Gay v. City of Philadelphia

DLD-051 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1933
___________
WILMER B. GAY,
Appellant
v.
CITY OF PHILADELPHIA;
ROBERT D. SHANNON;
WILLIAM K. SUTER,
US CLERK FOR US SUPREME COURT;
COMMONWEALTH OF PENNSYLVANIA;
BOARD OF PARDONS
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 11-cv-04194)
District Judge: Honorable Mary A. McLaughlin
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 29, 2012
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: December 26, 2012)
_________________
OPINION
_________________
PER CURIAM
Wilmer B. Gay appeals from an order of the United States District Court for the
Eastern District of Pennsylvania, which denied his motion for leave to proceed in forma
pauperis (“IFP”) and “to gain access to the Court to redress his grievance(s).” Because
no substantial question is raised by this appeal, we will summarily affirm the District
Court’s order.
Gay filed a civil complaint in the United States District Court for the Central
District of California. That court immediately transferred the action to the Eastern
District of Pennsylvania. Gay then filed an application to proceed IFP, but the Court
denied the application, finding that he had sufficient funds to pay the full filing fee.
District Court Order, dkt. #2. Gay filed a motion for reconsideration and for
“disqualification” of the assigned judge, Judge O’Neill. Judge O’Neill asked the Chief
Judge to assign another Judge to the matter, and on July 22, 2011, the Chief Judge
reassigned the case to Judge McLaughlin. District Court Order, dkt. #5. Thereafter,
Judge McLaughlin denied Gay’s motion for reconsideration, stating that Gay could
reinstate the case by remitting the filing fee within 30 days. District Court Order, dkt. #7.
Rather than pay, Gay filed another motion for reconsideration. Judge McLaughlin denied
the motion by order entered October 13, 2011. District Court Order, dkt. #9. Gay did not
2
file a notice of appeal. 1
Several months later, Gay filed a document, captioned in part, “Motion For Leave
to Proceed In Forma Pauperis in the Above Matter and to Gain Access to the Court to
Redress his Grievance(s) Concerning an Illegal Arrest, False Imprisonment, and his
Continued Unlawful Detention . . . .” District Court dkt. #11 (“February 2012 motion”).
The District Court denied the motion, noting that Gay had “on three or more prior
occasions while incarcerated had a civil action or appeal dismissed as frivolous,
malicious, or for failure to state a viable claim,” and that Gay had “failed to plead facts
which support a reasonable conclusion that he was in imminent danger of serious
physical injury at the time he filed this civil action . . . .” District Court Order, dkt. #12.
Gay timely appealed from the order.
The scope of this appeal is quite limited: we only have jurisdiction to review the
District Court’s order denying Gay’s February 2012 motion, as Gay’s notice of appeal
was timely only as to that order. Bowles v. Russell, 551 U.S. 205, 214 (2007) (timely
filing of notice of appeal in a civil case is a jurisdictional requirement). At the time Gay
filed his February 2012 motion, the case was closed. Gay had missed the Court’s
deadline for reinstating the case by paying the filing fee by several months. See District
Court order, dkt. #7. Thus, Gay was asking the District Court to reopen his case. Gay’s
February 2012 motion once again failed to show that he was in imminent danger of
1
Gay filed a petition for a writ of mandamus in our Court, asking that we set aside the
District Court order assigning the matter to another judge. We denied the petition. In re:
3
serious physical injury. As such, Gay has not shown that the District Court abused its
discretion when it denied his motion. Jackson v. Danberg, 656 F.3d 157, 162 (3d Cir.
2011) (review of district court’s denial of a motion to reopen is for abuse of discretion).
We therefore will affirm the District Court’s order. 2
Wilmer Gay, C.A. 11-4193, Jan. 5, 2012.
2
Gay’s Motion for Service of Process is denied, as Appellees are not participating in this
appeal. Gay’s letter dated October 30, 2012, construed as a motion to withdraw his
motion for entry of default, is granted. Gay’s “Motion Demonstrating Government
Attorney(s) Philadelphia County District Attorney R. Seth Williams and United States
Attorney Zane D. Memeger Breach of their General Duty of Candor . . .” is denied, as the
motion raises issues beyond the limited scope of this appeal. Gay’s “Motion to Compel
Respondents . . . to Make a Reply to Court’s Order . . .” is denied.
4