16-3725 

Cherry v. New York City Department of Correction

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 5th day of October, two thousand seventeen. 

PRESENT: 

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH, 

Circuit Judges,

JED S. RAKOFF,

 District Judge.* 

_________________________________________ 

Bernard Cherry, 

Plaintiff-Appellant, 

v. 16-3725 

New York City Department of Correction, Eric 

Yuen, Attorney-Trials and Litigation Division, 

Defendants-Appellees. 

_________________________________________ 

FOR PLAINTIFF-APPELLANT: Bernard Cherry, pro se, Bronx, NY. 

FOR DEFENDANTS-APPELLEES: No appearance. 

 

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, 

sitting by designation.
Appeal from a judgment of the United States District Court for the Eastern District of 

New York (Cogan, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Bernard Cherry (“Cherry”), proceeding pro se, appeals from a judgment sua 

sponte dismissing his complaint against his former employer, the New York City Department of 

Correction (“DOC”), and a DOC attorney. Cherry was fired in 2007 after an administrative law 

judge at the Office of Administrative Trials and Hearings (“OATH”) found him guilty of 

excessive absenteeism and failure to comply with orders. The Appellate Division affirmed. In 

2008, Cherry sued the City, DOC, and several officials, asserting claims for employment 

discrimination. The district court dismissed that case on timeliness grounds, and we affirmed. In 

2016, Cherry filed this action under Federal Rules of Civil Procedure 60(d)(1) and (3), alleging 

that the defendants committed fraud on the court by submitting forged documents during the 

OATH hearing. We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal. 

The district court interpreted Cherry’s complaint as a request to vacate the judgment in 

Cherry’s employment discrimination suit. On appeal, however, Cherry clarifies that he was 

actually asking the district court to vacate the OATH decision. See Br. of Appellant Bernard 

Cherry at 4–5 (“[Judge Cogan] believes that I wanted him to vacate his ruling in his [2008] 

decision against me. In my complaint, I asked the Court to vacate the (OATH) decision . . . 

because fraud on the court was and still is present in that decision.”) (emphasis added). Although 

we must construe pro se complaints “liberally and interpret them ‘to raise the strongest 

arguments that they suggest,’” Kirkland v. Cablevision Systems, 760 F.3d 223, 224 (2d Cir. 
3 

2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), Cherry 

explicitly states that he was requesting the district court to vacate the judgment of the state 

administrative law judge. Accordingly, we affirm the district court’s dismissal on the grounds of 

lack of subject matter jurisdiction. 

A plaintiff bears the burden of establishing subject matter jurisdiction over his own claims. 

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). It is apparent from the face of 

Cherry’s complaint that there is no diversity jurisdiction under 28 U.S.C. § 1332. It is also apparent 

that there is no federal question jurisdiction under 28 U.S.C. § 1331. Cherry cites no relevant 

federal statute in his complaint or in his brief on appeal. Cherry does cite Federal Rules of Civil 

Procedure 60(d)(1) and (3), but it is well-settled that the Federal Rules of Civil Procedure “do not 

provide an independent ground for subject matter jurisdiction over an action for which there is 

no other basis for jurisdiction.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2d Cir. 

1990). Nor would Cherry’s complaint survive if we construed it as alleging a claim under 42 

U.S.C. § 1983, since he filed this suit after the relevant three-year statute of limitations elapsed. 

See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). Finally, the district court 

correctly refused to exercise ancillary jurisdiction over Cherry’s claims, since Cherry is seeking 

relief from judgment in a different tribunal than the one that handed down the judgment, and there 

is no independent ground for jurisdiction. See 11 Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure: Civil § 2868 (3d ed. 1998); see also United States v. Beggerly, 

524 U.S. 38, 46 (1998) (noting that “an independent action brought in the same court as the 

original lawsuit” does not “require[] an independent basis for jurisdiction”) (emphasis added). 
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We have considered Cherry’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the district court’s judgment. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk