2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2011

Jose Xenos v. Jeffrey Hawbecker

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3326

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Recommended Citation

"Jose Xenos v. Jeffrey Hawbecker" (2011). 2011 Decisions. Paper 713.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3326

___________

JOSE FREMONDE XENOS,

Appellant

v.

JEFFREY K. HAWBECKER, Sheriff, Northampton County Sheriff Department :

Northampton County; JOHN CAPOBIANCO, Detective, Northampton County Sheriff 

Department: Northampton County; JOE DOE, Detective, Northampton County Sheriff 

Department:Northampton County; ROBERT DOE, Postal Clerk;

ROBERT CORVINO

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 08-03026)

District Judge: Honorable James Knoll Gardner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 3, 2011

Before: JORDAN, GARTH AND BARRY, Circuit Judges

(Opinion filed: August 3, 2011)

___________

OPINION

___________

PER CURIAM.

In this pro se appeal, Jose Xenos challenges the District Court’s dismissal of his 
2

civil rights claims. For the following reasons, we will affirm.

I.

Xenos filed his pro se complaint against Jeffrey Hawbecker, the Sheriff of 

Northampton County; John Capobianco, a detective with the Northampton County 

Sheriff Department; Robert Corvino, an employee of the United States Post Office; and 

an unnamed detective. The complaint asserted that Hawbecker and Capobianco violated

Xenos’s constitutional rights by arresting him in 2007, pursuant to a 1995 bench warrant 

issued by the Northampton Court of Common Pleas after Xenos failed to appear at a 

hearing on a forgery charge that had been filed against him. Xenos challenged his arrest 

and subsequent detention on the basis that the bench warrant was invalid because it had 

expired, the criminal complaint and/or information were invalid, and the state court 

lacked jurisdiction over the criminal proceeding. His claims against Corvino were based 

on Corvino’s alleged improper closure of Xenos’s post office box in 1996 or 1997, and 

the fact that Corvino reported him to law enforcement in 2007, resulting in the challenged 

arrest. In an amendment to his complaint, Xenos clarified that he was suing Hawbecker 

and Capobianco in their individual and official capacities and Corvino in his individual 

capacity only.

Hawbecker and Capobianco moved to dismiss, arguing, among other things, that 

Xenos’s Fourth Amendment claims against them were barred because he pled nolo 

contendre to forgery and his plea has never been vacated. Xenos did not file a response,
3

but indicated his opposition to the motion in a “settlement conference summary” that he 

submitted in advance of a settlement conference scheduled by the Magistrate Judge 

assigned to the case. In a December 23, 2008 order, the District Court granted the motion

to dismiss as unopposed, pursuant to Eastern District of Pennsylvania Local Rule 7.1(c), 

due to Xenos’s failure to file a timely opposition in accordance with the federal and local 

rules. See E.D. Pa. R. 7.1(c) (“In the absence of a timely response, the motion may be 

granted as uncontested . . . .”). 

In the meantime, Corvino moved to amend the summons pursuant to Federal Rule 

of Civil Procedure 12(a)(3), which allows “[a] United States officer or employee sued in 

an individual capacity for an act or omission occurring in connection with duties 

performed on the United States’ behalf” 60 days to respond to a complaint. In his 

motion, Corvino explained that he was seeking representation from the United States 

Attorney’s Office. The District Court granted that motion over Xenos’s objection that 

Corvino should not be entitled to have the United States Attorney represent him. 

Corvino ultimately moved to dismiss. Xenos subsequently filed a motion for 

appointment of counsel and “reinstatement of all dismissed defendants.” While Xenos’s 

motion was pending, the District Court ordered him to respond to Corvino’s motion by a 

given deadline. Xenos responded with a statement in which he asked the District Court 

to construe his pleadings liberally and not to take further action “until effective counsel 

has been assigned.” He also moved to have the United States Attorney dismissed as 
4

counsel for Corvino.

The District Court denied Xenos’s motion for appointment of counsel and 

reinstatement of the dismissed defendants. In the same order, the District Court granted 

Corvino’s motion to dismiss as unopposed, again relying on Local Rule 7.1(c). The 

District Court considered Corvino’s motion to be unopposed, even though Xenos had 

technically responded, because Xenos failed to present a fully developed legal argument 

or include citations to authority in accordance with the local rule.1The District Court 

also ordered Xenos to file an amended complaint identifying the unnamed defendant in a 

manner that would make him amenable to service. When Xenos failed to do so within 

the prescribed time period, the District Court closed the case. Xenos timely appealed. 

II.

The District Court had jurisdiction over Xenos’s claims pursuant to 28 U.S.C. §§

1331 & 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.2 We 

 

1

It appears that the District Court never ruled on Xenos’s motion to disqualify the 

United States Attorney.

2 Hawbecker and Capobianco filed a motion to dismiss for lack of jurisdiction, 

arguing that Xenos may not challenge the December 23, 2008 order dismissing the claims 

against them because he failed to appeal within 30 days of the date that order was entered 

on the docket. That motion is denied. Since the December 2008 order did not resolve 

Xenos’s claims against all of the defendants, and was never certified for appeal pursuant 

to Federal Rule of Civil Procedure 54(b), the order was not immediately appealable. 

Accordingly, Xenos could not have appealed the December 23, 2008 order at the time it 

was entered on the District Court’s docket. Once the District Court finally resolved all of 

the claims against all defendants, the December 23, 2008 order became appealable such 

that we have jurisdiction to address it. See Chao v. Roy’s Constr., Inc., 517 F.3d 180, 
5

exercise de novo review over a district court’s grant of a motion to dismiss. Phillips v. 

Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). To survive dismissal, “a 

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations 

omitted). We may also consider matters of public record in determining whether 

dismissal is appropriate. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). We 

review a district court’s dismissal for failure to comply with a procedural rule for abuse 

of discretion. See Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). 

On appeal, Xenos contends that the District Court erred in holding him “to the 

same standards of [sic] a trained attorney” despite his pro se status. (Appellant’s Br. 3.) 

Presumably, he is challenging the District Court’s reliance on his failure to comply with 

Local Rule 7.1 as a basis for dismissing his claims. We are inclined to agree with Xenos 

that the District Court erred in that regard. 

The District Court’s dismissal of Xenos’s claims as “unopposed,” without any 

analysis under Federal Rule of Civil Procedure 12(b)(6), was “a sanction for failure to 

comply with the local court rule.” See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d 

Cir. 1991). We have suggested that such a sanction should not be invoked lightly when 

the plaintiff is pro se and the record evinces an intent to oppose dismissal, regardless of 

 

187 (3d Cir. 2008) (“[P]rior interlocutory orders merge with the final judgment in a case, 

and the interlocutory orders . . . may be reviewed on appeal from the final order.”) 

(quotations omitted). 
6

the plaintiff’s noncompliance with local procedure. Id. Thus, unless a plaintiff’s failure 

to oppose a motion can truly be understood to reflect that the motion is unopposed – for 

instance, when the plaintiff is represented by counsel – we have expressed a preference 

for an assessment of the complaint on its merits. Id. Furthermore, a district court must 

analyze the relevant factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 

F.2d 863 (3d Cir. 1984), before concluding that the sanction of dismissal is warranted.3 

See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1148 (3d Cir. 1990).

We can understand the District Court’s frustration with Xenos, a repeat filer who, 

at least in this case, used offensive language in many of his submissions. Nevertheless, 

dismissal here was inappropriate. Although Xenos did not file an opposition to 

Hawbecker and Capobianco’s motion, he expressed his opposition in the statement he 

filed in advance of the settlement conference, which reasserted his claims and included

citations to legal authority. Likewise, his response to Corvino’s motion to dismiss 

reflected an intent to oppose the motion, and requested that the District Court refrain 

from acting on the motion to dismiss until counsel was assigned. It is possible that Xenos 

was hoping that his motion for counsel would be granted and that he would be given 

additional time to respond before the District Court disposed of his claims. Given 

 

3

Those factors are (1) the extent of the party’s personal responsibility; (2) 

prejudice to the adversary; (3) any history of dilatoriness; (4) whether the party acted 

willfully or in bad faith; (5) the availability of alternative sanctions; and (6) the 

meritoriousness of the claim or defense. Poulis, 747 F.2d at 868.
7

Xenos’s clear intention to prosecute his case, we find it difficult to conclude that 

dismissal was an appropriate sanction for failure to comply with Local Rule 7.1, 

especially since the District Court did not undertake any analysis of the Poulis factors to 

establish that such a sanction was warranted.

4

We will nevertheless affirm on alternative grounds because Xenos’s claims lack 

merit. See Johnson v. Orr, 776 F.2d 75, 83 n.7 (3d Cir. 1985) (“An appellate court may 

affirm a result reached by the district court on reasons that differ so long as the record 

supports the judgment.”). The public documents submitted by Hawbecker and 

Capobianco in support of their motion to dismiss establish that, in September 1995, a 

Magistrate Judge issued a warrant for Xenos’s arrest after a criminal complaint was filed 

against him. When Xenos failed to appear for a hearing, a District Judge on the 

Northampton County Court of Common Pleas issued a fugitive warrant for his arrest. 

Thereafter, the state court permitted the prosecutor to file an information charging Xenos 

with forgery given Xenos’s fugitive status. While still a fugitive, Xenos corresponded 

with the Criminal Clerk about the charge despite knowing that a warrant had been issued 

for his arrest. He was eventually arrested by Hawbecker and Capobianco in May 2007, 

and ultimately pled nolo contendere to the forgery charge.

Xenos’s challenges to his detention on the basis that the state court lacked 

 

4 Although we conclude that the District Court should not have invoked Local 

Rule 7.1 to dismiss the complaint, we reject Xenos’s assertions that the District Court 

was biased against him and/or civil rights plaintiffs in general.
8

jurisdiction over his criminal case and that the criminal complaint and/or information 

were invalid are barred because success on those claims would necessarily imply the 

invalidity of his conviction. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see 

also Commonwealth v. Darden, 531 A.2d 1144, 1146 (Pa. Super. Ct. 1987) (plea of nolo 

contendre has the same effect as a guilty plea). Heck likewise bars Xenos’s challenge to 

his arrest, which was effectuated pursuant to legal process, i.e., a bench warrant and 

related criminal information.5 Antonelli v. Foster, 104 F.3d 899, 900 (7th Cir. 1997)

(holding that Heck applies when “the confinement of which the plaintiff is complaining is 

preconviction but pursuant to legal process, . . . [such as] a warrant”); see also Wallace v. 

Kato, 549 U.S. 384, 389-90 (2007). But even if Heck did not bar Xenos’s claim that he 

was unlawfully arrested, the claim would fail on its merits because it is based on a 

premise for which there is no legal support, namely, that the 1995 bench warrant expired 

before his arrest in 2007.6 We also conclude that Xenos has failed to allege sufficient 

 

5

In that respect, Xenos’s case is distinguishable from those cases in which a 

plaintiff asserts Fourth-Amendment false arrest and/or false imprisonment claims 

stemming from a warrantless seizure. See Dique v. N.J. State Police, 603 F.3d 181, 187 

(3d Cir. 2010). Since Xenos challenges his arrest and detention pursuant to a warrant and 

criminal information, his claims are more accurately characterized as malicious 

prosecution claims than false imprisonment claims. See Antonelli v. Foster, 104 F.3d 

899, 900 (7th Cir. 1997); see also Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 

1998) (“A claim for false arrest, unlike a claim for malicious prosecution, covers 

damages only for the time of detention until the issuance of process or arraignment, and 

not more.”).

6

The legal authority upon which Xenos relies concerns statutes of limitations for 
9

facts to overcome dismissal of his conspiracy claims.7 Dique, 603 F.3d at 188-89.

In his reply brief, Xenos now contends that his claims against Corvino are based 

exclusively on the fact that Corvino reported him to local law enforcement in 2007, and 

do not concern Corvino’s closure of his post office box. We fail to see how Corvino’s 

identification of Xenos to law enforcement officers states a claim for relief. Xenos does 

not elaborate on that theory, instead focusing all of his efforts on his argument that

Corvino should not have received representation by the United States Attorney. We 

rejected that argument when we denied Xenos’s motion to disqualify the United States 

Attorney from representing Corvino in this appeal, and we see no reason to reconsider 

that ruling now. See 28 C.F.R. § 50.15(a) (“[A] federal employee . . . may be provided 

representation in civil, criminal and Congressional proceedings in which he is sued, 

subpoenaed, or charged in his individual capacity, . . . when the actions for which 

representation is requested reasonably appear to have been performed within the scope of 

the employee’s employment and the Attorney General or his designee determines that 

providing representation would otherwise be in the interest of the United States.”).

 

the prosecution of certain crimes. It appears he is suggesting that, if a defendant fails to 

appear during criminal proceedings and manages to evade authorities for the duration of 

the statute of limitations governing the offenses with which he is charged, he may not 

subsequently be prosecuted for those offenses if he is captured. Nothing in Pennsylvania 

or federal law rewards fugitives in such a manner. 

7 Xenos’s official capacity claims against Hawbecker and Capobianco likewise fail 

because Xenos has not alleged that the asserted constitutional deprivations resulted from 

a policy or custom. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). 
10

Similarly, we adhere to our prior ruling that Xenos is not entitled to counsel on appeal

under Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993). Accordingly, his renewed

request for counsel is denied.

For the foregoing reasons, we will affirm the District Court’s dismissal of Xenos’s 

complaint.