DEGENES v. MUELLER et al

Filing 73

MEMORANDUM OPINION setting forth the reasons the motions to reopen 69 70 72 and motion for appointment of counsel 71 will be DENIED. An appropriate order will be entered. Signed by Judge Joy Flowers Conti on 5/11/2020. (kjm)

Case 2:11-cv-00916-JFC Document 73 Filed 05/11/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTHONY ANGELO DEGENES,
Plaintiff,
v.
FEDERAL BUREAU OF
INVESTIGATION,
BRENTWOOD BOROUGH,
Defendants.

) CIVIL ACTION NO. 11-916
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MEMORANDUM OPINION
CONTI, Senior District Judge
I.

Introduction

This case was filed under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522
and the Pennsylvania Right–to–Know Law, 65 Pa. Cons. Stat. §§ 67.101 et seq., 1 by pro se
plaintiff Anthony Angelo Degenes (“Degenes”). After this case was closed, Degenes filed
three letters, which the court construes as motions to reopen his case against defendants
Federal Bureau of Investigation (“FBI”) and Brentwood Borough (“Brentwood”) under
Federal Rule of Civil Procedure 60(b). (ECF Nos. 69, 70, 72.) He also filed a fourth letter

Degenes in the second amended complaint asserted a claim against Brentwood
under the Civil Rights Act of 1964, 42 U.S.C. § 1983. Degenes’ requests to reopen his
case, however, concern only his claims based upon his requests for information from
the FBI and Brentwood. He does not address his § 1983 claim in his letters to reopen
his case.

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that this court construes as a motion for appointment of attorney in a case not-yet-filed with
this court. (ECF No. 71.)
For the reasons set forth in this opinion, Degenes’ requests to reopen his case will
be denied because his requests to reopen his case, which were made more than seven
years after this court dismissed his claims against the FBI and Brentwood with prejudice,
were untimely filed. Degenes’ request for an attorney to represent him with respect to a
prospective case not-yet-filed with this court will be denied because there is no case
pending before this court and the court lacks jurisdiction over any such motion.
II.

Procedural History

The full procedural history of this case is set forth in the court’s opinions dated January
27, 2012, and September 27, 2012. (ECF Nos. 44, 65.) The court in this opinion sets forth
only the procedural history relevant to the disposition of Degenes’ pending requests to reopen
his case and for appointment of attorney.
In 2011, the FBI and Brentwood filed motions with this court arguing that the claims
asserted against them by Degenes in the amended complaint should be dismissed. (ECF
Nos. 28, 31.) On January 27, 2012, this court, among other things: 2
(A) dismissed with prejudice Degenes’ Right-to-Know claim against
Brentwood for lack of subject-matter jurisdiction because Pennsylvania
has exclusive jurisdiction over those claims;

Degenes originally filed this case against Brentwood, the Brentwood Police
Department, the FBI, Robert Mueller (“Mueller”), director of the FBI, and Michael
Rodriguez (“Rodriguez”), an FBI agent. (ECF No. 1.) The court in its opinion dated
January 27, 2012, dismissed this case with prejudice against the Brentwood Police
Department because Degenes named Brentwood as a defendant and the Brentwood
Police Department, which is an administrative arm of Brentwood, is not a proper
defendant under § 1983. (ECF No. 44 at 8-9.) The court dismissed this case with
prejudice against Mueller and Rodriguez because individual defendants are not proper
defendants under the FOIA. (Id. at 12.) The FBI and Brentwood were the remaining
defendants in the case.
2

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(B) dismissed with prejudice the FOIA claim against Brentwood because
FOIA claims cannot be asserted against state entities;
(C) dismissed without prejudice the § 1983 claim asserted against Brentwood
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6);
and
(D) dismissed with prejudice the Right-to-Know claim against the FBI for lack
of subject-matter jurisdiction because Pennsylvania has exclusive
jurisdiction over those claims, which can only be asserted against state
entities.
(ECF No. 44.) The court in the opinion dated January 27, 2012, granted Degenes leave to
file a second amended complaint. (Id. at 13.)
On February 24, 2012, Degenes filed a second amended complaint. (ECF No. 46.)
On March 30, 2012, the FBI filed a motion to dismiss the second amended complaint. (ECF
No. 50.) On May 16, 2012, Brentwood—after filing an answer and affirmative defenses, (ECF
No. 56)—filed a motion for judgment on the pleadings, (ECF No. 59), in which it incorporated
an argument that this court lacked subject-matter jurisdiction over the claims asserted against
it. On September 27, 2012, this court:
(A) granted with prejudice the motion for judgment on the pleadings filed by
Brentwood with respect to the § 1983 claim because Degenes failed to set
forth factual allegations in support of that claim (ECF No. 65 at 8);
(B) did not grant Degenes leave to amend against Brentwood because he was
given two opportunities to amend his complaint to set forth factual
allegations sufficient to show plausibly that Brentwood violated his § 1983
rights but he failed to do so and, therefore, further amendment would be
futile (id.);
(C) granted the motion to dismiss filed by the FBI and dismissed the FOIA claim
for lack of subject-matter jurisdiction because Degenes did not exhaust his
administrative remedies before filing this federal case (id. at 11);
(D) explained that that even if Degenes exhausted his administrative remedies,
the court was without subject-matter jurisdiction because Degenes did not
plausibly allege that the FBI withheld from him any documents responsive
to his requests (id. at 12-13); and
(C) closed this case (id. at 14).
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On November 1 and 19, 2012, Degenes filed motions for reconsideration of the court’s
opinion and order dismissing with prejudice his claims against the FBI and Brentwood. (ECF
Nos. 68-69.) On November 26, 2012, this court denied the motions for reconsideration
because Degenes did not set forth any argument or make any factual allegations addressing
the applicable grounds for relief. (ECF No. 70.)
In October 2019, Degenes sent a letter to the Chief District Judge of this court, which
provided, in pertinent part:
Your Honor, this is my Case Number: 2:11-cv-00916, Document 65, Filed 927-12, Before Judge Joy Flowers Conti. Judge Conti's Order is attached.
Your Honor, I want to point out that Judge Conti closed my case because I
wasn't able to furnish the Court with my Right to Know Records. I let the 30 day
time period expire and as result, I couldn't receive those records.
I didn't know that after a certain amount of time I could refile, which I did, and I
now have my Right to Know Records. Copy is attached: Office of District
Attorney, Allegheny County, February 6, 2018.
I'm requesting that Your Honor, permit me to reopen my case. I'm also asking
the Court to assign me an attorney. I will pay for the attorney.
(ECF No. 69 at 1.) The letter was filed as a notice on this court’s docket on November 8,
2019. (Id.) On December 30, 2019, the same letter and attachments were filed on the docket
as a motion to reopen this case. (ECF No. 70.) The court construes the above-referenced
letters as motions to reopen this case under Rule 60(b).
On April 22, 2020, the court received a letter from Degenes, which provided, in
pertinent part:
I'm about to bring a lawsuit against the FBI, particularly, David Hardy for
Misconduct of an FBI Agent. I'm requesting an attorney be appointed to me.
I'm not a lawyer and I know nothing about trying to be one. I don't feel confident
if I go Pro Se.
I want to mention that in July of 2011, I initiated a suit, Case No: 2:11-cv-9116.
Judge Joy Conti closed my case because I wasn't able to get my Right to Know
Records in time.
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I want to point out my Complaint is completely different than it was back then.
I would have had this matter resolved many years back but since I'm not an
attorney I didn't know what to do.
(ECF No. 71 at 1.) The court construes the foregoing letter as a request to appoint counsel
with respect to a complaint that has not been filed with this court.
On April 29, 2020, this court received a fourth letter from Degenes, which provides, in
pertinent part:
Your Honor, on October 12, 2019, I initially sent my request to have my Case
reopen to Justice David Cercone. I addressed Justice Cercone as President
Judge. I called Judge Cercone's office and was told the title is Chief Justice.
I was also told that the judge who handled my Case originally was the judge I
was to contact. That would be you, Your Honor.
Your Honor, I want to point out that you closed my Case because I wasn't able
to furnish the Court with my Right to Know Records. I let the 30 day time limit
expire because I was missed informed and this was the first time I had ever
requested Right to Know Records, and as a result, I couldn't receive those
records.
I didn't know that after a certain amount of time I could refile, which I did, and I
now have my Right to Know Records. Copy is attached: Office of District
Attorney, County of Allegheny, February 6, 2018.
I'm requesting that Your Honor reopen my Case. I'm also requesting that I can
amend my Complaint. I'm not an attorney, I know nothing about the law, so I'm
therefore, requesting an attorney be appointed for me. I will pay for the
attorney.
If, Your Honor, wants to see a copy of my revised Complaint, I'll furnish you
with a copy.
(ECF No. 72.) The court construes the foregoing letter as a motion to reopen this case under
Rule 60(b).
III.

Standard Applicable to Pro Se Plaintiffs

Pro se plaintiffs are held to a less stringent standard than individuals represented by
counsel. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“pro se litigants are
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held to a lesser pleading standard than other parties”). A pro se plaintiff, however, is still
required to adhere to standard rules of civil procedure. See McNeil v. United States, 508
U.S. 106, 113 (1993); Haines v. Kerner, 404 U.S. 519, 520 (1972).
IV.

Discussion
A. Motions to Reopen under Rule 60(b)

Rule 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). “A motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order
or the date of the proceeding.” FED. R. CIV. P. 60(c)(1). Whether a plaintiff filed its Rule
60(b)(4), (5), or (6) motion “within a reasonable time” may be determined “by considering the
interest of finality, the reason for delay, the practical ability of the litigant to learn earlier of the
grounds relied upon, and the consideration of prejudice, if any, to other parties.” Ortiz v.
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Pierce, No. 08-487, 2014 WL 3909138, at *1 (D. Del. Aug. 11, 2014). “[The] movant . . . bears
the burden of establishing entitlement to [Rule 60(b)(6)] equitable relief[,]” Cox v. Horn, 757
F.3d 113, 122 (3d Cir. 2014) (citing Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir.
1977)), and the burden to show that he or she filed the Rule 60(b) motion within a reasonable
time, Rodriguez v. Kuhlman, No. 98 CIV. 63 LAP JCF, 2013 WL 4778173, at *1 (S.D.N.Y.
Sept. 6, 2013); Pierre v. Legal Sea Foods, Inc., No. CIV.A. 11-10710-LTS, 2013 WL 2181063,
at *4 (D. Mass. May 17, 2013).
Here, on September 27, 2012, this court in an order dismissed with prejudice
Degenes’ claims asserted against the FBI and Brentwood. (ECF No. 65.) On November 26,
2012, the court denied Degenes’ motions for reconsideration of that order. (ECF No. 70.)
Degenes filed his first request to reopen this case on November 8, 2019, i.e., approximately
seven years after this case was dismissed with prejudice and closed. Degenes, therefore,
cannot show he is entitled to relief under Rule 60(b)(1), (2), or (3) because a request for
relief under those provisions must be filed no more than one year after the court’s order
dismissing the case. Degenes does not argue that any judgment in this case is void or has
been satisfied. Thus, neither Rule 60(b)(4) nor (5) apply to this case.
Degenes’ entitlement to relief—if any—must be grounded in Rule 60(b)(6), and he
must show that he has sought relief in this case within a reasonable time of the entry of the
court’s order dismissing his case with prejudice. As discussed above, to determine whether
a Rule 60(b) motion was filed within a reasonable time, the court must consider the interest
of finality, the reason for delay, the practical ability of the litigant to learn earlier of the
grounds relied upon, and the consideration of prejudice, if any, to other parties. With respect
to the court’s interest in finality, Degenes waited approximately seven years to seek relief
from the court’s dismissal of his claims with prejudice against the FBI and Brentwood. The
court’s interest in finality after approximately seven years is significant and weighs against
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granting Degenes relief. See Lewis v. Cty. of San Bernardino, No. 512CV01007UASK, 2017
WL 6883870, at *1 (C.D. Cal. Oct. 23, 2017) (“In a case closed nearly five years ago, “the
interest in finality” of judgment weighs decidedly against post-judgment relief.”); AMCO Ins.
Co. v. Swagat Grp., LLC, No. 07-3330, 2013 WL 12244758, at *6 (C.D. Ill. June 20, 2013)
(“The interest in finality and the prejudice to Plaintiff weigh heavily in favor of finding the
Motion[, which was filed three years after final judgment was entered,] was not brought
within a reasonable time.”); Nance v. Pleasant Valley State Prison, No. 1:98-CV-06281AWI, 2010 WL 2635640, at *2 (E.D. Cal. June 29, 2010) (“Certainly the interest in finality
weighs against Plaintiff given the sheer number of years[, i.e., five years since final
judgment was affirmed on appeal,] which have passed.”).
With respect to the reasons offered for the seven-year delay, Degenes asserts that
he “knows nothing about the law[,]” was misinformed about the “30 day time limit” with
respect to his Right-to-Know records, and did not know “he could refile.” (ECF No. 72.) The
reasons offered by Degenes, however, are not sufficient to satisfy his burden to show the
delay was reasonable. See Ford v. United States, No. CIV. 08-4932 JBS, 2012 WL
4434734, at *3 (D.N.J. Sept. 24, 2012) (explaining that “‘ignorance of the law and
carelessness in its application are not sufficient grounds’ for relief under Rule 60(b)”)
(quoting Brandl v. ACE USA, No. 10–3512, 2011 WL 442156, at *1 n. 1 (E.D. Pa. Feb.7,
2011)). Degenes also did not assert any factual allegations to support his asserted reasons
for delay or to show how those assertions justify the reasonableness of a seven-year-delay
in filing the letters requesting this court reopen this case. See INS. Co. of Greater N.Y. v.
Fire Fighter Sales & Serv. Co., 312 F.R.D. 394, 402 (W.D. Pa. 2015) (denying motion to
vacate where, among other things, the plaintiff “failed to present any reason for its sevenmonth delay” in raising the basis for its Rule 60(b) motion) (citing Azbuko v. Bunker Hill
Cmty. Coll., 442 F. App’x 643, 644 (3d Cir.2011) (per curiam) (“[B]ecause [the plaintiff] has
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provided no explanation for his delay in filing,...he has not filed his motion within a
reasonable time of the order that he seeks to challenge.”)). Under those circumstances, this
factor weighs against reopening this case.
With respect to Degenes’ practical ability to learn of the grounds relied upon, he
asserts that he did not know he could refile under the Right-to-Know laws. (ECF No. 72.)
Degenes, however, does not point to any evidence to show why he could not learn about
his rights to file under the Right-to-Know laws in a more timely fashion, i.e., before the
passage of seven years since this court dismissed his claims against the FBI and
Brentwood with prejudice. This factor weighs against a finding that Degenes filed his
requests to reopen this case within a reasonable time.
With respect to prejudice, if this court were to grant Degenes’ requests and reopen
this case approximately seven years after it was dismissed with prejudice, there is a risk
that the FBI and Brentwood would be prejudiced by the passage of time, loss of evidence,
and failing memory of the relevant witnesses. Degenes has the burden to show he filed his
requests to reopen within a reasonable time, and the court did not receive any evidence
with respect to this factor. This factor, therefore, weighs in favor of the court denying
Degenes’ requests.
Based upon the foregoing, the court’s interest of finality, the reason for delay,
Degenes’ practical ability to learn earlier of the grounds relied upon, and the consideration of
prejudice to the FBI and Brentwood, all weigh in favor of a finding that Degenes’ requests for
this court to reopen the case were not filed within a reasonable time of the court dismissing
this case with prejudice. 3

It is unclear to the court from Degenes’ letters exactly which claims Degenes
intends to reassert against the FBI and Brentwood if this court were to grant his request
to reopen this case. This court dismissed with prejudice the Right-to-Know law claims

3

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Under those circumstances, Degenes’ requests to reopen this case will be denied.
Having found Degenes’ requests to reopen this case were not filed within a reasonable time,
the court need not consider whether he satisfied his burden to show any reason justifying
relief from final judgment under Rule 60(b)(6). 4
B. Motion for Appointment of Attorney
“The existence of a ‘case or controversy’ is a ‘condition precedent to the proper
exercise of judicial power by a federal court….’” Expotech Eng'g, Inc. v. Cardone Indus.,
Inc., No. CV 19-1673, 2020 WL 1694543, at *7 (E.D. Pa. Apr. 7, 2020) (quoting Skelly Oil
Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). 5 In Degenes’ letter dated April 22,
2020, he requests the appointment of counsel for a case not-yet-filed with this court against
David Hardy (“Hardy”). The above-captioned case was filed against the FBI and Brentwood,
among others. Degenes in his letter requesting counsel asserts he is going to file a lawsuit
(as opposed to an amended complaint in this case) against Hardy, who was not a named

for lack of subject-matter jurisdiction, the FOIA claims for lack of subject-matter
jurisdiction, and the § 1983 claim asserted against Brentwood for repeated failure to
state a claim upon which relief may be granted.
To the extent Degenes in his letters requesting the court to reopen this case asks
the court to appoint him counsel, the requests for appointment of counsel are denied as
moot because Degenes is not entitled to relief under Rule 60(b).
4

5

The Third Circuit Court of Appeals has explained:
The constitutional requirement that the exercise of judicial power depends
upon the existence of a case or controversy has three elements: “(1) a legal
controversy that is real and not hypothetical, (2) a legal controversy that
affects an individual in a concrete manner so as to provide the factual
predicate for reasoned adjudication, and (3) a legal controversy with
sufficiently adverse parties so as to sharpen the issues for judicial
resolution.” Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir.
1987) (quoting Dow Chem. Co. v. EPA, 605 F.2d 673, 678 (3d Cir. 1979)).

United Steel Paper & Forestry Rubber Mfg. Allied Indus. & Serv. Workers Int'l Union
AFL-CIO-CLC v. Gov't of Virgin Islands, 842 F.3d 201, 207–08 (3d Cir. 2016).
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defendant in this case. 6 There is, therefore, no case or controversy pending between
Degenes and Hardy upon which this court can exercise its judicial powers to decide
Degenes’ motion to appoint counsel and request that counsel be appointed to represent him
in a prospective case against Hardy. The motion to appoint counsel will be denied with
prejudice. 7 To the extent Degenes files a new federal case against Hardy and can show his
entitlement to court-appointed counsel in that case, he may renew his request for courtappointed counsel in that case.
V.

Conclusion

Degenes’ requests to reopen this case were untimely filed. He is, therefore, not entitled
to relief under Rule 60(b), and his requests to reopen this case (ECF Nos. 69, 70, 72) will be
denied. The court is without authority to exercise its judicial power and decide the motion for
appointment of counsel in the yet-to-be filed case because there exists no case or controversy
between Degenes and Hardy. The request for appointment of counsel (ECF No. 71) will,
therefore, be denied. An appropriate order will be entered.
BY THE COURT,
Dated: May 11, 2020

/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Senior United States District Court Judge

Degenes in the second amended complaint described conduct by Hardy, which
did not implicate a claim against Hardy. (ECF No. 46 ¶¶ 49-50.) As described above,
Degenes in his motion to appoint counsel asserts he intends to file a lawsuit against
Hardy. If Degenes meant that he intended to file an amended complaint against Hardy
in the above-captioned case, the motion to appoint counsel would be denied as moot
because Degenes—for the reasons already set forth in this opinion—is not entitled to a
reopening of this case under Rule 60(b).

6

Even if there was a case or controversy pending between Degenes and Hardy,
Degenes has not shown that he is an indigent litigant for whom this court may request
that counsel be appointed. 28 U.S.C. § 1915(e)(1); Tabron v. Grace, 6 F.3d 147, 153
(3d Cir.1993).
7

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