14-865

Thomas v. Toporek

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 14th 4 day of May, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 DEBRA ANN LIVINGSTON,

8 Circuit Judges,

GREGORY H. WOODS,* 9

10 District Judge.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 TIMOTHY THOMAS, 

14 Plaintiff-Appellant,

15

16 -v.- 14-865

17

18 DIANE TOPOREK, ROSALYN KILLINGER, CARL

19 J. KOENIGSMANN, 

20 Defendants-Appellees.

21 - - - - - - - - - - - - - - - - - - - -X

22

* Judge Gregory H. Woods, of the United States District

Court for the Southern District of New York, sitting by

designation.

1
1 FOR APPELLANT: Timothy Thomas, pro se, Alden,

2 New York.

3

4 FOR APPELLEES: Barbara D. Underwood, Andrew B.

5 Ayers, Zainab A. Chaudhry, for

6 Eric T. Schneiderman, Attorney

7 General of the State of New

8 York, Albany, New York.

9

10 Appeal from a judgment of the United States District

11 Court for the Western District of New York (Telesca, J.).

12

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14 AND DECREED that the judgment of the district court be

15 VACATED and REMANDED. 

16

17 Timothy Thomas appeals from the judgment of the United

18 States District Court for the Western District of New York

19 (Telesca, J.), granting defendants’ motion to dismiss

20 pursuant to Federal Rule of Civil Procedure 12(b)(6). We

21 assume the parties’ familiarity with the underlying facts,

22 the procedural history, and the issues presented for review. 

23

24 Thomas, an inmate at the Wende Correctional Facility,

25 sued three defendants employed by the New York State

26 Department of Corrections and Community Supervision pursuant

27 to 42 U.S.C. § 1983. His pro se complaint alleges that

28 defendants were deliberately indifferent to his medical

29 needs in violation of the Eighth Amendment. On March 6,

30 2014, the district court granted defendants’ motion to

31 dismiss pursuant to Rule 12(b)(6). Thomas appeals from that

32 dismissal.

33

34 Thomas’s appellate brief and an unusual notation on the

35 district court’s docket (see App. at 5, no. 12) reflect the

36 likelihood that Thomas never received a copy of the district

37 court’s March 6, 2014 Decision and Order. In this unique

38 case, in order to ensure that Thomas has a full and fair

39 opportunity to challenge the merits of the district court’s

40 decision, remand is warranted.

41

42 We hereby VACATE and REMAND the judgment of the

43 district court. On remand, the district court may issue a

44 decision that is identical to its March 6, 2014 decision if

2
1 it wishes. The district court, however, must ensure

2 delivery of all relevant documents to Thomas. If Thomas

3 files another notice of appeal in this matter, he should

4 attach a copy of this order, and the Clerk of Court is

5 directed to waive the filing fee.

6

7 FOR THE COURT:

8 CATHERINE O’HAGAN WOLFE, CLERK

9

3