Ash v. Philadelphia Prison System , 406 F. App'x 581 ( 2011 )

BLD-087 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3987
___________
RODNEY ASH,
Appellant
v.
PHILADELPHIA PRISON SYSTEM; COURT OF COMMON PLEAS OF
PHILADELPHIA COUNTY; CITY OF PHILADELPHIA; JANE DOE 2; JANE DOE 1;
JOHN DOE 11; JOHN DOE 10; JOHN DOE 9; JOHN DOE 8; JOHN DOE 7; JOHN
DOE 6; JOHN DOE 5; JOHN DOE 4; JOHN DOE 3; JOHN DOE 2; JOHN DOE 1;
THOMAS COSTELLO
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 04-cv-00556)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 13, 2011
Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: January 20, 2011)
_________
OPINION
_________
PER CURIAM
Appellant Rodney Ash appeals from the District Court’s order denying his motion
to reopen the time to file an appeal, and from the Court’s subsequent order denying his
motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, see United
States v. Rinaldi, 447 F.3d 192, 195 (3d Cir. 2006), and we review the District Court’s
orders for abuse of discretion, see id. (order denying motion to reopen); Tai Van Le v.
Univ. of Pa., 321 F.3d 403, 406 (3d Cir. 2003) (order denying motion for
reconsideration). For the following reasons, we will summarily affirm the District
Court’s orders. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
In February 2004, Ash filed a pro se civil rights action pursuant to 42
U.S.C. § 1983 against the Philadelphia Prison System; Thomas Costello, the
commissioner of the Philadelphia Prison System; the Philadelphia County Court of
Common Pleas, and 13 John Doe and Jane Doe defendants. Ash alleged, among other
things, that while incarcerated he was misdiagnosed with a psychiatric illness and then
subjected to unwarranted and unwanted treatment for that illness.
The named defendants filed motions to dismiss, which the District Court granted
on December 23, 2004. The District Court directed Ash to supply the names of the Doe
defendants by May 16, 2005. Ash failed to comply, and the District Court dismissed the
complaint without prejudice on May 18, 2005.
In August 2005, Ash filed a motion for summary judgment against the
Philadelphia Prison System, which the District Court “terminated” due to its earlier order
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dismissing the case. Ash filed nothing else until August 2009; then, he filed a series of
documents stating that he had not received the District Court’s December 23, 2004 order
and reasserting his claims. These filings did not, in any clear sense, request action from
the District Court, and the Court did not rule upon them.
On May 15, 2010, Ash filed a notice of appeal (docketed at No. 10-2460),
challenging the District Court’s December 23, 2004 order. While that appeal was
pending, Ash requested that the District Court reopen the time to file an appeal. Noting
that Ash’s appeal in No. 10-2460 remained open, the District Court dismissed the motion
to reopen. On August 19, 2010, we concluded that Ash’s notice of appeal was untimely
and thus dismissed the appeal for want of jurisdiction. Ash then asked the District Court
reconsider its order refusing to reopen the time to appeal; the District Court denied the
motion, and Ash initiated the appeal that is at issue here. 1 Ash has also asked this Court
to appoint counsel.
We agree with the District Court that Ash is not entitled to the relief he seeks.
Ash’s motion to reopen the period in which to appeal is governed by Rule 4(a)(6) of the
Federal Rules of Appellate Procedure. Under Rule 4(a)(6), a party must establish that he
or she did not receive notice of a judgment pursuant to Rule 77(d) of the Federal Rules of
1
After the District Court denied Ash’s motion to reopen, he filed a timely
motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure,
which tolled the time to appeal. See Fed. R. App. P. 4(a)(4)(A)(iv). The District Court
denied the Rule 59(e) motion on September 14, 2010, and Ash then filed a timely notice
of appeal on October 4, 2010.
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Civil Procedure. The Rule 4(a)(6) motion must be filed within 180 days of the entry of
judgment or within 14 days of the party’s receipt of notice, whichever is earlier. Thus,
the rule “establishes an outer time limit of 180 days within which a party who has not
received notice of the entry of a judgment may request a limited extension.” Marcangelo
v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995) (internal quotation marks omitted).
Here, the District Court entered its order dismissing the case on May 18, 2005. 2
Ash’s Rule 4(a)(6) motion was thus due by November 14, 2005. However, he did not
submit any such filing to the Court until, at the very earliest, August 4, 2009, well outside
the 180-day period. The District Court therefore did not abuse its discretion in denying
Rule 4(a)(6) relief. Moreover, given the fact that the Court correctly denied Ash’s Rule
4(a)(6) motion, we also conclude that the Court did not abuse its discretion in refusing to
reconsider that order. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)
(purpose of motion for reconsideration is to correct manifest errors of law or fact or to
present newly discovered evidence).
We will thus summarily affirm the District Court’s orders denying Ash’s motion
to reopen the time to appeal and his motion for reconsideration. See 3d Cir. L.A.R. 27.4;
2
The District Court dismissed Ash’s amended complaint without prejudice.
However, given Ash’s insistence in his later filings that he has presented meritorious
claims, we conclude that he has elected to stand on that complaint. See Borelli v. City of
Reading, 532 F.2d 950, 952 (3d Cir. 1976). Further, although Ash has claimed only that
he did not receive notice of the District Court’s December 23, 2004 order that granted the
motions to dismiss filed by named defendants, we will assume that he also did not receive
notice of the Court’s May 18, 2005 order dismissing the amended complaint.
4
I.O.P. 10.6. We will also deny Ash’s motion for appointment of counsel.
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