Gerald Bush v. Department of Human Services, et al

Filing

NOT PRECEDENTIAL OPINION Coram: CHAGARES, VANASKIE and FUENTES, Circuit Judges. Total Pages: 6. Judge: VANASKIE Authoring.

Case: 16-2110

Document: 003112770845

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Date Filed: 11/06/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2110
___________
GERALD BUSH,
Appellant
v.
DEPARTMENT OF HUMAN SERVICES; CITY OF PHILADELPHIA;
SAINT VINCENT'S SHELTER; MAYOR MICHAEL NUTTER;
COMMISSIONER ANNE MARIE AMBROSE; PHILADELPHIA POLICE
DEPARTMENT; LEO CARROL FIELDS, CHILD ADVOCATE; RONITTA BENTON,
SOCIAL WORKER FOR D.H.S.; THOMAS J. FEERICK, ESQ.; CRAIG B.
SOKOLOW; SHARON JOHNSON,SOCIAL WORKER FOR D.H.S.;
SONIA LEE, ESQ.; ANGELA LIDDELL YANCY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-11-cv-02612)
District Judge: Honorable C. Darnell Jones, II
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 9, 2017
______________
Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges
(Opinion Filed: November 6, 2017)
___________
OPINION*
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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VANASKIE, Circuit Judge.
Gerald Bush appeals the District Court’s order denying three motions he filed after
the dismissal of his fourth amended complaint—a “Complaint and Law,” which the
District Court construed as a motion for sanctions; a “Request for Appointment of
Counsel and Information in Support of Document”; and a “Request Permission to File
Interrogatories and Request Permission to File Laws in Support of Complaint with
Exhibits.” The District Court denied the motion for sanctions as both untimely and
meritless. Because the motion for sanctions was without merit, the District Court denied
Bush’s other motions as well. On appeal, Bush contends that the District Court abused
its discretion in denying his motion for sanctions and argues that he should be granted
leave to further amend his complaint. For the following reasons, we will affirm the order
of the District Court.
I.
In June 2011, Bush, proceeding pro se, filed a civil rights action on behalf of
himself, his minor daughter, and his infant granddaughter alleging a due process violation
based on an unconstitutional delay in receiving a post-deprivation hearing after the two
girls were removed from his home. Bush subsequently filed an amended complaint
which the District Court dismissed as untimely. We concluded that the District Court
abused its discretion in dismissing the complaint, and remanded for further proceedings.
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Bush v. Dep’t of Human Services, 485 Fed. App’x 594, 595 (3d Cir. 2012) (per curiam)
(Bush I). Bush then made several attempts to amend and added several new defendants
and claims. The District Court ultimately dismissed, with prejudice, Bush’s fourth
amended complaint for failure to state a claim upon which relief could be granted, and we
affirmed. Bush v. Dep’t of Human Services, 614 Fed. App’x 616, 621 (3d Cir. 2015) (per
curiam) (Bush II). Bush subsequently moved to refile his complaint, which the District
Court denied. He then filed two motions for reconsideration that were denied. We
affirmed all of these orders. Bush v. Dep’t of Human Services, 642 Fed. App’x 84, 85 (3d
Cir. 2016) (per curiam) (Bush III).
Several months after we affirmed the dismissal of his fourth amended complaint,
Bush filed the motions at issue here. Interpreting Bush’s “Complaint and Law”
generously, the District Court construed it as a motion for sanctions for failure to disclose
under Fed. R. Civ. P. 37(c).1 The District Court first found that the motion was
untimely, as the case had “long since been dismissed,” and we had affirmed the
dismissal. (App. 10.) The Court further concluded that, even had the motion been
timely, sanctions were not warranted because the complaint had been dismissed before a
Rule 16 conference had been held, and thus the defendants were not required to provide

1

In granting Bush leave to file his fourth amended complaint, the District Court
had required that he “seek leave of court before filing any further amendments.” Bush v.
Dep’t of Human Servs., No. 2:11-CV-2612, 2013 WL 6164072, at *4 (E.D. Pa. Nov. 20,
2013). While the “Complaint and Law” appears to be an additional complaint which
Bush did not have leave to file, the District Court construed it as a motion for sanctions
because Bush was proceeding pro se.
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the disclosures requested. Because the underlying motion for sanctions lacked merit, the
District Court also denied Bush’s “Request for Appointment of Counsel and Information
in Support of Document” and “Request Permission to File Interrogatories and Request
Permission to File Laws in Support of Complaint with Exhibits.” Bush filed this timely
appeal.2
II.
We review the denial of a motion for sanctions for abuse of discretion. Grider v.
Keystone Health Plan Central, Inc., 580 F.3d 119, 134 (3d Cir. 2009). To the extent that
Bush also seeks Rule 60(b) relief, we review an order denying such relief for abuse of
discretion as well. Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002).
III.
Bush argues that the District Court abused its discretion in denying his motion for
sanctions. He also contends that, because he is now represented by counsel, he should be
able to amend his complaint. We discern no abuse of discretion in the District Court’s
decision and further conclude that Bush should not be given leave to file a fifth amended
complaint.
Rule 37 provides that a court may impose appropriate sanctions on a party if that
party fails to disclose or supplement information as required by Rule 26. See Fed R. Civ.
P. 37(c). The District Court’s denial of Bush’s request for sanctions was proper for

2

The District Court had jurisdiction over Bush's underlying action pursuant to 28
U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.
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several reasons. First, Bush’s motion was untimely, as it was filed almost two years after
the District Court dismissed his fourth amended complaint. Although Rule 37 does not
establish a time limit for filing motions, an unreasonable delay may render such a motion
untimely. Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994). While we have not
prohibited the filing of Rule 37 motions after a judgment has been entered, a two-year
delay is certainly unreasonable. Bush’s motion for sanctions was also meritless, as his
complaint was dismissed before the parties had conducted a Rule 16 or a Rule 26
conference. The defendants were therefore not required to make any initial disclosures.
See Fed. R. Civ. P. 26(a)(1)(c) (requiring initial disclosures within 14 days of the parties’
Rule 26(f) conference). Finally, even if the motion had been timely and meritorious,
Rule 37 would still not require the imposition of sanctions. Rule 37 does not require
sanctions if a failure to disclose was “substantially justified or . . . harmless.” Fed. R.
Civ. P. 37(c)(1). Because Bush’s underlying claims lacked merit, the defendants’ failure
to make initial disclosures would have been excused under these exceptions. The District
Court therefore did not abuse its discretion in denying Bush’s motion for sanctions.3 Nor
did the District Court err in denying Bush’s contingent motions for appointment of

Indeed, we have already addressed this matter in Bush’s appeal of the denial of
his motion to refile his complaint and his motions for reconsideration. As we explained
in that case, “Bush was not entitled to discovery because he had not cured the legal
insufficiency of his complaint.” Bush III, 642 Fed. App’x at 85 (citing Ashcroft v. Iqbal,
556 U.S. 662, 686 (2009)).
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counsel and “Request Permission to File Interrogatories and Request Permission to File
Laws in Support of Complaint with Exhibits.”
Bush also asserts, arguably for the first time on appeal, that he should be given
leave to further amend his complaint. Even if this argument has not been waived, it is
untimely. We consider post-judgment motions to amend to have been filed as Rule 60(b)
motions. Ahmed, 297 F.3d at 209. Rule 60(c)(1) requires a Rule 60(b) motion to be
made “no more than a year after the entry of the judgment or order” and this “one year
‘time limit is not extended by the maintenance of an appeal.’” Fed. R. Civ. P. 60(c)(1);
Hancock Indus. v. Schaeffer, 811 F.2d 225, 239 (3d Cir. 1987) (quoting Egger v. Phillips,
710 F.2d 292, 329 (7th Cir. 1983)). The District Court dismissed Bush’s fourth amended
complaint with prejudice on January 6, 2014 and he did not file his “Complaint and Law”
until November 13, 2015—almost two years later. Thus, his request to amend, viewed as
a motion to reopen, is untimely.
IV.
For the foregoing reasons, we will affirm the order of the District Court entered
April 22, 2016.

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