1 20

- 3684

- pr Vasquez v. Rockland County 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 not ation “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 1 5 th day of November , two thousand twenty

- one

.

PRESENT: P IERRE N. L EVAL
, J OSÉ A. C ABRANES
, D ENNY C HIN , Circuit Judges

.

K

IM V ASQUEZ
,
Plaintiff

- Appell ant , 20

- 3684

- pr

v.

R OCKLAND C OUNTY
, S ERGEANT K ARL M UELLER , IN
HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A C ORRECTION O FFICER EMPLOYED BY THE C OUNTY

OF R OCKLAND
, S ERGEANT J OHN K LEBER , IN HIS

INDIVIDUAL AND OFFICIAL CAPACITY AS A C ORRECTION O FFICER EMPLOYED BY THE C OUNTY

OF R OCK LAND
, C ORRECTION O FFICER J OHN K EZEK
, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS A C ORRECTION O FFICER EMPLOYED BY THE C OUNTY

OF R OCKLAND
, C ORRECTION O FFICER P AUL O RBACZ
, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY

AS A C ORRECTION O FFICER EMPLOYED BY THE C OUNTY OF R OCKLAND
,
Defendants

- Appellees

. *

* The Clerk of Court is directed to amend the caption as set forth above. See Am. Compl. at 1.2 FOR PLAINTIFF

- APPELLANT: Kim Vasque z , pro se , Comstock , NY.

FOR DEFENDANTS

- APPELLEE S : Ari I. Bauer, Catina, Mahon & Rider PLLC, Newburgh, NY

.
Appeal from order s of the United States District Court for the Southern District of New York ( Sarah L. Cave

, Magistrate J udge ).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal of the February 24, 2020 order of t he District

Court is DISMISSED , and the October 15, 2020 order be and hereby is AFFIRMED

.
Plaintiff Kim Vasquez (“Vasquez”) appeals from a February 24, 2020 order granting summary judgment against him

, and from an October 15, 2020 order denying his Rule 60(b) motion
for reconsideration.

Through counsel, Kim Vasquez sued Rockland County and ind ividual Rockland County
Correctional Center officers (together “Defendants”) , alleging use of excessive force and retaliation against him for being a Muslim in violation of his constitutional rights under 42 U.S.C. § 1983. Vasquez’s counsel withdrew during discovery, after which Vasquez proceeded pro se

. D efendants moved for summary judgment

, and the D istrict C ourt granted the motion on all of Vasquez’s claims. Eight months later, Vasquez moved for reconsideration . Vasquez’s address had changed several

time s during the course of the litigation, and he claimed that he had not received D efendants’ motion for summary judgment. He also argued that he had been sick and injured when the District
Court dismissed the case and that he had not learn ed of the dismissal until he looked up the status
of his case on a jail house computer . He therefore argued that the D istrict C ourt erred in granting summary judgment when he had not been served with the motion and had had no opportunity to oppose it. The District C ourt denied Vasquez’s motion for reconsideration. Vasquez appeals, proceeding pro se

. We assume the parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal

.

DISCUSSION

1. Jurisdiction

As an initial matter, Vasquez’s appeal from the District Court’s order denying his Rule 60(b) motion is timely, but his appeal from the order granting Defendants ’ motion for summary judgment is untimely, and we have jurisdiction to review only the former

.
A notice of ap peal in a civil case must generally be “filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). That 30

- day3 period can be tolled if a party “files for relief under Rule 60,” but only “if the [Rule 60] motion is filed no later than 28 days after the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi). Vasquez did
not file his Rule 60 (b) motion within 28 days, an d so his 30

- day limit to appeal the summary judgment is not tolled . Therefore, his appeal of that judgment almost eight months later is untimely, and we do not have jurisdiction to review it. Bowles v. R ussell

, 551 U.S. 205, 209 (2007) ( “[T] aking of

an app eal within the prescribed time is mandatory and jurisdictional .” (internal quotation marks omitted).) However, because Vasquez filed his notice of appeal within 30 days of the District Court’s October 15 dismissal of his Rule 60(b) motion, we have jurisdic tion over the appeal insofar as we construe it as an appeal from the denial of that motion. 1 Therefore, only the District Court’s October 15 order is properly before us. Branum v. Clark , 927 F.2d 698, 704 (2d Cir. 1991) (“ An appeal from an order denying a Rule 60(b) motion brings up for review only the denial of the motion and not the merits of the underlying judgment .”).

2. Rule 60 (b) Order

We review a denial of a motion under Rule 60 ( b ) for an “ abuse of discretion. ” Branum
, 927
F.2d at 704

. A district court abuses its discretion when it “bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.” Yukos Capital S.A.R.L. v. Feldman , 977 F.3d 216, 234 (2d Cir. 2020) (internal quotation marks omitted). A motion for reconsideration is justified
where the movant identifies “an intervening change of controlling law, the availability of new evidence, or the need to cor rect a clear error or prevent manifest injustice.” Virgin Atl. Airways , Ltd.
v. Nat’l Mediation Bd.

, 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted ).

Vasquez does not point to any intervening change of controlling law in support of his motion for reconsideration. To the extent that he argues that new evidence warranted granting the

motion

— that he was sick or injured on February 20, 2020, four days before the District Court granted summary judgment, and he therefore could not update the court on his current address

— this does not constitute a fact “of such importance that it probably would have changed the
outcome” of the summary judgment order. Mirlis v. Greer , 952 F.3d 36, 50 (2d Cir. 2020) (internal quotation marks omitted).

1 While Vasquez’s notice of appeal does not explicitly mention the denial of his Rule 60 (b) motion, and a notice of appeal must “ designate the judgment, order or p art thereof appealed from,” Fed. R. App. P. 3(c)

, we “ construe notices of appeal liberally, taking the parties’ intentions into account.” Meilleur v. Strong , 682 F.3d 56, 60 (2d Cir. 2012) ( internal quotation marks omitted )

. Vasquez describes his notice of appeal as having been filed “promptly upon . . . denial of his motion for reconsideration,” Appellant’s Br. 4, and argues the m agistrate j udge abused her discretion in denying that motion, id. 20, 27, making his “ intention to seek review of both” the summ ary judgment and reconsideration motions “manifest .” See Foman v. Davis, 371 U.S. 178, 181 (1962)

.4 We also do not credit Vasquez’s argument that he allegedly was not served with the summary judgment motion, which denied him an “opportunity to be heard” in opposing the motion. Vasquez has never addressed the magistrate judge’s ruling that his claim not to h ave received the summary judgment motion was “ not credible. ” See Vasquez v. Rockland County et al. , 13

-

cv

- 5632 (S.D.N.Y. Feb. 25, 2020), ECF 117 (Order)

.
In any event, Federal Rule of Civil Procedure 5 permits service of motion papers by mail at a party’s “ last known ” address, “in which event service is complete upon mailing

. ” Fed. R. Civ. P. 5(b)(2)(C ) ( emphasis added ) . It was Vasquez’s responsibility to keep the court apprised of his most current address, as he did several times throughout the litigatio n. Prior to the filing of the summary judgment motion on January 10, 2018, Vasquez had last updated his address to a residence in Texas on May 31, 2017. The record is clear that Vasquez was served with the motion at that address, his
last known physical ad dresses prior to that, and at three different email addresses. F inally, Vasquez acknowledges that not receiving the summary judgment motion papers may have been due to his family not giving him the mail, or to his mental health issues, rather than not bein g served. Thus, the

District C ourt’s ruling that he received the motion does not constitute “clear error” or “manifest injustice.” See United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009) ( manifest injustice standard is
“deferential to district courts and provide[s] relief only in the proverbial rare case ”); s ee also Pollard v.

Does , 452 F. App’x 38, 40 (2d Cir. 2011) (summary order) (district court did not abuse its discretion in denying Rule 60(b) motion where movan t failed to comply with a court order to keep his address
current and knew how to update his address, having done so previously ).

V asquez argues separately that the District Court erred in designating a magistrate judge to decide the summary judgment motion. Appellant’s Br. 6, 25. This is not so, because, as Vasquez admits, his counsel consented to a magistrate judge’s jurisdiction. 2 8 U.S.C. § 636(b)(1)(A), (c)(1).

CONCLUSION

We have reviewed all of the arguments raised by Vasquez on appeal and find them to be
without merit. For the foregoing reasons, we DISMISS the appeal of the February 24, 2020 order of the District Court, and we AFFIRM the October 15, 2020 order of the District Court

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk