EDWARDS v. GAHM et al
Filing
64
OPINION. Signed by Judge Noel L. Hillman on 12/5/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MR. RENÉ D. EDWARDS,
Plaintiff,
1:16-cv-5702-NLH-AMD
OPINION
v.
JAMES R. GAHM, et al.,
Defendants.
APPEARANCES:
RENÉ D. EDWARDS
SUMMIT PLACE APARTMENTS
411 EAST GIBBSBORO ROAD
APT. 110
LINDENWOLD, NJ 08021
Appearing pro se
MELIHA ARNAUTOVIC
OFFICE OF THE ATTORNEY GENERAL OF NJ
25 MARKET ST, 7TH FL, WEST WING
PO BOX 116
TRENTON, NJ 08625
On behalf of Defendants
HILLMAN, District Judge
This case concerns claims by Plaintiff regarding his arrest
and conviction for violating the Sex Offender’s Monitoring Act,
a conviction which was vacated four years later after the New
Jersey Supreme Court deemed the retroactive application of the
Act to be unconstitutional.
On November 1, 2018, this Court
granted Defendants’ motions to dismiss Plaintiff’s claims
against them, concluding that while the Court was cognizant of
the harms the Plaintiff had suffered as a result of his
incarceration, which included a vicious beating by a cellmate
and serious bodily injuries, the named Defendants could not held
liable as a matter of law for the claims Plaintiff has asserted
against them. 1
(Docket No. 50 at 26-27.)
On December 11, 2018, Plaintiff filed a notice of appeal
with United States Court of Appeals for the Third Circuit.
(Docket No. 52.)
On May 1, 2019, the Third Circuit dismissed
Plaintiff’s appeal because it was untimely.
(Docket No. 54.)
The Third Circuit explained:
The appeal is dismissed for lack of appellate jurisdiction.
Appellant filed a notice of appeal concerning the District
Court’s November 1, 2018 order dismissing his claims
1
The Court also noted that Plaintiff had filed eleven other
actions in this Court against various defendants arising out of
his GPS monitoring and what occurred while he was incarcerated
due to the Sex Offender Monitoring Act violation charge. All
those cases have been closed, except for his most recent one 18-cv-11955 - which is at the complaint screening process stage,
and in which Plaintiff has filed essentially identical motions
to the ones pending here. See EDWARDS v. THE HILLMAN GROUP,
COMPANY et al. 1:18-cv-11955-NLH-JS; EDWARDS V. GRANT 1:17-cv07229-NLH-KMW; EDWARDS v. THE ATTORNEY GENERAL OF THE STATE OF
NEW JERSEY et al. 1:14-cv-02802-NLH; EDWARDS v. FALVEY 3:14-cv05753-PGS-TJB; EDWARDS v. COMMISSIONER OF SOCIAL SECURITY 1:13cv-07731-NLH; EDWARDS v. STATE OF NEW JERSEY 3:13-cv-06523-PGS;
EDWARDS v. V.C.C.B. BOARD MEMBERS et al. 1:13-cv-03635-NLH-JS;
EDWARDS v. BAYSIDE STATE PRISON et al. 1:13-cv-00833-NLH-AMD;
EDWARDS v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY et
al. 1:13-cv-00448-RBK; EDWARDS v. STATE OF NEW JERSEY et al.
1:13-cv-00214-NLH-JS; EDWARDS v. THE STATE OF NEW JERSEY et al.
1:08-cv-05617-RMB-KMW.
2
against all of the defendants. Appellant was required to
file his notice of appeal with the District Court Clerk by
Monday, December 3, 2018, within the applicable thirty-day
appeal period measured after entry of the judgment or
order. See Fed. R. App. P. 4(a)(1)(A). See also Fed. R.
App. P. 26(a)(1)(C) (a calculated period ending on a
Saturday, Sunday, or legal holiday is extended to include
the next day that is not a Saturday, Sunday, or legal
holiday). Appellant’s notice of appeal, filed on December
11, 2018, was untimely. It is well-settled that “the
timely filing of a notice of appeal is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 213-14
(2007). Accordingly, we lack jurisdiction over the appeal,
and we do not reach the motions filed by Appellant.
(Id.)
Currently pending before this Court are four motions filed
by Plaintiff:
(1) MOTION to Reopen the Time to File an Appeal
[55]; (2) MOTION To File, New Federal Judge, Chief Of Federal
[57]; (3) MOTION For Oral Argument and Trial [60]; and MOTION to
Reopen and Process New Evidence [67].
For the reasons expressed
below, all of Plaintiff’s motions will be denied.
(1) MOTION to Reopen the Time to File an Appeal [55]
Plaintiff argues that his time to appeal should be reopened
because he did not receive notice of the Court’s November 1,
2018 Opinion and Order dismissing his case until “several weeks
later,” and only after he called the Clerk’s Office, which
informed him that his case had been dismissed. 2
2
Plaintiff has
Plaintiff also asks that this Court use its discretion to
construe his December 11, 2018 notice of appeal as timely.
While Appellate Rule 4(a) does allow this Court to extend the
time to appeal or reopen the time for appeal, it is ultimately
for the Third Circuit Court of Appeals to determine that issue
3
moved for this relief pursuant to Federal Appellate Rule
4(a)(6).
The Federal Rules of Civil and Appellate Procedure provide
a limited remedy to a party who has failed to file his notice of
appeal within the applicable deadline, which in this case was 30
days after the November 1, 2018 decision.
Under Fed. R. Civ. P.
77(d), “Immediately after entering an order or judgment, the
clerk must serve notice of the entry, as provided in Rule 5(b),
on each party who is not in default for failing to appear.
clerk must record the service on the docket.
The
A party also may
serve notice of the entry as provided in Rule 5(b).”
Rule 77(d)
further provides, “Lack of notice of the entry does not affect
the time for appeal or relieve--or authorize the court to
relieve--a party for failing to appeal within the time allowed,
except as allowed by Federal Rule of Appellate Procedure
(4)(a).”
Appellate Rule 4(a) provides a procedure for reopening the
time to file a notice of appeal when the party desiring to
appeal does not receive notice of the entry of the judgment or
order.
“In a civil case, [] the only way in which a party may
obtain relief based on a clerk's failure to serve notice of the
entry of a judgment or order is via Appellate Rule 4(a) . . . .”
and that Court has already determined that Plaintiff’s appeal
was untimely. The passage of more time cannot cure that defect.
4
Poole v. Family Court of New Castle County, 368 F.3d 263, 266
(3d Cir. 2004).
Appellate Rule 4(a)(5) states in relevant part, “The
district court may extend the time to file a notice of appeal if
. . . a party so moves no later than 30 days after the time
proscribed by this Rule 4(a) expires. . . .”
4(a)(6) contains similar language:
Appellate Rule
“The district court may
reopen the time to file an appeal . . . if . . . the motion is
filed within 180 days after the judgment or order is entered or
within 7 days after the moving party receives notice of the
entry. . . .”
Here, Plaintiff claims that he filed his notice of appeal
too late because he did not receive notice from the Clerk “until
several weeks later.”
(Docket No. 55 at 3.)
Plaintiff does not
provide the date he received notice of the November 1, 2018
decision, which would inform the Court of whether Plaintiff’s
30-day window to appeal had already expired, and whether relief
under Appellate Rule 4(a)(5) was still available to Plaintiff.
Even accepting that Plaintiff received late notice, 3 his
3
The Court has no reason to believe that the Clerk failed to
comply with Fed. R. Civ. P. 77(d). Plaintiff, who is not a
lawyer and is proceeding pro se is not an electronic filer with
access to the Court’s electronic docket. In such cases, it is
the practice of the Clerk’s Office to send via regular mail
copies of all docket entries to parties who do not have access
to the electronic docket and then document such a mailing on the
docket. In this matter, the “display receipts” for the docket
5
time to appeal had expired, and he could not avail himself of
the remedy under Appellate Rule 4(a)(5), Plaintiff’s current
application under Appellate Rule 4(a)(6) is without force.
Plaintiff admits that he received notice of the November 1, 2018
decision several weeks after its docketing, which resulted in
Plaintiff filing his December 11, 2018 notice of appeal.
Accepting for the sake of Plaintiff’s motion that he was first
notified of this Court’s November 1, 2018 decision on December
11, 2018, at that time Plaintiff had seven days under Appellate
Rule 4(a)(6) to file a motion in this Court seeking relief under
that Rule to have his time to appeal reopened.
Plaintiff failed
to do so.
Even providing Plaintiff with Appellate Rule 4(a)(6)’s 180day maximum period to seek relief under that rule from the date
of the Court’s November 1, 2018 decision, Plaintiff had until
April 30, 2019 to file his Appellate Rule 4(a)(6) motion.
Plaintiff did not file his instant Appellate Rule 4(a)(6) motion
until June 6, 2019.
It may not seem fair to Plaintiff that his appeal was
dismissed as untimely the day after the Appellate Rule 4(a)(6)
entries containing the Court’s November 1, 2018 Opinion and
Order show that the Clerk’s Office sent those items by “regular
U.S. Mail” to Plaintiff’s Lindenwold, New Jersey address, which
remains Plaintiff’s current address, on the same day - November
1, 2018 – the Opinion and Order were entered on the docket.
(Docket No. 50, 51.)
6
180-day period expired, and he may not have been aware of his
need to avail himself of the relief under Appellate Rule 4(a)(6)
until it was too late, but pro se parties “cannot flout
procedural rules,” and “they must abide by the same rules that
apply to all other litigants.”
Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 244 (3d Cir. 2013); see also McNeil v. United
States, 508 U.S. 106, 113 (1993) (pro se litigants “must still
plead the essential elements of [their] claim and [are] not
excused from conforming to the standard rules of civil
procedure,” and “we have never suggested that procedural rules
in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel. . . .”).
Like all other parties, Plaintiff was required to consider the
Federal Civil and Appellate Rules of Procedure when prosecuting
his claims in this Court and his appeal in the Third Circuit.
See Sykes v. Blockbuster Video, 205 F. App’x 961, 963 (3d Cir.
2006) (“[A] litigant's compliance with the Federal Rules of
Civil Procedure is expected whenever he or she files a lawsuit
in federal court.”); cf. Brown v. New Jersey State Parole Bd.,
2006 WL 231830, at *4 (D.N.J. 2006) (“[T]to the extent that
Petitioner's failure to file a timely appeal resulted from
attorney error, Petitioner has not established ‘cause.’
To the
extent that Petitioner was acting pro se when he failed to file
a timely notice of appeal in the Appellate Division, his own
7
ignorance is not ‘cause.’
Neither a pro se prisoner’s ignorance
of the procedural rule nor inadvertence satisfies the cause
standard.”).
These rules “may appear harsh,” but “the apparent harshness
of the rule[s] is mitigated somewhat by the policy
considerations which underlie [them].”
at 582.
Baker, 534 F. Supp. 2d
“[R]elief under Rule 4(a)(6) is not freely available
because it was designed not to unduly affect the time when
judgments become final.”
Id. (quoting Marcangelo v. Boardwalk
Regency, 47 F.3d 88, 90 (3d Cir. 1995)).
“By providing a
limited opportunity to reopen the time for appeal, Rule 4(a)(6)
balances the inequity of foreclosing appeals by parties who do
not receive actual notice of a dispositive order against the
need to protect the finality of judgments.”
quotation omitted).
Id. (citation and
Moreover, the appellate rules in
conjunction with Fed. R. Civ. P. 77(d), are “designed to
encourage parties to diligently monitor the status of their
cases so as to protect their appellate rights.”
Id.; see also
Reyes v. Samuel, 2008 WL 228135, at *2–3 (D.N.J. 2008) (citing
Arai v. American Bryce Ranches, Inc., 316 F.3d 1066, 1070 (9th
Cir. 2003)) (finding that the “purpose of Rule 4(a)(6) is only
to soften the harsh penalty of losing one’s right to appeal
because of the court’s failure to notify a party of a judgment,
not to allow parties to file late appeals,” and noting that the
8
plaintiff pleaded ignorance of the law and rules, but finding
that it had
no power to reopen the time in which to appeal
pursuant to Rule 4(a)(6)).
“[T]he timely filing of a notice of appeal in a civil case
is a jurisdictional requirement,” and the U.S. Supreme Court has
found that neither it nor any lower court has “authority to
create equitable exceptions to jurisdictional requirements.”
Bowles v. Russell, 551 U.S. 205, 214 (2007).
Accordingly,
because Plaintiff did not comply with the applicable Appellate
Rules, this Court has no authority or ability to permit
Plaintiff to file a second appeal and deem it timely.
(2) MOTION To File, New Federal Judge, Chief Of Federal [57]
(3) MOTION For Oral Argument and Trial [60]
(4) MOTION to Reopen and Process New Evidence [62]
Plaintiff’s three other motions ask that the Court hold oral
argument on his underlying claims, reopen his case to process new
evidence, and also seek this Court’s recusal.
Because Plaintiff’s
case has been closed and his request to reactive his case has been
denied, there is no pending matter about which to hold oral
argument.
Plaintiff’s motions requesting oral argument must be
denied.
For Plaintiff’s request seeking this Court’s recusal, a
determination regarding recusal is within the sound discretion
of the trial court judge.
United States v. Wilensky, 757 F.2d
594, 599–600 (3d Cir. 1985).
The two principal statutes which
9
address judicial recusal are 28 U.S.C. §§ 144 and 455.
Under 28
U.S.C. § 144, recusal must occur “[w]henever a party to any
proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or
in favor of any adverse party.”
28 U.S.C. § 144.
A
“substantial burden is imposed on the party filing an affidavit
of prejudice to demonstrate that the judge is not impartial.”
Ali v. United States, 2015 WL 6502108, at *1 (D.N.J. 2015)
(citing Frolow v. Wilson Sporting Goods Co., 2011 WL 1337513, at
*2 (D.N.J. 2011) (citation omitted); Kilkeary v. United States,
2015 WL 3798061, at *4 (D.N.J. 2015)).
Alternatively, § 455(a) provides, in pertinent part, that
“[a]ny justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”
28 U.S.C. § 455(a).
“The test
for recusal under § 455(a) is whether a reasonable person, with
knowledge of all the facts, would conclude that the judge's
impartiality might reasonably be questioned.”
Allen v. Parkland
Sch. Dist., 230 F. App'x 189, 193 (3d Cir. 2007) (citing In re
Kensington Int'l Ltd., 368 F.3d 211, 220 (3d Cir. 2004)).
Plaintiff accuses this Court of defrauding Plaintiff of a
fair civil process.
Plaintiff also argues that this Court must
be recused from his case because the undersigned is a defendant
10
in a separate action filed by Plaintiff.
Plaintiff cites to
Civil Action 18-11955, EDWARDS v. THE HILLMAN GROUP, COMPANY et
al., which arises out of the same factual allegations as this
case.
The Plaintiff is mistaken.
named defendant in that case.
The undersigned is not a
While there is a defendant named
“The Hillman Group,” which is alleged to be the manufacturer of
the combination lock used by Plaintiff’s cellmate to beat him,
this Court has no affiliation with such an entity. 4
Plaintiff’s arguments do not satisfy the high standard a
litigant must meet to require recusal.
“[W]here, as here, a
litigant is simply dissatisfied with the District Court’s legal
rulings,” “neither [§ 144 nor § 455] “provides a basis for
recusal.”
Hairston v. Miller, 646 F. App’x 184, 188 (3d Cir.
2016) (citing Securacomm Consulting, Inc. v. Securacom Inc., 224
F.3d 273, 278 (3d Cir. 2000) (“We have repeatedly stated that a
party’s displeasure with legal rulings does not form an adequate
basis for recusal.”); Petrossian v. Cole, 613 F. App’x 109, 112
(3d Cir. 2015) (“Neither of these statutes provide a basis for
recusal where a litigant is simply displeased, as Petrossian was
(and is), with a prior adverse ruling.”).
Moreover, “the mere
fact that [a judge] may be one of the numerous federal judges
4
In Civil Action 18-11955, EDWARDS v. THE HILLMAN GROUP, COMPANY
et al., pending are two motions: “MOTION on Resignment” and
“MOTION for Trial, Impeachment.”
11
that [a litigant] has filed suit against is not sufficient to
establish that . . . recusal from his case is warranted under 28
U.S.C. § 144 or § 455(a).”
Azubuko v. Royal, 443 F.3d 302, 304
(3d Cir. 2006); see also Mina v. Chester County, 679 F. App’x
192, 196 (3d Cir. 2017) (“Mina sought to name the District Judge
as a defendant in the action (in an unauthorized amendment to
the complaint) (and has since filed suit against him).
However,
the addition of the District Judge’s name to the long list of
conspirators, which already included other judges that had ruled
against Mina, was an attempt to bring a baseless suit against
the District Judge. It was not a basis for recusal.”).
Plaintiff’s motion to recuse will be denied.
CONCLUSION
For the reasons expressed above, Plaintiff’s four motions
are without merit, and, accordingly, Plaintiff’s motions must be
denied.
An appropriate Order will be entered.
Date: December 5, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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