Thomas MURPHY, Plaintiff-Appellant, v. Calvin WEST, as Superintendent of Elmira Correctional Facility of the New York State Department of Correctional Services, et al., Defendants-Appellees, 532 F. App'x 20

SUMMARY ORDER Plaintiff-Appellant Thomas Murphy (“Murphy”) appeals from the judgment of the district court entered on November 8, 2012, after trial and a jury verdict in defendants’ favor on Murphy’s claims that defendants violated his civil rights by using excessive force on him and denying him medical care while he was incarcerated. We assume the parties’ familiarity with the underlying facts and procedural history of the case. After filing his notice of appeal from the judgment on November 14, 2012, Murphy moved before the district court under Fed.

R.Civ.P. 59 for a new trial and under Fed.R.Civ.P. 65 for a preliminary injunction. The district court denied Murphy’s motions by order dated November 26, 2012. Murphy challenges the district court’s denial of his Rule 59 and Rule 65 motions and asks this Court to abrogate certain of its precedents. Pursuant to Fed. R.App. P. 3(

c) a notice of appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R.App. P. (3)(c)(l)(B). This Court’s jurisdiction “depends on whether the intent to appeal [the] decision [at issue] is clear on the face of, or can be inferred from, the notices of appeal.” New Phone Co., v. City of New York, 498 F.3d 127, 131 (2d Cir.2007); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995) (stating that, where a notice of appeal “fail[s] to mention” a specific order, we are “bar[red] ... from considering” an appellate challenge to that order).

Because the requirements outlined in Fed R.App. P. 3 and 4 are. jurisdictional in nature, they cannot be waived. See City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 452 (2d Cir.2008) (“Rules 3 and 4 are a single jurisdictional threshold and may not be waived.”), overruled on other grounds by Hemi Grp., LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010).

Murphy failed to file a new or amended notice of appeal indicating that he was in fact appealing the district court’s post-judgment denial of his motion for a new trial and preliminary injunction entered twelve days after Murphy filed his notice of appeal in this case. This Court thus lacks jurisdiction to review the district court’s order denying those motions. We have considered all of Murphy’s remaining arguments and determine them to be without merit; accordingly the appeal is DISMISSED. .

In addition to seeking review of the district court's post-judgment order, Murphy asks the Court to reconsider its holding in Webb v. Goord, 340 F.3d 105 (2d Cir.2003). We are bound by our ruling in Webb, "unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc.” Nicholas v. Goord, 430 F.3d 652, 659 (2d Cir.2005) (internal quotation marks omitted), cert. denied, 549 U.S. 953, 127 S.Ct. 384, 166 L.Ed.2d 270 (2006).