14-865
     Thomas v. Toporek

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                              Circuit Judges,
 9                GREGORY H. WOODS,*
10                              District Judge.
11
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13       TIMOTHY THOMAS,
14                Plaintiff-Appellant,
15
16                    -v.-                                               14-865
17
18       DIANE TOPOREK, ROSALYN KILLINGER, CARL
19       J. KOENIGSMANN,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
               Judge Gregory H. Woods, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             Timothy Thomas, pro se, Alden,
 2                              New York.
 3
 4   FOR APPELLEES:             Barbara D. Underwood, Andrew B.
 5                              Ayers, Zainab A. Chaudhry, for
 6                              Eric T. Schneiderman, Attorney
 7                              General of the State of New
 8                              York, Albany, New York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Western District of New York (Telesca, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   VACATED and REMANDED.
16
17        Timothy Thomas appeals from the judgment of the United
18   States District Court for the Western District of New York
19   (Telesca, J.), granting defendants’ motion to dismiss
20   pursuant to Federal Rule of Civil Procedure 12(b)(6). We
21   assume the parties’ familiarity with the underlying facts,
22   the procedural history, and the issues presented for review.
23
24        Thomas, an inmate at the Wende Correctional Facility,
25   sued three defendants employed by the New York State
26   Department of Corrections and Community Supervision pursuant
27   to 42 U.S.C. § 1983. His pro se complaint alleges that
28   defendants were deliberately indifferent to his medical
29   needs in violation of the Eighth Amendment. On March 6,
30   2014, the district court granted defendants’ motion to
31   dismiss pursuant to Rule 12(b)(6). Thomas appeals from that
32   dismissal.
33
34        Thomas’s appellate brief and an unusual notation on the
35   district court’s docket (see App. at 5, no. 12) reflect the
36   likelihood that Thomas never received a copy of the district
37   court’s March 6, 2014 Decision and Order. In this unique
38   case, in order to ensure that Thomas has a full and fair
39   opportunity to challenge the merits of the district court’s
40   decision, remand is warranted.
41
42        We hereby VACATE and REMAND the judgment of the
43   district court. On remand, the district court may issue a
44   decision that is identical to its March 6, 2014 decision if

                                  2
1   it wishes. The district court, however, must ensure
2   delivery of all relevant documents to Thomas. If Thomas
3   files another notice of appeal in this matter, he should
4   attach a copy of this order, and the Clerk of Court is
5   directed to waive the filing fee.
6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK
9




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