14-865 Thomas v. Toporek



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A**  **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 14 th** **day of May, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DEBRA ANN LIVINGSTON,** 7 **Circuit Judges ,**  8 **GREGORY H. WOODS,** ***** 9 **District Judge**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **TIMOTHY THOMAS,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 14-865** 16 17 **DIANE TOPOREK, ROSALYN KILLINGER, CARL** 18 **J. KOENIGSMANN,** 19 **Defendants-Appellees**
**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22

* Judge Gregory H. Woods, of the United States District Court for the Southern District of New York, sitting by designation.

1**FOR APPELLANT:** Timothy Thomas, pro se , Alden, 1 New York. 2 3 **FOR APPELLEES:** Barbara D. Underwood, Andrew B. 4 Ayers, Zainab A. Chaudhry, for 5 Eric T. Schneiderman, Attorney 6 General of the State of New 7 York, Albany, New York. 8 9 Appeal from a judgment of the United States District 10 Court for the Western District of New York (Telesca, J. ). 11 12 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 13 **AND DECREED**that the judgment of the district court be 14 **VACATED**and **REMANDED**

. 15 16 Timothy Thomas appeals from the judgment of the United 17 States District Court for the Western District of New York 18 (Telesca, J. ), granting defendants’ motion to dismiss 19 pursuant to Federal Rule of Civil Procedure 12(b)(6)

. We 20 assume the parties’ familiarity with the underlying facts, 21 the procedural history, and the issues presented for review. 22 23 Thomas, an inmate at the Wende Correctional Facility, 24 sued three defendants employed by the New York State 25 Department of Corrections and Community Supervision pursuant 26 to 42 U.S.C. § 1983. His pro se complaint alleges that 27 defendants were deliberately indifferent to his medical 28 needs in violation of the Eighth Amendment. On March 6, 29 2014, the district court granted defendants’ motion to 30 dismiss pursuant to Rule 12(b)(6). Thomas appeals from that 31 dismissal. 32 33 Thomas’s appellate brief and an unusual notation on the 34 district court’s docket (see App. at 5, no. 12) reflect the 35 likelihood that Thomas never received a copy of the district 36 court’s March 6, 2014 Decision and Order. In this unique 37 case, in order to ensure that Thomas has a full and fair 38 opportunity to challenge the merits of the district court’s 39 decision, remand is warranted. 40 41 We hereby **VACATE** and **REMAND**the judgment of the 42 district court. On remand, the district court may issue a 43 decision that is identical to its March 6, 2014 decision if 44

2it wishes. The district court, however, must ensure 1 delivery of all relevant documents to Thomas. If Thomas 2 files another notice of appeal in this matter, he should 3 attach a copy of this order, and the Clerk of Court is 4 directed to waive the filing fee. 5 6 FOR THE COURT: 7 CATHERINE O’HAGAN WOLFE, CLERK 8 9

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