The Honorable George B. Daniels, United States *

District Court for the Southern District of New York,

sitting by designation. 

 The Clerk of Court is instructed to amend the **

official caption in this case to conform to the listing of

the parties above. 

1

08-1680-pr

Muller v. Holmes

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 24 day of November, two thousand nine. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 Circuit Judge,

10 GEORGE B. DANIELS,*

11 District Judge.

12

13 - - - - - - - - - - - - - - - - - - - -X

14 RA’SHAUN MULLER,

15

16 Plaintiff-Appellant,

17

18 -v.- 08-1680-pr

ALTON HOLMES and CATHERINE DUNCAN,** 19

20

21 Defendants-Appellees.

22 - - - - - - - - - - - - - - - - - - - -X
2

1 APPEARING FOR APPELLANT: ROBERT J. BOYLE, Law Office of

2 Robert J. Boyle, New York, N.Y.

3

4 APPEARING FOR APPELLEES: MARTIN A. HOTVET, Assistant

5 Solicitor General (Andrew M.

6 Cuomo, Attorney General of the

7 State of New York, Barbara D.

8 Underwood, Solicitor General,

9 Andrea Oser, Deputy Solicitor

10 General), Office of the

11 Attorney General, Albany, N.Y. 

12

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

14 AND DECREED that the judgment of the district court be

15 AFFIRMED. 

16

17 Ra’Shaun Muller, an inmate, sued two employees of the

18 New York State Department of Correctional Services, under 42

19 U.S.C. § 1983, alleging that they reduced his pay and

20 discharged him from his prison job, in retaliation for

21 filing inmate grievances. Muller appeals from the judgment

22 of the United States District Court for the Northern

23 District of New York (McAvoy, J. and Kahn, J.), dismissing

24 the complaint. We assume the parties’ familiarity with the

25 underlying facts, the procedural history, and the issues

26 presented for review. 

27

28 Muller’s appellate brief challenges (i) the denial of

29 his request for the issuance of four writs of habeas corpus

30 ad testificandum, (ii) the grant of partial summary judgment

31 in favor of the defendants with respect to the job removal

32 basis of his retaliation claim, and (iii) the denial of his

33 request that the district court ask particular questions

34 during the voir dire. However, our appellate jurisdiction

35 is limited to the district court’s March 13, 2008 denial of

36 Muller’s request for the issuance of four writs of habeas

37 corpus ad testificandum.

38

39 Muller’s notice of appeal provides: “NOTICE is hereby

40 given that Mr. RA’SHAUN MULLER, Plaintiff in the above named

41 case, hereby Appeals to the United States Court of Appeals

42 for the Second Circuit from an Order denying the testimony

43 of inmate and non-inmate witnesses and impeding plaintiff’s
3

1 full and fair opportunity to be heard, entered on the 13th

2 day of March, 2008, and received by plaintiff on the 17th

3 day of March, 2008.” 

4

5 We liberally construe notices of appeal, especially

6 notices filed pro se. See Shrader v. CSX Transp., Inc., 70

7 F.3d 255, 256 (2d Cir. 1995) (“[W]e construe notices of

8 appeal liberally, taking the parties’ intentions into

9 account.”); Marvin v. Goord, 255 F.3d 40, 42 n.1 (2d Cir.

10 2001) (per curiam) (pro se notices of appeal are construed

11 liberally); Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir.

12 1997) (same). Nevertheless, appellate “jurisdiction is

13 limited by the wording of the notice.” The New Phone Co.,

14 Inc. v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007)

15 (per curiam); see also Fed. R. App. P. 3(c)(1) (“The notice

16 of appeal must . . . designate the judgment, order, or part

17 thereof being appealed.”). The express language of Muller’s

18 notice of appeal thus limits our jurisdiction to review of

19 the denial of Muller’s request for the issuance of four

20 writs of habeas corpus ad testificandum.

21

22 The district court denied Muller’s request based on the

23 following reasoning: 

24

25 [The] requested inmate witnesses would purportedly

26 testify only to their own circumstances of being

27 removed and then returned to their employment

28 within the Medical Unit following their release

29 from “keeplock.” Inasmuch as the Court has

30 already decided that “plaintiff’s removal from his

31 job cannot form the basis for any part of

32 plaintiff’s retaliation claim,” the purported

33 testimony of these witness[es] would be irrelevant

34 to the issue to be tried. 

35

36 The district court determined that the testimony that might

37 be obtained via issuance of the writs would focus on the job

38 discharge claim, which had been dismissed pursuant to an

39 earlier grant of partial summary judgment, and that the

40 testimony would not be relevant to the remaining pay

41 reduction basis of Muller’s retaliation claim. Muller’s

42 arguments to the contrary lack merit. Accordingly, we

43 detect no error in the district court’s denial of Muller’s

44 request for the issuance of four writs of habeas corpus ad

45 testificandum. 
4

1 For the foregoing reasons, the judgment of the district

2 court is AFFIRMED.

3

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

7

8 By:___________________________