11-4481-cv
Pierce v. Woldenberg

                   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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28th day of September, two thousand twelve.

PRESENT:    CHESTER J. STRAUB,
            ROBERT D. SACK,
            DENNY CHIN,
                            Circuit Judges.

- - - - - - - - - - - - - - - - - - - -x

SAMUEL PIERCE,
          Plaintiff-Appellant,

            -v.-                                      11-4481-cv

RONA WOLDENBERG, M.D.,
          Defendant-Appellee.

- - - - - - - - - - - - - - - - - - - -x

FOR PLAINTIFF-APPELLANT:            SAMUEL PIERCE, pro se,
                                    Philadelphia, Pennsylvania.

FOR DEFENDANT-APPELLEE:             HOWARD Z. ROBBINS (Brian J.
                                    Gershengorn, on the brief),
                                    Proskauer Rose LLP, New York, New
                                    York.

            Appeal from an order of the United States District

Court for the Eastern District of New York (Feuerstein, J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the appeal is DISMISSED.
             Plaintiff-appellant Samuel Pierce, pro se, appeals from

the district court's October 6, 2011, order, denying his motion

for a preliminary injunction against defendant-appellee Rona

Woldenberg, Assistant Dean for Admissions at Hofstra North Shore-

LIJ School of Medicine at Hofstra University ("Hofstra").     We

assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues presented for

review.

           In 2010, Pierce applied for admission to several

medical schools, including Hofstra.    Each of his applications was

denied.   On August 4, 2011, Pierce sued Woldenberg in the United

States District Court for the Central District of California.      On

August 19, 2011, Pierce moved for a preliminary injunction

ordering his admission into Hofstra's medical program.    On August

29, 2011, the action was transferred to the United States

District Court for the Eastern District of New York.    On October

6, 2011, the district court denied Pierce's motion for a

preliminary injunction.    On October 11, 2011, Pierce filed an

interlocutory appeal from the district court's October 6, 2011,

order.    Notice of Appeal, Pierce v. Woldenberg, No. 11-cv-04248
(SJF) (AKT) (E.D.N.Y. Oct. 11, 2011), ECF Doc. No. 45.

           On November 7, 2011, while the appeal was pending,

defendants moved in the district court for judgment on the

pleadings.    On August 7, 2012, the district court granted

defendant's motion for judgment on the pleadings, and on August

9, 2012, it entered judgment dismissing the complaint.    On August


                                 -2-
23, 2012, Pierce moved in the district court for an extension of

time to file his notice of appeal from the district court's

August 9, 2012, judgment -- from September 6, 2012, until "at

least" October 25, 2012, or "indefinitely" -- "to fully preserve

all rights to a second, entirely separate appeal, should it be

necessary."    Letter Mot., Pierce v. Woldenberg, No. 11-cv-04248

(SJF) (AKT) (E.D.N.Y. Aug. 23, 2012), ECF Doc. No. 53.   On August

27, 2012, the district court denied Pierce's motion "because

plaintiff [had] failed to make a showing of excusable neglect or

good cause."   Order, Pierce v. Woldenberg, No. 11-cv-04248 (SJF)
(AKT) (E.D.N.Y. Aug. 27, 2012), ECF Doc. No. 54.   Pierce never

appealed from the district court's August 9, 2012, judgment, or

from the August 27, 2012, order.

          In these circumstances, because Pierce did not appeal

from the district court's August 9, 2012, judgment, or August 27,

2012, order, and because Pierce's complaint has been dismissed

and the merits decided against him, his request for preliminary

relief is moot.   See Jennifer Matthew Nursing & Rehab. Ctr. v.
U.S. Dep't of Health & Human Servs., 607 F.3d 951, 956 (2d Cir.

2010) ("An appeal becomes moot when the issues presented are no

longer live or the parties lack a legally cognizable interest in

the outcome." (internal quotation marks omitted)); Ruby v. Pan

Am. World Airways, Inc., 360 F.2d 691, 691-92 (2d Cir. 1966) (per

curiam) (dismissing appeal from denial of preliminary injunction

as moot where underlying complaint was dismissed).   The purpose

of a preliminary injunction is to provide relief temporarily


                                 -3-
pending resolution of a case on the merits.   See Irish Lesbian &

Gay Org. v. Giuliani, 143 F.3d 638, 645 (2d Cir. 1998) ("The

purpose of a preliminary injunction is merely to preserve the

relative positions of the parties until a trial on the merits can

be held." (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395

(1981))).   Here, as the merits have already been decided against

him, Pierce's appeal from the denial of his motion for

preliminary relief is moot.

            In any event, even assuming the request for injunctive

relief is not moot, the district court did not err in denying

Pierce's motion for a preliminary injunction because Pierce

failed to establish his likelihood of success on the merits or a

sufficiently serious question as to the merits of the case.     See
Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011).

We also conclude, for largely the same reasons, that any appeal

taken from the dismissal of his complaint would have been

similarly without merit.   Accordingly, we hereby DISMISS the

appeal.

                           FOR THE COURT:
                           CATHERINE O'HAGAN WOLFE, CLERK




                                 -4-
