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explaining that a motion seeking reconsideration of an interlocutory order “is necessarily brought pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.”
Summary of this case from Price v. United StatesOpinion
Civil Action 3:18-cv-01096
11-23-2022
RICKY TEJADA, Plaintiff, v. SUPERINTENDENT DELBALSO, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR., United States Magistrate Judge
This is a prisoner civil rights action, brought by an incarcerated plaintiff, Ricky Tejada, against several prison officials, and seeking an award of damages under 42 U.S.C. § 1983.
On April 28, 2022, the court entered an opinion and order granting in part and denying in part a motion for summary judgment filed by the defendants. (Doc. 242; Doc. 243.) The court denied the defendants' motion for summary judgment with respect to the following claims, which remain pending: (a) an Eighth Amendment excessive force claim concerning a July 26, 2018, van incident; (b) First Amendment retaliation claims based on property confiscation on May 31, 2016, and events of July 26, 2018; and (c) related supervisory, conspiracy, and John Doe claims.
The court granted the motion for summary judgment with respect to the remainder of the plaintiff's claims. One of those claims was a First Amendment access-to-courts claim, in connection with which the plaintiff eventually claimed that one of the defendants, Lieutenant Wall, delayed mailing a notice of appeal in his state PCRA proceedings.The PCRA court had denied his petition on April 7, 2016. The plaintiff alleged that he presented his notice of appeal to prison officials for mailing on or about April 29, 2016, but Lieutenant Wall delayed mailing it out until May 9, 2016-after the time to appeal had expired. The notice of appeal was apparently received and docketed by the Superior Court of Pennsylvania on May 25, 2016.
Although the plaintiff's pro se second amended complaint asserted one or more First Amendment access-to-courts claims, it did not allege any facts regarding this particular incident. The plaintiff articulated this factual basis for relief for the first time in his objections to our report recommending that summary judgment be granted in favor of the defendants. In considering the plaintiff's objections, the court addressed this newly articulated basis for relief and overruled the plaintiff's objections on multiple, alternative grounds.
The court granted summary judgment in favor of the defendants with respect to the plaintiff's First Amendment access-to-courts claims. In doing so, the court discussed this particular factual basis for relief advanced by the plaintiff for the first time in his objections. First, the court noted that the second amended complaint did not plead any facts related to this alleged delay in mailing of his notice of appeal by prison officials, and it noted that a plaintiff is not permitted to raise a new legal theory for the first time in his objections to a report and recommendation or otherwise amend a complaint in his objections. Second, the court noted that there was no evidence to support the plaintiff's claim that his appeal was denied as untimely due to the alleged delay in mailing of his notice of appeal. The court discussed the documentary evidence submitted by the plaintiff, finding it lacking, and noted that the plaintiff filed several PCRA appeals, one of which was withdrawn by the plaintiff and the rest of which were dismissed for failure to file appellant's briefs on the merits. Based on the foregoing, the court concluded that the record did not support the plaintiff's assertion that Lieutenant Wall's failure to timely mail the notice of appeal caused the plaintiff's PCRA appeal to be denied.
Now before the court is a pro se motion by the plaintiff for reconsideration of the court's order granting summary judgment in favor of the defendants, limited to this single First Amendment access-to-courts claim. (Doc. 247.) That motion is fully briefed and ripe for decision. (Doc. 248; Doc. 250; Doc. 254.)
Because the plaintiff's motion seeks reconsideration of an interlocutory order granting partial summary judgment, it is necessarily brought pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. See Qazizadeh v. Pinnacle Health Sys., 214 F.Supp.3d 292, 295 (M.D. Pa. 2016) (“[M]otions for reconsideration of interlocutory orders- whether denials of summary judgment, grants of partial summary judgment, or any other non-final orders-are motions under Federal Rule of Civil Procedure 54(b).”). Under Rule 54(b), “[a]n order that does not dispose of every claim in an action ‘may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.'” Clark Distrib. Sys., Inc. v. ALG Direct, Inc., 12 F.Supp.3d 702, 717 (M.D. Pa. 2014) (quoting Fed.R.Civ.P. 54(b)); see also Qazizadeh, 214 F.Supp.3d at 295. Reconsideration of interlocutory orders “may be had even if a movant cannot show an intervening change in controlling law, the availability of new evidence that was not available when the court issues the underlying order, or ‘the need to correct a clear error of law or fact or to prevent manifest injustice.'” Qazizadeh, 214 F.Supp.3d at 295 (quoting Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). “Instead, the court may permit reconsideration whenever ‘consonant with justice to do so.'” Id. (quoting St. Mary's Area Water Auth. v. St. Paul Fire & Marine Ins. Co., 412 F.Supp.2d 630, 632 (M.D. Pa. 2007)); see also Clark Distr. Sys., 12 F.Supp.3d at 717 (citing United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). Nevertheless,
[b]efore entertaining a motion for reconsideration of an interlocutory order, the movant must still establish good cause for why the court should revisit its prior decision. Moreover, whether involving a final or interlocutory order, a motion for reconsideration is not to be used as a means to reargue matters already argued and disposed of or as an attempt to relitigate a point of disagreement between the Court and the litigant. A reconsideration motion should not be used to try to get a second bite at the apple or to raise new arguments or evidence that could have been proffered prior to the issuance of the order in question.Qazizadeh, 214 F.Supp.3d at 295-96 (citations and internal quotation marks omitted).
In opposition, the defendants first argue that the plaintiff's motion for reconsideration was untimely filed. Under our local rules, motions for reconsideration generally must be filed within fourteen days after entry of the order for which reconsideration is sought. See M.D. Pa. L.R. 7.10 (“Any motion for reconsideration or reargument must be accompanied by a supporting brief and filed within fourteen (14) days after the entry of the order concerned.”); see also Nittany Outdoor Advertising, LLC v. Coll. Twp.,179 F.Supp.3d 436, 439 (M.D. Pa. 2016) (“Local Rule 7.10 applies to motions for reconsideration brought pursuant to Federal Rules of Civil Procedure 54(b) or 60(b).”). See generally United States ex rel. Streck v. Allergan, Inc., 288 F.R.D. 88, 91 (E.D. Pa. 2012) (“[L]ocal rules are binding on the district court unless there is a justifiable reason to excuse their command.”).
Here, the court's order granting partial summary judgment was entered on April 28, 2022, and a service copy was contemporaneously mailed to the incarcerated plaintiff. (Doc. 242; Doc. 243.) Around that same time, however, the petitioner was transferred from the Pennsylvania state prison where he had been incarcerated to a Delaware state prison, presumably to serve an unrelated state sentence imposed by that state's courts. (Doc. 244; see also Doc. 245.) As a consequence, the service copy of the court's opinion and order granting partial summary judgment was returned by the postal service as undeliverable on May 9, 2022. (Doc. 246.) The clerk promptly remailed this service copy of the court's opinion and order to the plaintiff at his new address in Delaware, and he allegedly received it on May 11, 2022.
The incarcerated plaintiff's pro se motion for reconsideration was received and docketed by the clerk on May 25, 2022, but it was constructively filed on May 18, 2022-the date when Tejada signed it and presented it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988); see also Moody v. Conroy, 680 Fed. App'x 140, 144 (3d Cir. 2017) (per curiam) (“Under the prison mailbox rule, . . . a pleading is deemed filed at the time a prisoner executes it and delivers it to prison authorities for mailing.”). Although this was more than fourteen days after entry of the court's order granting partial summary judgment, it was only nine days after the clerk served it by mail addressed to the plaintiff's current, correct mailing address. Under these circumstances, we find it justifiable to excuse the late filing. See Streck, 288 F.R.D. at 91. In particular, we find that the plaintiff has demonstrated good cause for an extension and excusable neglect for his failure to comply with the usual 14-day deadline for filing a motion for reconsideration under the local rules. See Fed.R.Civ.P. 6(b)(1)(B).
Nevertheless, turning to the substance of the plaintiff's motion, we find no reasonable basis for reconsideration here. The plaintiff has attached additional documentation to support his contention that the delayed mailing of his notice of appeal caused the dismissal of his PCRA appeal: a copy of an order by the state appellate court directing him to show cause why the appeal should not be quashed as untimely filed and a copy of an inmate request to staff member inquiring into the status of the mailing of his notice of appeal.
Tejada directed this request to Lieutenant Wall on May 9, 2016. Lieutenant Wall appears to have responded on May 16, 2016, stating only that his mail was placed in the mailbox after Wall approved it.
But the plaintiff has failed to establish good cause for why the court should revisit its prior decision. See Qazizadeh, 214 F.Supp.3d at 295. In originally deciding this issue, the court expressly noted that the second amended complaint did not plead any facts raising this particular claim, and it noted that a plaintiff is not permitted to raise a new legal theory for the first time or amend his pleadings in his objections to a report and recommendation. The plaintiff's motion papers do not address this basis for rejecting the plaintiff's claim at all.
In the alternative, the court considered the claim and found no evidence to support it, noting in particular that none of the plaintiff's several PCRA appeals was quashed as untimely filed-one was voluntarily withdrawn by the plaintiff and the rest were dismissed for failure to file an appellant's brief on the merits. The plaintiff now submits a copy of an order by the state appellate court that directed him to show cause why the appeal should not be quashed as untimely. But the state court docket indicates that Tejada in fact responded to that order to show cause, and that the state court ultimately dismissed the appeal for failure to file a brief. The appeal was not quashed as untimely. Whether prison officials timely mailed his notice of appeal or not, any such delay simply did not cause him to lose the opportunity pursue a nonfrivolous and arguable claim on appeal. That opportunity was lost due to his failure to comply with other procedural requirements on appeal.
We find no reasonable basis for reconsideration. Accordingly, we recommend that the plaintiff's pro se Rule 54(b) motion for reconsideration (Doc. 247) be DENIED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 23, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.