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United States Court of Appeals, Second Circuit.

Willie James YELDON, Plaintiff-Appellant, v. 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.

No. 17-639-cv

Decided: March 18, 2019

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


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.

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 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.

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