SANDRA ELLIOTT, individuаlly and as the adminstratrix of the Estate of Asher Tamara Glace, v. CITY OF HARTFORD, CHRISTOPHER MORANO, individually and in his official capacity as Chief State’s Attorney of the State of Connecticut, KEVIN KANE, individually and in his official capacity as Chief State’s Attоrney of the State of Connecticut, PATRICK HARNETT, individually and in his official capacity as Chief of Police of the City of Hartford
14-3633-cv
United States Court of Appeals, Second Circuit
Decided: May 19, 2016
Elliott v. City of Hartford
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
August Term, 2015
(Submitted: January 5, 2016 Decided: May 19, 2016)
Docket No. 14-3633-cv
____________________
SANDRA ELLIOTT, individually and as the adminstratrix of the Estate of Asher
Tamara Glace,
Plaintiff-Appellant,
v.
CITY OF HARTFORD, CHRISTOPHER MORANO, individually and in his
official capacity as Chief State’s Attorney of the State of Connecticut, KEVIN
KANE, individually and in his official capacity as Chief State’s Attorney of the
State of Connecticut, PATRICK HARNETT, individually and in his official
capacity as Chief of Police of the City of Hartford,
Defendants-Appellees,
STATE OF CONNECTICUT, DARYL ROBERTS, individually and in his official
capacity as Chief of Police of the City of Hartford,
Defendants.1
Before: POOLER, HALL, CARNEY, Circuit Judges.
Appeal from the United States District Court for the District of Connecticut
(Thompson, J.), granting defendants’ motions for summary judgment. We hold
that, in the absence of prejudice to an appellee, we read a pro se appellant’s
appeal from an order closing the case as constituting an appeal from all prior
orders. In an accompanying summary order, we affirm the district court’s grant
of summary judgment.
Affirmed.
____________________
SANDRA ELLIOTT, Hartford, CT, pro se Plaintiff-
Appellant.
JONATHAN H. BEAMON, Senior Assistant
Corporation Counsel, Hartford, CT, for Defendants-
Appellees City of Hartford and Patrick Harnett.
ZENOBIA G. GRAHAM-DAYS, Assistant Attorney
General (Terrence M. O’Neill, on the brief), for George
Jepsen, Attorney General of the State of Connecticut,
Hartford, CT, for Defendants-Appellees Christopher Morano
and Kevin Kane.
Appeal from the United States District Court for the District of Connecticut
(Thompson, J.), granting defendants’ motions for summary judgment. We hold
that, in the absence of prejudice to an appellee, we read a pro se appellant’s
appeal from an order closing the case as constituting an appeal from all prior
orders. In an accompanying summary order, we affirm the district court’s grant
of summary judgment.
BACKGROUND
This case arises out of a true tragedy. As recounted by the distriсt court, on
February 14, 2005, Asher Glace, plaintiff-appellant Sandra Elliott’s daughter,
witnessed the murder of O’Neil Robinson at the Cleveland Café, a nightclub in
Hartford; Robinson was shot to death. The Hartford Police Department
rеsponded to the scene. Glace was the only witness who came forward. The
Hartford Police Department took her into custody and transported her to police
headquarters for further questioning. Glаce gave a voluntary statement, giving
the names of the victim and of the persons involved in the murder. She identified
the shooter as Anthony Thompson, and stated that she had known him for two-
was arrested, and was extradited to Connecticut around May 2005. While
Thompson was incarcerated, two inmates disclosed to the Hartford Police
Department and a state’s attorney that Glace’s life was in danger because she
planned to testify at Thompson’s upcoming trial. On June 16, 2007,
approximately two months before the trial was set to begin, Glace was shot and
killed in her driveway.
Elliott, represented by counsel before the district court, filed a complaint
on June 16, 2009 bringing claims related to her daughter’s death. She filed an
amended complaint on November 12, 2009. On May 17, 2010, the district court
dismissed the complaint and amended complaint without prejudice, with leave
to re-plead within 30 days. Elliott filed a second amended complaint on June 16,
2010. On January 26, 2012, Elliott filed a motion for leave to amend the
complaint. Elliott stated that the “proposed amendment clarifies and narrows the
allegations.” Dist. Ct. Dkt. 3:09-CV-00948, ECF No. 49, at 1. Attached to the
motion was a proposed third amended complaint. On August 10, 2012, the
former Chief Patrick Harnett as a defendant.” Dist. Ct. ECF No. 69, at 12.
Defendants filed motions for summary judgment on October 31, 2012. The
district court ruled on the pending motions for summary judgment in a pair of
orders issued on Septеmber 30, 2013, one of which addressed the summary
judgment motion made by Christopher Morano and Kevin Kane (the “State
defendants”), and the other of which addressed the summary judgment motion
made by Patrick Harnett, Daryl Roberts, and the City оf Hartford (the “City
defendants”). In one order, the district court granted the State defendants
summary judgment. In the other, the district court granted the City defendants
summary judgment on one claim, the substantive due process claim, but it
denied without prejudice their motion for summary judgment on the other claim,
the supervisory liability claim against Harnett. On November 20, 2013, the City
defendants filed a renewed motion for summary judgment on the supervisory
liability claim raised against Hаrnett, which the district court granted on August
22, 2014. The August 22, 2014 order stated that the “Clerk shall close this case.”
That notice states:
Notice is hereby given that Sandra Elliot, and as administratrix of
the Estate, (plaintiffs) (defendants) in the above-named case, hereby
appeal to the United States Court of Appeals for the SECOND
Circuit (from the final judgment) (from an order (describing it))
entered in this action on the 22 day of August, [] 2014.
Dist. Ct. ECF No. 99 (footnote omitted). Five days later, on September 25, 2014,
the district court’s Clerk of Court issued judgment in favor of defendants. Elliott
did not seek to amend the notice of appeal. However, Elliott’s brief on appeal
challenges rulings made by the district court in its September 30, 2013 orders, in
addition to its August 22, 2014 order.
DISCUSSION
In this opinion, we consider whether Elliott’s notice of appeal grants us
jurisdiction over the September 30, 2013 orders, in addition to the August 22,
2014 order, and we conclude that it does.
A notice of appeal must “designate the judgment, order, or part thereof
being appealed.”
Gonzalez v. Thaler, 132 S. Ct. 641, 651-52 (2012). However, “it is well settled that
Village of Mount Kisco, 750 F.2d 205, 211 (2d Cir. 1984). Further, “a notice of
appeal filed by a pro se litigant must be viewed liberally, and not every technical
defect in a notice of appeal constitutes a jurisdictional defeсt.” Grune v. Coughlin,
913 F.2d 41, 43 (2d Cir. 1990) (citations omitted). “Our task,” therefore, “is to
interpret the notice of appeal so as to remain faithful to the intent of the
appellant, fair to the appellee, and consistent with the jurisdictionаl authority of
this court.” Conway, 750 F.2d at 211. Accordingly, “[a]s long as the pro se party’s
notice of appeal evinces an intent to appeal an order or judgment of the district
court and appellee has not been prejudiced or misled by the notice, the notiсe’s
technical deficiencies will not bar appellate jurisdiction.” Grune, 913 F.2d at 43.
Keeping in mind this background, we hold that, in the absence of
prejudice to an appellee, we read a pro se appellant’s appeal from an order
closing the case as constituting an appeal from all prior orders. Such a reading
flows naturally from our precedent. In Phelps v. Kapnolas, 123 F.3d 91 (2d Cir.
1997), our Court considered the effects of a pro se appellant mеrely listing the
date of the final judgment in his notice of appeal. There, the district court issued
district court issued a separate order оn January 29, 1996, granting the remaining
defendant’s motion to dismiss. Id. at 92-93. We held that it was not “crucial” that
the appellant’s “pro se notice of appeal [did] not specify either of the orders,” and
“infer[red] from the appeal of the final judgment that [the appellant] meаn[t] to
contest the earlier dismissal against the five defendants, as well as the dismissal
against [the final defendant].” Id. at 93.
Conway is also instructive. There, the notice of appeal was filed by former
counsel on April 21, 1983, and stated that an appeal was “being taken from ‘an
Order dated March 14, 1983, granting defendant Martabanos’s Motion to Dismiss
Plaintiff’s Complaint . . . and from each and every part of said order.’” 750 F.2d at
211. A prior district court order, dated January 7, 1983, granted the motion to
dismiss made by another defendant, Cerbone. Id. The January 7, 1983 order
“could not be appealed until the district court disposed of the remaining claims
against the remaining parties,” absent a certification pursuant to Federal Rule of
Civil Procedure 54(b), which was never made. Id. But the notice of appeal did not
mention the January 17, 1983 order, only the March 14, 1983 order. Id. Observing
Court held that “this omission is of no consequence.” Id. We concluded:
[W]e should review the dismissal of the claims against Cerbone. The
order dated March 14, 1983, dismissed the complaint “in all
respects.” It is perfectly clear that [the plаintiff] had no desire to
abandon the adverse disposition of her claims against Cerbone. . . .
[H]er notice of appeal reflects the intent to appeal all adversely
determined dispositions from which an appeal could lawfully be
taken at the time her notice of appeal was filed.
Id. at 211-12 (footnote omitted). In support of the proposition that the appellant
“had no desire to abandon the adverse disposition of her claims against
Cerbone,” id. at 211, we notеd that this was “manifest not only on inspection of
her brief on appeal but her trial-court post-judgment supplemental affidavit
dated September 2, 1983,” id. at 211 n.10.
So it is here. The first September 30, 2013 order addressed the motion for
summary judgment by the City defendants, and granted the motion in part and
denied it in part, without prejudice. The second September 30, 2013 order
granted the motion for summary judgment by the State defendants. The August
22, 2014 order granted the City defendants’ renewed motion for summary
judgment. Because claims remained against the City defendants, Elliott was
of the August 22, 2014 order, which granted defendants summary judgment on
the remaining claims and ordered the Clerk to “close this case.” Dist. Ct. ECF No.
97, at 19. It is further evident from Elliott’s brief that she intended to appeal
rulings in the September 30, 2013 orders, in addition to the August 22, 2014
order, as she challenges numerous rulings made by the district court in its
September 30 orders.
Finally, there is no indication that any appellee is prejudiced by our broad
reading of the notice of appeal. All defendants-appellees filed briefs defending
the merits of the district court’s September 30, 2013 and August 22, 2014 orders.
Indeed, no defendant argued that we are precluded from reviewing the
September 30, 2013 orders. We therefore hold that we have jurisdiction over
Elliott’s appeal frоm the September 30, 2013 orders, in addition to the August 22,
2014 order. See Foman v. Davis, 371 U.S. 178, 181 (1962) (holding that a defective
notice of appeal “did not mislead or prejudice the respondent” because
“petitioner’s intention to seek review of” both orders was “manifest,” in
pаrticular because “both parties brief[ed] and argue[d] the merits of the earlier
2004) (excusing defective notice of appeal because the pro se appellant’s “intent
to appeal” an issue in an order not mentioned in the notice of appeal “is clear,
and the government does not argue that it was prejudiced or surprised by any
defects in [the appellant’s] notice of appeal”); Action House Inc. v. Koolik, 54 F.3d
1009, 1013 n.2 (2d Cir. 1995) (“Because both parties seem to have understоod [the
appellant’s] notice of appeal to embrace the implicit denial of its motion for a
new trial, and, liberally interpreted, the notice of appeal may fairly be said to do
so, we conclude that [the appellant’s] challenges to the jury instructions are
properly before us.”).
CONCLUSION
For the foregoing reason, we hold that we have jurisdiction over all three
of the district court’s rulings on defendants’ summary judgment motions. Fоr the
reasons stated in the accompanying summary order, the district court’s grant of
summary judgment in favor of defendants-appellees is AFFIRMED.