    17-1807
    Amaker v. Annucci


                             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 ASUMMARY 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 9th day of May, two thousand eighteen.

    PRESENT:
                JOHN M. WALKER, JR.,
                DENNIS JACOBS,
                      Circuit Judges,
                MICHAEL P. SHEA,*
                      District Judge.
    _____________________________________

    Anthony D. Amaker,
                              Plaintiff-Appellant,

    Batise D. Amaker, Grace D. Amaker,
                       Plaintiffs,

                        v.                                                      17-1807

    Anthony J. Annucci, Jeffrey McCoy,
    William A. Lee, Luis Franco, Sargeant Conforti,
                         Defendants-Appellees.
    _____________________________________



    * Judge Michael P. Shea, United States District Court for the District of Connecticut, sitting by
    designation.

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FOR PLAINTIFF-APPELLANT:                        Anthony D. Amaker, pro se, Gouverneur, NY.

FOR DEFENDANTS-APPELLEES:                       Mark H. Shawhan, Assistant Solicitor General,
                                                (Anisha S. Dasgupta, Deputy Solicitor General,
                                                and Barbara D. Underwood, Solicitor General,
                                                on the brief) for Eric T. Schneiderman, Attorney
                                                General of the State of New York, New York,
                                                NY.


     Appeal from a judgment of the United States District Court for the Southern District of
New York (Karas, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

         Anthony Amaker, along with his mother, Grace, and his brother, Batise, have sued
numerous corrections officials under 42 U.S.C. § 1983 after Grace and Batise visited Amaker in
prison. They alleged: that the defendants intentionally shortened the visit, in violation of
Amaker’s First Amendment right of familial association, by forcing Grace and Batise to have
their photographs taken before entering the prison; that the defendants violated Grace’s and
Batise’s Fourth Amendment rights by requiring them to have their photographs taken; and that
the defendants retaliated against Amaker, in violation of the First Amendment, for his prior
lawsuit and grievances by shortening the visit as well as by confiscating a package of cakes that
his visitors had brought for him. The district court dismissed the complaint, revoked Amaker’s
in forma pauperis (“IFP”) status, and denied a request for reconsideration. Amaker, pro se,
appeals. Grace and Batise did not sign the notice of appeal or Amaker’s brief, and they have not
submitted their own briefs; accordingly, the only arguments before us are those raised by
Amaker in his brief on his own behalf. We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for review.

        1. As a threshold matter, we have jurisdiction to review the order dismissing Amaker’s
complaint and revoking his IFP status, even though Amaker’s notice of appeal identified only the
denial of his motion for reconsideration. An appeal from the denial of a timely reconsideration
motion suffices to bring up for review the underlying judgment. “R” Best Produce, Inc. v.
DiSapio, 540 F.3d 115, 121-22 (2d Cir. 2008). Amaker filed his reconsideration motion beyond
the 28-day limit, but within the extensions of time granted to him by the district court. While
Fed. R. Civ. P. 6(b) prohibits district courts from granting extensions for reconsideration
motions, the rule is non-jurisdictional and may be waived. See Legg v. Ulster Cty., 820 F.3d 67,
79 (2d Cir. 2016). The defendants have waived any timeliness challenge by failing to object to
the extensions below.



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        Nor is our jurisdiction to review the dismissal order impaired by the district court’s grant
of leave to amend. Although the court granted Amaker leave to amend his complaint, he elected
to move for reconsideration, reiterating the claims in his original complaint. The district court
denied that motion and granted Amaker an additional 30 days to file an amended complaint, as
well as a subsequent 30-day extension of time to amend. Amaker again did not amend, but
appealed from the denial of his request for reconsideration.

       This Court has appellate jurisdiction over “final decisions.” 28 U.S.C. § 1291. The
dismissal of a complaint with leave to amend is not ordinarily a final decision; however it may
be considered final if the deadline to amend has passed. See Festa v. Local 3 Int’l Bhd. of Elec.
Workers, 905 F.2d 35, 36-37 (2d Cir. 1990) (per curiam). Amaker’s liberally extended deadline
to amend has passed. The dismissal of Amaker’s complaint is therefore final and appealable.

        2. We review the district court’s dismissal of the complaint de novo. Biro v. Condé
Nast, 807 F.3d 541, 544 (2d Cir. 2015). The district court properly dismissed Amaker’s familial
association claim. A practice that curtails a prisoner’s right to familial association passes
constitutional muster if it “bear[s] a rational relation to [a] legitimate penological interest[].”
Overton v. Bazzetta, 539 U.S. 126, 132 (2003). “The burden . . . is not on the State to prove the
validity of [a] prison [practice] but on the prisoner to disprove it.” Id.

         Amaker fails to plausibly allege that the prison’s practice of photographing visitors
before allowing them to enter the facility lacks a rational relation to a legitimate penological
interest. His allegation that the practice is per se irrational because it is not required by the New
York State Department of Corrections and Community Supervision (“DOCCS”) regulations is
unavailing. He does not plausibly allege that the DOCCS regulations prohibit such a practice.
The regulations provide that “[u]pon entering any gate area, identification of persons, other than
facility employees, shall be properly determined and recorded,” and the regulations do not
purport to limit the authority of DOCCS officials to determine the “proper[]” method of
“record[ing]” visitors’ identities. 7 N.Y.C.R.R. § 200.1(b). In any event, the violation of a
state regulation alone does not give rise to a cognizable § 1983 claim. Doe v. Conn. Dep’t of
Child & Youth Servs., 911 F.2d 868, 869 (2d Cir. 1990). Accordingly, Amaker fails to state a
claim that the prison’s photographing practice violates his rights under the First Amendment.

         As to the claim that photographing visitors violates their Fourth Amendment rights,
Amaker lacks standing to appeal the district court’s dismissal. Grace and Batise have not joined
in this appeal in any capacity, and “Fourth Amendment rights are personal rights which . . . may
not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (internal quotation
marks omitted); United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002). Moreover, as a pro se
litigant, Amaker is barred from appearing on behalf of Grace and Batise. See Iannaccone v.
Law, 142 F. 3d 553, 558 (2d Cir. 1998). Therefore, the dismissal of that claim is not properly
before us, and the time for Grace or Batise to appeal it has lapsed.



                                                  3
        Finally, Amaker fails to plausibly state a claim of First Amendment retaliation. To state
such a claim, a plaintiff must allege that (1) he engaged in protected speech or conduct, (2) “the
defendant took adverse action against [him], and (3) [] there was a causal connection between the
protected speech and the adverse action.” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)
(internal quotation marks omitted). An adverse action is “conduct that would deter a similarly
situated individual of ordinary firmness from exercising his or her constitutional rights.” Davis
v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation marks omitted). Amaker alleged
that prison officials took adverse action against him by forcing his visitors to have their
photographs taken (so as to shorten the length of the visit) and by confiscating the package of
cakes that his visitors had brought for him. These allegations do not describe a sufficiently
adverse action.

        Existing regulations subject prisoners to restrictions on the kinds of packages they may
receive, limit the length of visits, and require visitors to undergo registration and identification
before the visit. See 7 N.Y.C.R.R. §§ 200.1(b), 201.2(b), 201.3(e). Nothing in the complaint
suggests that prison officials acted outside the bounds of these regulations and subjected Amaker
to harsher treatment than what “prisoners may be required to tolerate . . . before a retaliatory
action taken against them is considered adverse.” Davis, 320 F.3d at 353 (internal quotation
marks and brackets omitted). Considering the “circumstances” in which the alleged events
occurred, Amaker’s allegations are insufficient to state a claim. Id. (internal quotation marks
omitted).

        3. We review the district court’s decision to deny reconsideration for abuse of discretion.
Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). The motion
for reconsideration merely reiterated earlier arguments without “point[ing] to controlling
decisions or data that the court overlooked.” Id. (internal quotation marks omitted). The court
therefore acted within its discretion when it denied the motion.

       4. “We review de novo [the] district court's conclusion that [Amaker] is barred from
proceeding IFP by the [Prison Litigation Reform Act’s] three strikes provision.” Jones v. Smith,
720 F.3d 142, 145 (2d Cir. 2013). We find no error.

        The three strikes provision provides that a prisoner may not “bring a civil action or
appeal a judgment in a civil action [in forma pauperis] . . . if the prisoner has, on 3 or more prior
occasions, while incarcerated . . . brought an action or appeal . . . that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915(g). It is undisputed that two of Amaker’s prior appeals were dismissed as
frivolous and therefore constitute “strikes” under this rule. Amaker argues that the district court
erred in concluding that two 1996 lawsuits he filed can be deemed strikes because the docket
sheets for those suits did not disclose that they were dismissed for one of the sanctioned reasons.
See Harris v. City of New York, 607 F.3d 18, 23 (2d Cir. 2010) (“The district court may rely on
the relevant docket sheets if they indicate with sufficient clarity [why] the prior suits were
dismissed.”). This argument fails.

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        Several aspects of the relevant docket sheet indicate that the McDonnell suit was
dismissed as frivolous. The suit was dismissed sua sponte pursuant to a provision that at that
time authorized district courts to dismiss IFP actions only if they were frivolous or malicious, or
if they contained untrue allegations of poverty. See 28 U.S.C. § 1915(d) (1995). The court
certified that an appeal from the dismissal would not be taken in good faith. The suit was
dismissed the same day it was filed, likely before an allegation of poverty could have been
definitively assessed and found wanting; and it is not Amaker’s contention that the suit was
dismissed because it contained untrue allegations of poverty. Given this record, the district
court properly determined that the McDonnell suit constituted a third “strike” under the three
strikes provision and revoked Amaker’s IFP status. Since three strikes are enough, we need not
consider whether the Connelly suit was also dismissed as frivolous and therefore worthy of a
fourth strike.

      We have considered Amaker’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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