Mark Frazier v. City of Philadelphia, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: VANASKIE, COWEN and NYGAARD, Circuit Judges. Total Pages: 3.

Case: 17-3602

Document: 003112877725

Page: 1

Date Filed: 03/16/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3602
___________
MARK S. FRAZIER,
Appellant
v.
CITY OF PHILADELPHIA; COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-06878)
District Judge: Honorable Michael M. Baylson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 15, 2018
Before: VANASKIE, COWEN, and NYGAARD, Circuit Judges
(Opinion filed: March 16, 2018)
___________
OPINION*
___________

*

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

Case: 17-3602

Document: 003112877725

Page: 2

Date Filed: 03/16/2018

PER CURIAM
In January 2016, the District Court dismissed, without prejudice, Mark Frazier’s
pro se civil rights complaint against the Commonwealth of Pennsylvania and the City of
Philadelphia. In February 2016, Frazier filed an amended complaint. It appears that,
over the course of the next year, the defendants were not served and Frazier did not take
any action in the case. As a result, on February 28, 2017, the District Court dismissed the
case for failure to prosecute. Then, in both August 2017 and October 2017, Frazier
moved the District Court to reopen his case. The District Court denied those two motions
in orders entered September 13, 2017, and November 3, 2017, respectively. Frazier
subsequently filed a notice of appeal, seeking to challenge the November 3, 2017 order
denying his second motion to reopen.
We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s denial
of Frazier’s second motion to reopen.1 In that motion, he appeared to allege that “your

To the extent that Frazier also seeks to challenge the District Court’s February 28, 2017
order dismissing his case and/or its September 13, 2017 order denying his first motion to
reopen, we lack jurisdiction to review those orders because he did not timely appeal from
either of them. See Fed. R. App. P. 4(a)(1)(A) (establishing 30-day appeal period);
Bowles v. Russell, 551 U.S. 205, 209 (2007) (explaining “that the taking of an appeal
within the prescribed time is mandatory and jurisdictional”) (internal quotation marks
omitted). Although there are circumstances in which the timely filing of certain postjudgment motions tolls the time to appeal from an earlier final judgment, see Fed. R.
App. P. 4(a)(4)(A), those circumstances are not present here. Frazier’s second motion to
reopen did not trigger Rule 4(a)(4)(A) because that motion was not filed until October 16,
2017, which was more than 28 days after the District Court’s earlier orders. See Fed. R.
App. P. 4(a)(4)(A)(iv), (vi); Fed. R. Civ. P. 59(e).
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Case: 17-3602

Document: 003112877725

Page: 3

Date Filed: 03/16/2018

order denying a motion”2 arrived at his local post office on September 20, 2017, but was
not given to him the next time he came to pick up his mail.3 Frazier claimed that the City
of Philadelphia “may have coerced this.”
Frazier’s alleged mail issue, which arose months after the District Court dismissed
his case, hardly justified reopening the action. Because we cannot conclude that the
District Court erred in denying Frazier’s second motion to reopen, we will affirm that
decision.4

It is unclear whether Frazier is referring to the District Court’s September 13, 2017
order denying his first motion to reopen.
3
He alleges that this piece of mail was finally given to him on October 12, 2017.
4
Although we lack jurisdiction over the District Court’s February 28, 2017 order, it
should be noted that the absence of service in this case should not have played a role in
the District Court’s decision to dismiss the action for failure to prosecute. Because the
District Court had previously granted Frazier permission to proceed in forma pauperis
(“IFP”), it was not Frazier’s responsibility to serve the amended complaint. See 28
U.S.C. § 1915(d) (providing that, in IFP cases, “[t]he officers of the court shall issue and
serve all process”); see also Fed. R. Civ. P. 4(c)(3) (providing that, in IFP cases, a district
court must order that service be made by a United States marshal, a deputy marshal, or
someone specially appointed by the court). However, it appears that, even if Frazier’s
case had not been dismissed for failure to prosecute, his amended complaint would have
been subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Indeed, it appears that
his claims against the Commonwealth of Pennsylvania are barred by the Eleventh
Amendment, see Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996),
and that his allegations fail to state a claim for municipality liability against the City of
Philadelphia, see Vargas v. City of Philadelphia, 783 F.3d 962, 974 (3d Cir. 2015)
(explaining that, to prevail on such a claim, the plaintiff must establish the following:
“(1) []he possessed a constitutional right of which []he was deprived; (2) the municipality
had a policy; (3) the policy amount[ed] to deliberate indifference to the plaintiff’s
constitutional right; and (4) the policy was the moving force behind the constitutional
violation”) (last alteration in original) (internal quotation marks omitted).
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