Clinton Lewis, et al v. Defender Association of Philad, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: VANASKIE, COWEN and NYGAARD, Circuit Judges. Total Pages: 7.

Case: 16-3594

Document: 003112768118

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Date Filed: 11/02/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3594
___________
CLINTON LEWIS;
H. L., A Minor;
S. L., A Minor,
Appellants
v.
DEFENDER ASSOCIATION OF PHILADELPHIA;
CITY OF PHILADELPHIA; JOHN DOE, In his individual and Official Capacity,
a/k/a FJD Security Officer Dibernardo; FIRST JUDICIAL DISTRICT OF
PENNSYLVANIA; COMMONWEALTH OF PENNSYLVANIA; MATTHEW
SIMONE, RNP; TENET HEALTH SYSTEM HAHNEMANN LLC,
d/b/a Hahnemann University Hospital; REBECCA LYNN MAINOR
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-01674)
District Judge: Honorable Legrome D. Davis
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 1, 2017
Before: VANASKIE, COWEN, and NYGAARD, Circuit Judges
(Opinion filed: November 2, 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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___________
PER CURIAM
Clinton Lewis and his two minor children filed a lawsuit in the Philadelphia Court
of Common Pleas, bringing federal and state claims relating to events surrounding the
removal of the children from Lewis’s custody. Noting the federal claims, two of the
defendants removed the action to the United States District Court for the Eastern District
of Pennsylvania. Subsequently, Lewis and his children amended their complaint.
In the amended complaint, Lewis and his children brought claims against the
Commonwealth of Pennsylvania (“the Commonwealth”), the First Judicial District of
Pennsylvania (“FJD”), FJD Security Officer DiBernardo, the City of Philadelphia (“the
City”), the Defender Association of Philadelphia (“the Defender Association”), and
Rebecca Mainor (a lawyer at the Defender Association), under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) and (d), 42 U.S.C § 1983,
and several state law causes of action. 1 Clinton also sued Tenet Healthsystem d/b/a
Hahnemann University Hospital (“Tenet”), 2 and Matthew Simone (a Tenet nurse
practitioner) for medical professional negligence.
All of the defendants but Tenet and Simone moved to dismiss the amended
complaint. Tenet and Simone filed an answer instead. In an order entered on August 24,

1

Some of these state law claims were brought by Lewis and the children; two only by
Lewis; and one only by the children.

2

Tenet later identified itself as Tenet HealthSystem Hahnemann, LLC.
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2016, the District Court granted the motions to dismiss. Specifically, the District Court
dismissed all the claims against the Commonwealth and the FJD with prejudice on the
basis of sovereign immunity. The District Court also dismissed the RICO claim against
the City with prejudice (noting the plaintiffs’ agreement that those claims should be
dismissed) and the RICO claims against Mainor and the Defender Association without
prejudice. The District Court dismissed the § 1983 claims against the City, Mainor, and
the Defender Association without prejudice. Having dismissed all of the federal claims,
the District Court then declined to exercise jurisdiction over the state law claims. The
District Court twice explicitly stated that it was dismissing the complaint “in its entirety.”
Order, 1 & 11. Lewis appeals. 3
We first consider our jurisdiction, which Appellees challenge in responses to a
jurisdictional notice issued by the Clerk and in their briefs. Upon review, we conclude
that the District Court issued a final order over which we have jurisdiction under 28
U.S.C. § 1291.
We reject the argument that the District Court’s order was not final because some
claims were dismissed without prejudice in order to provide Lewis an opportunity to
amend his complaint to state a claim. “Generally, an order which dismisses a complaint

3

Lewis and his children filed a notice of appeal through counsel. After counsel was
permitted to withdraw from this case for medical reasons (the District Court also
permitted his withdrawal in the District Court on February 27, 2017), Lewis filed a brief
on behalf of himself and his children. We notified him that he could not represent his
children and that the appeal would proceed only as to him unless new counsel entered an
appearance. No new counsel has entered an appearance, so this appeal proceeds only as
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without prejudice is neither final nor appealable because the deficiency may be corrected
by the plaintiff without affecting the cause of action.” Borelli v. City of Reading, 532
F.2d 950, 951 (3d Cir. 1976) (per curiam). “Only if the plaintiff cannot amend or
declares his intention to stand on his complaint does the order become final and
appealable.” Id. at 951-52. Lewis chose not to amend his complaint; he instead appealed
and has declared his intention to stand on his complaint. See Frederico v. Home Depot,
507 F.3d 188, 192-93 (3d Cir. 2007) (determining that a plaintiff had elected to stand on
her complaint where she did not seek to correct the purported pleading deficiencies, but
instead repeatedly asserted that her complaint was sufficient as filed). Accordingly, that
the District Court’s ruling was “without prejudice” as to some claims does not preclude
our review.
We also reject the argument that the District Court’s order is not final and
immediately appealable because claims remain against Tenet and Simone, who filed an
answer to the complaint, not a motion to dismiss. The appellees are correct that a
judgment, to be appealable, must be final as to all parties, all causes of action, and the
whole subject-matter. See Andrews v. United States, 373 U.S. 334, 340 (1963) (citing
Collins v. Miller, 252 U.S. 364 (1920)); Mellon Bank, N.A. v. Metro Commc’ns, Inc.,
945 F.2d 635, 640 (3d Cir. 1991). And, as they note, an order that does not resolve all
the claims against all the parties does not end the action and is not an immediately
appealable order unless the district court, pursuant to Federal Rule of Civil Procedure

to Lewis.

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54(b), expressly directs the entry of a final judgment as to some subset of the claims or
parties. Fed. R. Civ. P. 54(b); Hill v. City of Scranton, 411 F.3d 118, 124 (3d Cir. 2005).
However, in this case, as the District Court twice stated, the complaint was dismissed in
its entirely. Although Tenet and Simone did not move to dismiss the complaint, which
presented a state law claim of medical professional negligence against them, the District
Court dismissed the complaint against them. After the District Court dismissed the
federal claims against other defendants, the District Court declined to exercise
supplemental jurisdiction to review the state law claims, including the claim of medical
professional negligence. No claims remain to be considered in the District Court, and we
have jurisdiction over this appeal.
We exercise plenary review over a district court’s order dismissing a complaint for
failure to state a claim upon which relief can be granted or for lack of subject matter
jurisdiction. See Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 83 (3d Cir. 2011);
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). We review a
district court’s exercise of supplemental jurisdiction for abuse of discretion. See De
Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003). We do not review,
however, arguments that are not raised on appeal; those arguments are waived. See Kost
v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993); see also Al-Ra’Id v. Ingle, 69 F.3d 28,
31 (5th Cir. 1995) (noting that pro se litigants are not excepted from the requirement to
raise and argue issues on appeal).

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As some Appellees argue, Lewis’s brief is deficient. Although he filed his notice
of appeal to challenge the District Court’s order of August 24, 2016, he states in his brief
that he challenges the District Court’s order of February 27, 2017 (the order permitting
his counsel to withdraw from the case for medical reasons). Appellant’s Informal Brief
1. He misidentifies the date of his notice of appeal as January 23, 2017, though it appears
that he did not file anything in this Court or the District Court on that date that could be
considered a notice of appeal. 4 Id. As his statement of the case, he notes that the District
Court stayed his case at that time for 60 days so that he could secure new counsel. Id.
He does present a summary of the facts of his case insomuch as he repeats his claim that
his rights were violated in the proceedings that removed his children from his custody,
and he asserts that he wants a fair and adequate trial. Id. at 2. But in explaining how the
District Court wrongly decided his case, he complains only that the case was wrongly
removed to the District Court. Id. at 3. He states that there is no other reason why the
District Court’s ruling was wrong and that the District Court did not apply the wrong law.
Id. at 4 & 5.
First, the District Court’s order permitting counsel’s withdrawal from the case is
not before us. Lewis’s notice of appeal specified the August order and predated the
February order by months. He simply did not appeal from the February order. 5

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5

On that day, we granted his counsel’s motion to withdraw from this appeal.

To the extent that he seeks reconsideration of our order of January 23, 2017, allowing
his counsel to withdraw in light of his serious medical problem, reconsideration is denied.
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Second, Lewis raised no objection in the District Court to the removal of his
complaint, which raised federal claims on its face. Because he did not present the issue
to the District Court, the argument is waived. See Brenner v. Local 514, United Bhd. of
Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991).
As some Appellees assert, all other issues also have been waived. See United
States v. Pellulo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s
failure to identify or argue an issue in his opening brief constitutes waiver of that issue on
appeal.”); see also United States v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011)
(explaining when “extraordinary circumstances” allow review of a later-raised argument).
For these reasons, we will affirm the District Court’s judgment.

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