful appellate review”);
Gayle v. Walker, 148 F.3d 214, 214 (2d Cir. 1998) (dismissing pro se appeal without prejudice to
reinstatement for failure to file transcripts).
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Thompson’s appeal is therefore DISMISSED WITHOUT PREJUDICE to
reinstatement, provided that, within 30 days of the date of this order, he provides the Court with
(1) the transcripts of the two pretrial conferences discussing the admissibility of the settlement
agreement and the trial transcripts or (2) proof that he has ordered the transcripts. Upon timely
filing of the transcripts, the appeal will be reinstated.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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