DLD-051 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1933

___________

WILMER B. GAY,

Appellant

v.

CITY OF PHILADELPHIA; 

ROBERT D. SHANNON; 

WILLIAM K. SUTER,

US CLERK FOR US SUPREME COURT; 

COMMONWEALTH OF PENNSYLVANIA; 

BOARD OF PARDONS

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 11-cv-04194)

District Judge: Honorable Mary A. McLaughlin

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

November 29, 2012

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: December 26, 2012)

_________________

OPINION

_________________
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PER CURIAM

Wilmer B. Gay appeals from an order of the United States District Court for the 

Eastern District of Pennsylvania, which denied his motion for leave to proceed in forma

pauperis (“IFP”) and “to gain access to the Court to redress his grievance(s).” Because 

no substantial question is raised by this appeal, we will summarily affirm the District 

Court’s order.

Gay filed a civil complaint in the United States District Court for the Central 

District of California. That court immediately transferred the action to the Eastern 

District of Pennsylvania. Gay then filed an application to proceed IFP, but the Court 

denied the application, finding that he had sufficient funds to pay the full filing fee. 

District Court Order, dkt. #2. Gay filed a motion for reconsideration and for 

“disqualification” of the assigned judge, Judge O’Neill. Judge O’Neill asked the Chief 

Judge to assign another Judge to the matter, and on July 22, 2011, the Chief Judge 

reassigned the case to Judge McLaughlin. District Court Order, dkt. #5. Thereafter, 

Judge McLaughlin denied Gay’s motion for reconsideration, stating that Gay could 

reinstate the case by remitting the filing fee within 30 days. District Court Order, dkt. #7. 

Rather than pay, Gay filed another motion for reconsideration. Judge McLaughlin denied 

the motion by order entered October 13, 2011. District Court Order, dkt. #9. Gay did not 
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file a notice of appeal.1

Several months later, Gay filed a document, captioned in part, “Motion For Leave 

to Proceed In Forma Pauperis in the Above Matter and to Gain Access to the Court to 

Redress his Grievance(s) Concerning an Illegal Arrest, False Imprisonment, and his 

Continued Unlawful Detention . . . .” District Court dkt. #11 (“February 2012 motion”). 

The District Court denied the motion, noting that Gay had “on three or more prior 

occasions while incarcerated had a civil action or appeal dismissed as frivolous, 

malicious, or for failure to state a viable claim,” and that Gay had “failed to plead facts 

which support a reasonable conclusion that he was in imminent danger of serious 

physical injury at the time he filed this civil action . . . .” District Court Order, dkt. #12. 

Gay timely appealed from the order.

The scope of this appeal is quite limited: we only have jurisdiction to review the 

District Court’s order denying Gay’s February 2012 motion, as Gay’s notice of appeal 

was timely only as to that order. Bowles v. Russell, 551 U.S. 205, 214 (2007) (timely 

filing of notice of appeal in a civil case is a jurisdictional requirement). At the time Gay 

filed his February 2012 motion, the case was closed. Gay had missed the Court’s 

deadline for reinstating the case by paying the filing fee by several months. See District 

Court order, dkt. #7. Thus, Gay was asking the District Court to reopen his case. Gay’s 

February 2012 motion once again failed to show that he was in imminent danger of 

 1 Gay filed a petition for a writ of mandamus in our Court, asking that we set aside the 

District Court order assigning the matter to another judge. We denied the petition. In re: 
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serious physical injury. As such, Gay has not shown that the District Court abused its 

discretion when it denied his motion. Jackson v. Danberg, 656 F.3d 157, 162 (3d Cir.

2011) (review of district court’s denial of a motion to reopen is for abuse of discretion). 

We therefore will affirm the District Court’s order.2

 

Wilmer Gay, C.A. 11-4193, Jan. 5, 2012.

2 Gay’s Motion for Service of Process is denied, as Appellees are not participating in this 

appeal. Gay’s letter dated October 30, 2012, construed as a motion to withdraw his 

motion for entry of default, is granted. Gay’s “Motion Demonstrating Government 

Attorney(s) Philadelphia County District Attorney R. Seth Williams and United States 

Attorney Zane D. Memeger Breach of their General Duty of Candor . . .” is denied, as the 

motion raises issues beyond the limited scope of this appeal. Gay’s “Motion to Compel 

Respondents . . . to Make a Reply to Court’s Order . . .” is denied.