    17-639-cv
    Yeldon v. Fisher

                            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 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
    18th day of March, two thousand nineteen.

    PRESENT:
                       PETER W. HALL,
                       GERARD E. LYNCH,
                            Circuit Judges,
                       PAUL G. GARDEPHE,*
                             District Judge.


    WILLIE JAMES YELDON,

                             Plaintiff-Appellant,

                       v.                                                 No. 17-639-cv

    BRIAN FISHER, COMMISSIONER OF DEPARTMENT OF CORRECTIONAL
    FACILITY, A. DEPERIO, M.D. PHYSICIAN OF WYOMING CORRECTIONAL
    FACILITY, TOM EDWARDS, M.D. PHYSICIAN OF ATTICA CORRECTIONAL
    FACILITY, GLEN CHAMPAGNE, M.D. PHYSICIAN OF FRANKLIN
    CORRECTIONAL FACILITY, DARRYL DIRISIO, M.D. SURGEON OF ALBANY
    MEDICAL CENTER HOSPITAL, TAESOO, M.D. PHYSICIAN OF FRANKLIN
    CORRECTIONAL FACILITY, CHEN GEORGE-PAI, SURGEON/PHYSICIAN OF
    ALICE HYDE MEDICAL CENTER HOSPITAL, DANIEL M. DOWNS, M.D.
    SURGEON OF WYOMING COUNTY COMMUNITY HOSPITAL, HABIB
    SHIEKH, PHYSICIAN OF WYOMING CORRECTIONAL FACILITY,

                             Defendants-Appellees.




                                                                
    *  Judge Paul G. Gardephe, of the United States District Court for the Southern District of
    New York, sitting by designation.

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Appearing for Plaintiff-Appellant:                 JON ROMBERG (Elizabeth Kaminski, Anthony
                                                   Cocuzza, on the brief), Seton Hall University School of
                                                   Law Center for Social Justice, Newark, NJ.

Appearing for Defendant-Appellee
Darryl DiRisio:                                    ROBERT A. RAUSCH, Maynard, O’Connor, Smith, &
                                                   Catalinotto, LLP, Albany, NY.

Appearing for State Defendants-Appellees:          JONATHAN D. HITSOUS, Assistant Solicitor General, for
                                                   Letitia James, Attorney General of the State of New
                                                   York, Albany, NY.


         Appeal from orders of the United States District Court for the Western District of New York

(Arcara, J.).

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

DECREED that the matter be REMANDED for supplementation of the record and additional

factfinding consistent with this order.

         Plaintiff-Appellant Willie James Yeldon appeals from two orders of the district court, one

denying his motion to vacate a stipulation of dismissal and one denying reconsideration. In 2007,

Yeldon, then a prisoner at Wyoming Correctional Facility, filed a 42 U.S.C. § 1983 complaint in the

Western District of New York (the “W.D.N.Y. case”), claiming deliberate indifference to his serious

medical needs. A magistrate judge granted summary judgment to the defendants, but we remanded

for further consideration, concluding that the magistrate judge lacked authority to enter judgment

because Yeldon had not provided his consent to proceeding before a magistrate judge. Yeldon v. Fisher,

710 F.3d 452 (2d Cir. 2013) (per curiam).

         In the meantime, Yeldon had been civilly confined at the Central New York Psychiatric Center

(“CNYPC”). He filed another lawsuit, this time in the Northern District of New York (the “N.D.N.Y.

case”), claiming assault by CNYPC employees. He was assigned pro bono counsel in the N.D.N.Y.

case, and counsel pursued settlement negotiations on his behalf. Yeldon ultimately settled the

N.D.N.Y. case. That settlement agreement purported also to release his claims in the W.D.N.Y. case.


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        Yeldon subsequently moved to set aside a stipulation of dismissal filed in the W.D.N.Y. case.

The district court denied the motion and denied reconsideration. The district court’s second order

was entered on January 24, 2017. Yeldon’s notice of appeal was therefore due on or before February

23, 2017. See Fed. R. App. P. 4(a)(1)(A). His notice was postmarked February 27, 2017, and filed on

March 1, 2017. The notice, however, was dated February 21, 2017. Yeldon affirmed, under penalty

of perjury, that he had served counsel for the W.D.N.Y. defendants on that same day.

        On appeal, one of the private defendants, Dr. Darryl DiRisio, moved to dismiss Yeldon’s

appeal as untimely. We denied the motion and appointed pro bono counsel to address, among other

things, whether Yeldon was entitled to the benefit of the prison mailbox rule, Federal Rule of

Appellate Procedure 4(c). The parties then filed their briefs, and the State defendants moved to

dismiss the appeal. The State concedes that Yeldon is entitled to the benefit of Rule 4(c) (and DiRisio

has forfeited the issue by failing to address it in his brief, despite our having explicitly drawn the

parties’ attention to the issue). The State argues, nonetheless, that Yeldon’s notice of appeal is still

untimely. In support of this argument, the State has submitted evidence tending to demonstrate that

Yeldon did not submit a notice of appeal in compliance with Rule 4(c) on or before February 23, 2017.

        On the current record, we cannot determine whether Yeldon’s notice of appeal was in fact

timely filed under Rule 4(c). We note that Yeldon did not affirm that he had submitted the notice

postage prepaid. See Fed. R. App. P. 4(c)(1)(A)(i). Nonetheless, we exercise our discretion to allow

Yeldon to submit a declaration or notarized statement satisfying Rule 4(c). See Fed. R. App. P.

4(c)(1)(B). Still, assuming Yeldon can in good faith satisfy the requirements of Rule 4(c), a factual

dispute exists as to whether his notice was timely.

        Accordingly, we remand pursuant to the procedure set out in United States v. Jacobson, 15 F.3d

19, 22 (2d Cir. 1994), for the district court to supplement the record and make factual findings

concerning the timeliness of Yeldon’s notice of appeal under Rule 4(c). For the purposes of this


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remand, we leave to the discretion of the district court whether these findings can be made based on

submissions by the parties or whether a hearing is necessary. This remand is limited to the issue of

the timeliness of Yeldon’s notice of appeal under Rule 4(c), and we express no opinion on Yeldon’s

alternative theory that his appeal is timely under Federal Rule of Civil Procedure 41, on the merits of

his challenges, or on the State’s request to supplement the record on appeal.

          The mandate shall issue forthwith. This appeal will be reinstated, without need for a new

notice of appeal, upon notice by either side to the Clerk of Court within fourteen (14) days of the

district court’s decision. If that occurs, the matter shall be referred to this panel for disposition of the

appeal.

          Accordingly, the matter is REMANDED for supplementation of the record and additional

factfinding consistent with this order.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, Clerk of Court




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