17-3991 Brown v. Signorella

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 March, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, AMALYA L. KEARSE, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

Tyreen Brown,

Plaintiff-Appellant,

v. 17-3991

Mario Signorella, Sergeant, Elmira Correctional Facility,

Defendant-Appellee,

DePaul, Lieutenant, Elmira Correctional Facility, Elmira Staff Unknown, Correctional Officers, Elmira Correctional Facility,

Defendants. _____________________________________ FOR PLAINTIFF-APPELLANT: Tyreen Brown, pro se, Stormville, NY.

FOR DEFENDANT-APPELLEE: Frank Brady (Barbara D. Underwood, Victor Paladino, on the brief), for Letitia James, Attorney General of the State of New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Western District of New

York (Wolford, J.).

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

DECREED that this appeal from the judgment of the district court is DISMISSED WITH

PREJUDICE, and appellant’s motion for a “stipulation to withdraw with prejudice” is DENIED.

Appellant Tyreen Brown, proceeding pro se, appeals the district court’s judgment,

following a jury trial, dismissing his

amended complaint against Elmira

Correctional Facility Sergeant Mario Signorella alleging use of excessive force in violation of the

Eighth Amendment. Although Brown raises various issues on appeal concerning alleged errors

made during the jury trial, he has not provided this Court with the trial transcripts. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

Under Federal Rule of Appellate Procedure 10(a), any transcripts of district court

proceedings constitute part of the record on appeal. Fed. R. App. P. 10(a)(2). Within 14 days

after filing a notice of appeal, an appellant must either (1) order from the reporter transcripts from

any proceedings that he considers necessary to the appeal; or (2) file a certificate stating that no

2 transcripts will be ordered. Fed. R. App. P. 10(b)(1).

Brown repeatedly moved in the district court for free transcripts. His motions were each

denied because he did not “even attempt to set forth any reason that would amount to a ‘substantial

question’ warranting the preparation of the trial transcript.” Brown v. Signorella, Case No. 6:14-

cv-06139 (EAW) (MWP), ECF No. 68 (Order) at 2, ECF No. 71 (Order) at 4; see

(f).

Likewise, Brown moved for free transcripts in this Court. His motion was denied without

prejudice because he identified neither the relevant facts nor the likely merits of the issues he

intended to raise on appeal. We provided Brown three options for proceeding with his appeal: (1)

submit proof that he had ordered the transcript and had arranged to pay the court reporter; (2) file

a statement indicating that he would not request a transcript, explaining why this should not result

in his appeal being dismissed, and listing the issues he planned to argue that did not require a

transcript; or (3) file a new motion for transcripts in this Court that includes a statement of the

relevant facts and likely merits of the issues he plans to raise on appeal. He was warned that

failure to pursue one of these options would result in dismissal of his appeal with prejudice.

Wrighten v. Glowski,

(2d Cir. 2000).

In response, Brown listed in cursory fashion his issues on appeal as: (1) improper

impeachment at trial; (2) denial of due process, presumably at trial; (3) the merits of his excessive

force claim as determined at trial; and (4) jury bias. He indicated that he would not request

transcripts because everything he would raise in his brief was “on the record.” Case No. 17-3991,

ECF No. 51 (Letter). He did not explain why the fact that he would not request transcripts should

3 not result in his appeal being dismissed. Nor did he explain whether the issues he intended to

raise on appeal required transcripts to evaluate. We nonetheless ordered that the appeal proceed

to briefing and Brown filed his appellate brief raising those issues.

Although we informed Brown of his responsibilities under Federal Rule of Appellate

Procedure 10 and he had repeated opportunities both in the district court and this Court to cure the

deficiencies in his motions for free transcripts or otherwise obtain them, he has not done so. We

are unable to meaningfully evaluate the issues Brown raises in his brief because they require

review of the trial proceedings and without a record in this case the Court is deprived of the ability

to conduct meaningful appellate review.

Accordingly, Brown’s appeal is DISMISSED WITH PREJUDICE. In addition,

Brown’s motion for a “stipulation to withdraw with prejudice,” dated February 10, 2020, is

DENIED because it appears to be conditioned on the existence of a settlement, and the record

does not indicate that a settlement has been reached in this case.

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

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