Nottingham v. Harry et al

Filing 71

MEMORANDUM (Order to follow as separate docket entry) re 67 MOTION for Relief from Judgment filed by James E. Nottingham, 66 Document Filed filed by James E. Nottingham, 65 MOTION to Strike 38 Brief in Support filed by James E. Nottingham, 69 MOTION to Strike filed by James E. Nottingham, 68 Document Filed filed by James E. Nottingham. Signed by Chief MJ Karoline Mehalchick on 5/6/2022. (cw)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES E. NOTTINGHAM,
Plaintiff

CIVIL ACTION NO. 4:19-CV-00595

v.
(MEHALCHICK, M.J.)

JASON COOLEY, et al,
Defendants.
MEMORANDUM

Before the Court is pro se prisoner-Plaintiff James E. Nottingham (“Nottingham”)’s
motion to strike (Doc. 65), petition to open default judgment (Doc. 66), motion for relief from
judgment (Doc. 67), petition to strike Defendants’ default judgment (Doc. 68), and motion to
strike default judgment (Doc. 69). This is a pro se civil rights action, initiated by the filing of a
complaint pursuant to 42 U.S.C. § 1983 on April 5, 2019, seeking relief for alleged excessive
force used by Defendants in effectuating his arrest. (Doc. 1). On July 6, 2020, the Court
dismissed Nottingham’s claims and closed this matter. (Doc. 48, Doc. 49). On April 9, 2021,
the United States Court of Appeals for the Third Circuit dismissed Nottingham’s notice of
appeal for lack of appellate jurisdiction. (Doc. 59). For the following reasons, Nottingham’s
motions shall be denied. (Doc. 65; Doc. 66; Doc. 67; Doc. 68; Doc. 69).
I.

BACKGROUND AND PROCEDURAL HISTORY
Nottingham filed his complaint on April 5, 2019, asserting, what the Court interpreted

to be, Fourteenth Amendment due process and Fourth Amendment excessive force claims.1

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In Nottingham’s complaint, he names Defendants Laurel Harry, Nancy Butts,
Richard A. Gray, Matthew Welickovitch, Dance Drier, Jason Cooley, Blake Brown, William
Jones, Janet Smith, Stephanie Smith, Brandon Renner, Thomas Markley, Michael Simpler,
Timothy Reitz, and Mary Kilgus (collectively, “Defendants”). (Doc. 1).

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(Doc. 1; Doc. 22, at 9). Nottingham’s claims arose from his arrest after he became involved
in a physical altercation with two of his houseguests on July 12, 2015. (Doc. 1, at 4-9, 11-18).
On October 3, 2019, the Court dismissed all of Nottingham’s claims other than the ones
against Defendants Cooley and Brown for excessive force. (Doc. 22, at 24; Doc. 28, at 2). On
July 6, 2020, the Court granted Defendants’ motion to dismiss and closed the case, finding
that Nottingham’s claims were barred under Pennsylvania’s statute of limitations. (Doc. 48,
at 5-6; Doc. 49). On September 28, 2020, Nottingham filed an appeal to the Third Circuit,
which was denied on April 9, 2021, for lack of appellate jurisdiction as Nottingham’s appeal
was untimely. (Doc. 55; Doc. 59). Subsequently, Nottingham filed the instant motions and
requests for relief. (Doc. 65; Doc. 66; Doc. 67; Doc. 68; Doc. 69).
II.

DISCUSSION
A. MOTION TO STRIKE
On September 13, 2021, Nottingham filed the motion to strike Defendants’ motion to

dismiss and brief in support, arguing that the filings are “wholly frivolous” and “submitted in
acts of bad faith as fraudulent misconduct and misrepresentation.” (Doc. 65, at 1). The Court
will construe this motion as having been brought pursuant to Federal Rule of Civil Procedure
12(f). Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Thus, by its
plain language, Rule 12(f) only reaches matter contained in a “pleading.” Rule 7(a)
enumerates the pleadings permitted in federal civil practice:
(a) PLEADINGS. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;

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(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
Fed. R. Civ. P. 7(a).
Because a motion to dismiss does not fall within any of these categories, the plain language
of Rule 12(f) does not support striking Defendants’ motion to dismiss or brief in support.
Accordingly, Nottingham’s motion to strike is DENIED. (Doc. 65).
B. REQUESTS FOR RELIEF FROM JUDGMENT
Nottingham has filed multiple pleadings that request relief from judgment that the
Court will now address simultaneously. First, Nottingham filed a “petition to open default
judgment,” requesting relief from judgment for: (1) “Violation of not being Mirandized under
the Fifth Amendment in which the 911 call has been unsubstantiated;” and (2) “Insufficient
service of process as [Nottingham] never received notice of any of the proceedings from the
Commonwealth within the 120 day statute of limitation rendering the Commonwealth Court
powerless to enter judgment.” (Doc. 66, at 1). Second, Nottingham filed a motion for relief
from judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure and 28 U.S.C. §
1655, “for not being Mirandized and on the basis of insufficient service of process.” (Doc. 67,
at 1). Next, on September 13, 2021, Nottingham filed a motion to strike Defendants’ default
judgment “for the lack of probable cause” and insufficient service. (Doc. 68, at 1). Lastly,
Nottingham filed a “motion to strike default judgment” for lack of jurisdiction, requesting
relief “for a fatal defect in the judgment for clear error of law and manifest abuse of discretion
for insufficient service of process as admitted by the Commonwealth of Pennsylvania
Attorney General.” (Doc. 69, at 1).
In support of his requests, Nottingham attaches a letter dated December 28, 2021, from
the Office of Attorney General addressed to the Clerk of Court for the Third Circuit, regarding

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civil action: Nottingham v. Attorney General of Pennsylvania, No. 21-CV-3298 (3d Cir. filed Dec.
17, 2021). (Doc. 69-1, at 1). The originating District Court case for this appeal is a different
civil action in the Middle District before Justice Connor: Nottingham v. Shapiro, No. 1:21-CV00396 (M.D. Pa. filed Mar. 3, 2021). In that case, Nottingham filed a § 1983 complaint seeking
monetary damages for civil rights violations in connection to an alleged pattern of police,
prosecutorial, and judicial misconduct. Nottingham v. Shapiro, No. 1:21-CV-00396 (M.D. Pa.
Mar. 3, 2021), ECF No. 1. Judge Connor dismissed the action without leave to amend
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be
granted. Nottingham v. Shapiro, No. 1:21-CV-00396 (M.D. Pa. Nov. 19, 2021), ECF No. 58.
In addition, Nottingham also attaches a docket report from a criminal matter before the Court
of Common Pleas of Lycoming County: Commonwealth v. Nottingham, No. CP-41-CR0001190-2015 (Lycoming Cnty. Ct. Com. Pl.). (Doc. 69-1, at 4).
Construing Nottingham’s pleadings liberally, it appears that the instant filings do not
challenge the Court’s dismissal of this action. Instead, Nottingham appears to argue, in part,
that his Pennsylvania state court conviction should be overturned for failure to properly
Mirandize him and insufficient service of process. (Doc. 66, at 1; Doc. 67, at 1; Doc. 68, at 1;
Doc. 69, at 1). Title 28 U.S.C. § 2244 provides that before a petitioner seeking habeas corpus
relief from a state court judgment under 28 U.S.C. § 2254 for a second time files their “second
or successive application,” they must first “move in the appropriate court of appeals for an
order authorizing the district court to consider the application.” See Tyler v. Cain, 533 U.S.
656 (2001). Here, Nottingham has already made one application for habeas corpus relief in
this Circuit under 28 U.S.C. § 2254. See Nottingham v. Gray, No. 4:18-CV-02002 (M.D. Pa.
filed Oct. 16, 2018). A review of the United States Court of Appeals for the Third Circuit filing

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records reveals no pending 28 U.S.C. § 2244(b)(3) motions for leave to file a second or
successive § 2254 petition, nor has the Third Circuit previously granted any such motion filed
by Nottingham. Because Nottingham has not obtained authorization to file a second or
successive § 2254 petition, Nottingham’s requests from relief from judgment and DENIED.
(Doc. 66; Doc. 67; Doc. 68; Doc. 69).
III.

CONCLUSION
For the foregoing reasons, Nottingham’s motion to strike is DENIED. (Doc. 65). In

addition, Nottingham’s petition to open default judgment, motion for relief from judgment,
petition to strike Defendants’ default judgment, and motion to strike default judgment are
DENIED. (Doc. 66; Doc. 67; Doc. 68; Doc. 69).
An appropriate Order follows.

s/ Karoline Mehalchick

Dated: May 6, 2022

KAROLINE MEHALCHICK
Chief United States Magistrate Judge

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