Cal Heidelberg, Jr. v. Erie Police Department

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-3299
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CAL HEIDELBERG, JR.,
Appellant
v.
CITY OF ERIE POLICE DEPARTMENT; DISTRICT ATTORNEY ERIE COUNTY;
CAPTAIN FRANK KWITOWSKI; OFFICER ANTHONY ATTALLA;
OFFICER JOHN POPOVIC; BRANDON BANGAL, District Attorney’s Office;
R. GREENE, “Officer” E.P.D.; John Doe “1”, Dispatch at E.P.D.
__________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 14-cv-00116)
Magistrate Judge: Susan Paradise Baxter
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 24, 2016
Before: CHAGARES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: February 6, 2017)
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OPINION*
____________
PER CURIAM
Cal Heidelberg, Jr. appeals from orders of the Magistrate Judge dismissing his
complaint and denying his “Motion to Set Aside Judgment to Reopen Case Due to Non
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Culpable Negligence.”1 For the reasons that follow, we will dismiss the appeal in part for
lack of appellate jurisdiction and affirm in part to the extent of our jurisdiction.
On April 18, 2014, Heidelberg, then an inmate at the Erie County Prison in Erie,
Pennsylvania, filed a pro se civil rights complaint, 42 U.S.C. § 1983, in the United States
District Court for the Western District of Pennsylvania. He named as defendants the City
of Erie Police Department, Captain Frank Kwitowski, Officer Anthony Attala, Officer
Popovic, the District Attorney’s Office, Assistant District Attorney Brandon Bingle,
Officer R.E. Williams (originally misidentified as “R. Greene”), and a John Doe Erie
Police Dispatcher later identified as “OIC Eberlein.” Heidelberg alleged in his complaint
that Erie police officers subjected him to a false arrest, and that Assistant District
Attorney Bingle subjected him to a malicious prosecution based on that false arrest, in
violation of his rights under the Fourth and Fourteenth Amendments. The police stopped
Heidelberg’s vehicle on December 13, 2012, ordered him to exit it, searched his pockets,
and found within one of his pockets a container of crack cocaine. Heidelberg was
arrested and charged with possession of crack cocaine; an additional distribution charge
was added later. Heidelberg subsequently moved to suppress the evidence obtained
during the arrest; his motion was granted. The Commonwealth then chose not to proceed
with the prosecution, and the state trial court issued a nolle prosequi order. This civil
rights action complaining about an unconstitutional arrest followed.
The defendants filed motions to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6), contending that Heidelberg had failed to state a claim upon which
relief may be granted. Heidelberg submitted a response in opposition to dismissal and a
1
The parties consented to jurisdiction by a United States magistrate judge, see 28 U.S.C.
§ 636(c)(1).
2
motion for leave to amend the complaint. On September 15, 2014, the Magistrate Judge
denied the motion for leave to amend without prejudice, advising Heidelberg that he
should simply file his proposed amended complaint if he only sought to clarify or
supplement the allegations in his original complaint. Then, when there was no further
activity in the case, the Magistrate Judge granted the defendants’ motions and dismissed
the complaint in an order entered on March 27, 2015. The Magistrate Judge reasoned
that the claims could not proceed against the City of Erie because municipal liability
under § 1983 requires a plaintiff to allege the existence of a policy or custom that resulted
in a constitutional violation, Monell v. Dep’t of Social Services, 436 U.S. 658, 694-95
(1978); Heidelberg had made no such allegation. With respect to the individual police
officers, the Magistrate Judge reasoned that civil rights claimants in this circuit are
entitled to relief for false arrest and malicious prosecution only if they are innocent of the
crime for which they were prosecuted, citing Hector v. Watt, 235 F.3d 154, 156-57 (3d
Cir. 2000) (victims of unreasonable searches cannot be compensated for injuries that
result from discovery of incriminating evidence and consequent criminal prosecution).
Here the charges against Heidelberg were merely nolle prossed because the
Commonwealth’s evidence -- the crack cocaine -- was ordered suppressed by the trial
court. Heidelberg was not innocent of possession of crack cocaine. Last, the Magistrate
Judge determined that Assistant District Attorney Bingle was absolutely immunized from
a suit for money damages, citing Imbler v. Pachtman, 424 U.S. 409, 420 (1976).
On June 29, 2015, Heidelberg filed a motion in the District Court titled “Motion to
Set Aside Judgment to Reopen Case Due to Non Culpable Negligence.” In a text-only
3
order entered on the civil docket on August 25, 2015, the Magistrate Judge denied the
motion. The Magistrate Judge stated, in pertinent part:
The Court notes that [Heidelberg’s] primary complaint is that he never
received a copy of the final judgment in this case because [he] was no
longer at the Erie County Prison, which was [his] last known address where
the judgment was mailed. It was [his] responsibility to file a notice of
change of address with this Court upon being transferred to another
institution; therefore, [he] has stated no grounds upon which judgment will
be set aside….
Order of Magistrate Judge, August 25, 2015, Docket Entry No. 32.
On September 21, 2015, Heidelberg filed a notice of appeal from the Magistrate
Judge’s March 27, 2015 order dismissing his complaint, resulting in the instant appeal.
Our Clerk advised the parties that the appeal was subject to dismissal for lack of
jurisdiction because the notice of appeal was not timely filed. The parties were invited to
submit a response to the question of jurisdiction. Following that, our Clerk notified the
parties that the appeal would not be submitted to a motions panel for dismissal. The
parties were directed to address the jurisdictional issue in the briefs. Briefing is now
complete. In his pro se Informal Brief, Heidelberg argues that he did not receive the
Magistrate Judge’s order dismissing his complaint through no fault of his own, and that
the District Court neglected its clerical duties. Appellant’s Informal Brief, at ¶ 2.
We will dismiss the appeal in part for lack of appellate jurisdiction. The taking of
an appeal within the prescribed time is mandatory and jurisdictional. Bowles v. Russell,
551 U.S. 205, 209 (2007). Heidelberg had thirty (30) days from the Magistrate Judge’s
March 27, 2015 order in which to timely file a notice of appeal, Fed. R. App. P.
4(a)(1)(A); 28 U.S.C. § 2107(a), or until Monday, April 27, 2015, see Fed. R. App. P.
26(1)(C). His September 21, 2015 notice of appeal was not timely filed with respect to
4
the order dismissing the complaint pursuant to Rule 12(b)(6). Accordingly, we lack
jurisdiction to review that order.
We conclude that we may, however, exercise jurisdiction over the Magistrate
Judge’s order denying Heidelberg’s “Motion to Set Aside Judgment to Reopen Case Due
to Non Culpable Negligence.” His September 21, 2015 notice of appeal was timely filed
within thirty days of the Magistrate Judge’s August 25, 2015 text-order, see Fed. R. App.
P. 4(a)(1)(A). In addition, although Heidelberg did not designate the August 25, 2015
text-order in his notice of appeal, see Fed. R. App. P. 3(c)(1)(B), we may exercise
appellate jurisdiction over “orders that are not specified in the notice of appeal where: (1)
there is a connection between the specified and unspecified orders; (2) the intention to
appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and
has a full opportunity to brief the issues.” Cortez v. Trans Union, LLC, 617 F.3d 688,
695 n.2 (3d Cir. 2010) (quoting Polonski v. Trump Taj Mahal Associates, 137 F.3d 139,
144 (3d Cir. 1998)). These conditions are satisfied here.
We will affirm the Magistrate Judge’s order denying Heidelberg’s “Motion to Set
Aside Judgment to Reopen Case Due to Non Culpable Negligence.” The appeal period
may be reopened if “the court finds that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d).” Fed. R. App. P. 4(a)(6)(A). Service of the final
order pursuant to civil Rule 77(d) is proper where it is mailed to the person at his last
known address. Fed. R. Civ. P. 5(b)(2)(C). The final order entered on March 27, 2015
was mailed to Heidelberg’s last known address and it was his responsibility to file a
notice of change of address with the District Court upon being transferred to another
institution. The District Court civil docket report reflects that the order was mailed to the
5
Erie County Prison, Heidelberg’s address of record (and returned to the District Court
marked “Return to Sender, Not Here”).
We note that Heidelberg mailed a post-judgment amended complaint to the
District Court on April 13, 2015, and that the return address on the envelope indicated
that he was now incarcerated at the State Correctional Institution in Albion, Pennsylvania
(“SCI-Albion”), see Docket Entry No. 29-1. We conclude, however, that the District
Court Clerk’s Office staff cannot be faulted for failing to notice this. Simply stating a
new return address on an envelope that contains and transmits a pleading for filing is not
adequate to give notice of a change of address. “The parties … bear the burden of filing
notice of a change of address in such a way that will bring the attention of the court to the
address change.” Theede v. United States Department of Labor, 172 F.3d 1262, 1267 (3d
Cir. 1999). See also Poole v. Family Court of New Castle County, 368 F.3d 263, 266 n.4
(3d Cir. 2004) (“It is simply asking too much of the district court clerk to note that the
address listed on [the inmate’s] letter was different from the address that [he] had
previously provided.”). Moreover, as the appellees have noted, the Magistrate Judge’s
June 11, 2014 order, see Docket Entry No. 10, sets forth the requirement that “Plaintiff
shall immediately advise the court of any change of address,” and that, “[f]ailure to do so
may result in dismissal for failure to prosecute if the court and other parties are unable to
serve pleadings, orders and other documents upon Plaintiff.” Accordingly, even if we
were to assume that Heidelberg’s “Motion to Set Aside Judgment to Reopen Case Due to
Non Culpable Negligence” is properly construed as a motion to reopen the appeal period
6
under Fed. R. App. P. 4(a)(6), and that it was timely filed,2 the Magistrate Judge properly
declined to reopen the appeal period and properly denied the motion because service of
the final order was mailed to Heidelberg at his last known address.
For the above reasons, we will dismiss the appeal in part for lack of appellate
jurisdiction and affirm the Magistrate Judge’s order denying Heidelberg’s “Motion to Set
Aside Judgment to Reopen Case Due to Non Culpable Negligence.”
2
The motion was filed within 180 days after judgment was entered, but the rule requires
that the motion be filed “within 14 days after the moving party receives notice under
Federal Rule of Civil Procedure 77(d) of the entry,” if that date is earlier. Fed. R. App. P.
4(a)(6)(B). The appellees have challenged whether the motion was filed within 14 days
after Heidelberg received notice of the final order.
7