ROUDABUSH v. BITENER et al
Filing
122
OPINION. Signed by Judge Renee Marie Bumb on 6/22/2016. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
James L. Roudabush, Jr.,
:
:
Plaintiff,
:
v.
:
:
:
Lt. Bitener et al.,
:
:
Defendants.
:
_______________________________
CIV. ACTION NO. 15-3185(RMB)
OPINION
APPLIES TO BOTH ACTIONS
James L. Roudabush, Jr.
:
:
Plaintiff,
:
:
v.
:
:
Capt. Reyes et al.,
:
:
Defendants.
:
_______________________________
CIV. ACTION NO. 15-5521(RMB)
RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s motions,
in the above-captioned actions, to vacate the Court’s Order of April
21, 2016, due to lack of jurisdiction. (Roudabush v. Bitener et al.,
Civil Action No. 15-3185(RMB) (ECF No. 117)); Roudabush v. Reyes et
al., Civil Action No. 15-5521(RMB) (ECF No. 69)).
I.
BACKGROUND
1
Plaintiff, a prisoner who sought to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 in these Bivens actions, has three
strikes under the Prisoner Litigation Reform Act of 1995 (“PLRA”).
(Civil Action No. 15-3185, Opinion and Orders, ECF No. 7, 9, 10; Civil
Action No. 15-5521, Order, ECF No. 6). Plaintiff acquired the strikes
in
the
following
11cv980(SDW-MCA)(D.N.J.
cases:
July
Roudabush
14,
2011
and
v.
United
July
13,
States,
2012)(all
defendants dismissed for failure to state a claim upon which relief
may be granted); Roudabush v. Johnson, 11cv7444(RMB)(D.N.J. Aug. 16,
2012)(dismissed for failure to state a claim); and Roudabush v.
Johnson, No. Civ.A. 705CV00691, 2006 WL 270020 (W.D. Va. Feb. 3,
2006)(all claims dismissed as frivolous and/or failure to state a
claim).
This Court, however, granted Plaintiff’s applications to
proceed in forma pauperis, because Plaintiff alleged he was in
imminent danger of serious physical injury at the time he filed the
complaint. (Civil Action No. 15-3185, Order, ECF No. 10; Civil Action
No. 15-5521, Order, ECF No. 6). Defendants challenged Plaintiff’s
assertion of imminent danger of serious physical injury. (Civil
Action No. 15-3185, Defs’ Response to Pl’s Allegation of Imminent
Danger of Serious Physical Injury Under 28 U.S.C. § 1915(g), ECF No.
22; Civil Action 15-5521, ECF No. 11.)
2
On April 6, 2016, the Court held a hearing on the issue of whether
Plaintiff was in imminent danger of serious physical injury when he
filed these actions. (Civil Action No. 15-3185, Minute Entry, ECF
No. 107; Civil Action No. 15-5521, ECF No. 62). For the reasons stated
on the record at the hearing, the Court found Plaintiff was not in
imminent danger of serious physical injury on April 14, 2015 or on
July 9, 2015. Having found that Plaintiff had three strikes under
28 U.S.C. § 1915(g), and he was not in imminent danger of serious
physical injury when he filed these actions, the Court revoked
Plaintiff’s IFP status. (Civil Action No. 15-3185(RMB) Opinion and
Order, ECF Nos. 112-113; Civil Action No. 15-5521(RMB), ECF Nos. 65,
66.)
Furthermore, in response to Plaintiff’s “Motion to Grant
Equitable tolling/Apply Mailbox Rule for Plaintiff’s 1915(g) Status”
and “Notice of Strike Errors,” on April 21, 2016, this Court found
that even if it assumed Plaintiff’s complaint was filed in Civil
Action No. 15-3185 as early as February 21, 2015 or at least by March
22, 2015, this would not change the result of the Court’s imminent
danger finding. (Id.)
II.
DISCUSSION
3
In his present motions, Plaintiff contends the Court lacked
jurisdiction over “my medical records aspect of the case.” (Civil
Action No. 15-3185(RMB), ECF No. 117; Civil Action No. 15-5521(RMB)
ECF No. 69) Plaintiff filed an interlocutory appeal on November 6,
2015, challenging the Court’s decision that it would consider
Plaintiff’s medical records in determining whether he was in imminent
danger of serious injury at the time his complaints were filed in
his Bivens actions. (Id. at 2.) Plaintiff asserts the Court of Appeals
had not decided Plaintiff’s appeal when the Court held the imminent
danger hearing on April 6, 2016. (Id.)
Plaintiff’s interlocutory appeal, 1 challenging this Court’s
order finding that Defendants properly submitted Plaintiff’s medical
records for consideration of the imminent danger issue, did not
deprive this Court of jurisdiction to hold the imminent danger
hearing. The Third Circuit Court of Appeals, in its Order in Lieu
of a Formal Mandate, dismissed Petitioner’s appeal on December 24,
2015, for failure to timely prosecute.2 “Issuance of the mandate ends
the jurisdiction of the circuit court and returns jurisdiction to
the district court.” 20A JAMES WM. MOORE
ET AL.,
MOORE'S FEDERAL PRACTICE
1 (Civil Action No. 15-3185(RMB), Notice of Appeal, ECF No. 80; Civil
Action No. 15-5521, ECF No. 37.) The Court notes Plaintiff never
sought permission from the District Court to file an interlocutory
appeal. See 28 U.S.C. § 1292(b).
2 (Civil Action No. 15-3185(RMB), D.N.J., Certified Order in Lieu
of Formal Mandate, ECF No. 89; Civil Action No. 15-5521, ECF No. 47.)
4
§ 341.02 (3d ed. 1999); see Mary Ann Pensiero, Inc. v. Lingle, 847
F.2d 90, 97 (3d Cir. 1988) (appeal becomes final when Clerk of Circuit
Court of Appeals issues certification in lieu of a mandate); see U.S.
v. Williams, Criminal Action No. 02–172–27, 2015 WL 224381, at *3
(E.D. Pa. Jan. 16, 2015) (“Fed.R.App.P. 41(c) dictates that ‘[t]he
mandate is effective when issued.’”)
Although Petitioner is seeking to have the appeal reopened, it
has not been reopened.3 The imminent danger hearing was held after
the appeal was dismissed, and this Court had jurisdiction.
III. CONCLUSION
For these reasons, the Court will deny Plaintiff’s motions to
vacate for lack of jurisdiction.
s/ RENÉE MARIE BUMB
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated June 22, 2016
3 See Roudabush v. Bitener et al., Nos. 15-3699, 15-3700 (3rd Cir),
available at www.pacer.gov.
5
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