16-3725
Cherry v. New York City Department of Correction
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 5th day of October, two thousand seventeen.
PRESENT:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
_________________________________________
Bernard Cherry,
Plaintiff-Appellant,
v. 16-3725
New York City Department of Correction, Eric
Yuen, Attorney-Trials and Litigation Division,
Defendants-Appellees.
_________________________________________
FOR PLAINTIFF-APPELLANT: Bernard Cherry, pro se, Bronx, NY.
FOR DEFENDANTS-APPELLEES: No appearance.
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Bernard Cherry (“Cherry”), proceeding pro se, appeals from a judgment sua
sponte dismissing his complaint against his former employer, the New York City Department of
Correction (“DOC”), and a DOC attorney. Cherry was fired in 2007 after an administrative law
judge at the Office of Administrative Trials and Hearings (“OATH”) found him guilty of
excessive absenteeism and failure to comply with orders. The Appellate Division affirmed. In
2008, Cherry sued the City, DOC, and several officials, asserting claims for employment
discrimination. The district court dismissed that case on timeliness grounds, and we affirmed. In
2016, Cherry filed this action under Federal Rules of Civil Procedure 60(d)(1) and (3), alleging
that the defendants committed fraud on the court by submitting forged documents during the
OATH hearing. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
The district court interpreted Cherry’s complaint as a request to vacate the judgment in
Cherry’s employment discrimination suit. On appeal, however, Cherry clarifies that he was
actually asking the district court to vacate the OATH decision. See Br. of Appellant Bernard
Cherry at 4–5 (“[Judge Cogan] believes that I wanted him to vacate his ruling in his [2008]
decision against me. In my complaint, I asked the Court to vacate the (OATH) decision . . .
because fraud on the court was and still is present in that decision.”) (emphasis added). Although
we must construe pro se complaints “liberally and interpret them ‘to raise the strongest
arguments that they suggest,’” Kirkland v. Cablevision Systems, 760 F.3d 223, 224 (2d Cir.
2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), Cherry
explicitly states that he was requesting the district court to vacate the judgment of the state
administrative law judge. Accordingly, we affirm the district court’s dismissal on the grounds of
lack of subject matter jurisdiction.
A plaintiff bears the burden of establishing subject matter jurisdiction over his own claims.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). It is apparent from the face of
Cherry’s complaint that there is no diversity jurisdiction under 28 U.S.C. § 1332. It is also apparent
that there is no federal question jurisdiction under 28 U.S.C. § 1331. Cherry cites no relevant
federal statute in his complaint or in his brief on appeal. Cherry does cite Federal Rules of Civil
Procedure 60(d)(1) and (3), but it is well-settled that the Federal Rules of Civil Procedure “do not
provide an independent ground for subject matter jurisdiction over an action for which there is
no other basis for jurisdiction.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2d Cir.
1990). Nor would Cherry’s complaint survive if we construed it as alleging a claim under 42
U.S.C. § 1983, since he filed this suit after the relevant three-year statute of limitations elapsed.
See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). Finally, the district court
correctly refused to exercise ancillary jurisdiction over Cherry’s claims, since Cherry is seeking
relief from judgment in a different tribunal than the one that handed down the judgment, and there
is no independent ground for jurisdiction. See 11 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: Civil § 2868 (3d ed. 1998); see also United States v. Beggerly,
524 U.S. 38, 46 (1998) (noting that “an independent action brought in the same court as the
original lawsuit” does not “require[] an independent basis for jurisdiction”) (emphasis added).
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We have considered Cherry’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the district court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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