     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 th day of November, two thousand                  nine.
 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
19       ALTON HOLMES and CATHERINE DUNCAN, **
20
21                Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X


                *
               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
 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

                                  2
 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.

                                  3
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:___________________________




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