2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-11-2010

Alan Scott v. Fairton FCI

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4171

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Recommended Citation

"Alan Scott v. Fairton FCI" (2010). 2010 Decisions. Paper 1361.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4171

___________

ALAN N. SCOTT,

 Appellant

v.

FAIRTON FCI, Warden

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 09-cv-00929

(Honorable Renée Marie Bumb)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 6, 2010

Before: SCIRICA, JORDAN and GREENBERG, Circuit Judges.

(Filed:May 11, 2010)

_________

OPINION OF THE COURT

_________

PER CURIAM.

 In March 2009, federal prisoner Alan Scott filed a pro se habeas petition in the

District Court pursuant to 28 U.S.C. § 2241. Scott alleged that he had been denied

admission into FCI-Fairton’s Residential Drug Abuse Program (“RDAP”) despite
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evidence that he had previously abused marijuana and heroin. Scott also claimed that he

was eligible for a sentence reduction pursuant to 18 U.S.C. § 3621, which provides that

the Bureau of Prisons (“BOP”) may reduce, by as much as one year, the prison term of a

nonviolent offender who successfully completes a residential substance abuse treatment

program. 18 U.S.C. § 3621(e)(2)(B).

Shortly after Scott filed his petition, a back-and-forth ensued between the District

Court and himself. On three separate occasions, the court entered a sua sponte order

dismissing his petition and he subsequently submitted new filings amending his petition

and/or challenging the court’s order. These developments occurred without the BOP’s

participation in the case, for it appears that it had yet to be served.

This case ultimately culminated in a sua sponte order entered by the District Court

on September 14, 2009. The court, considering Scott’s then most recent round of filings,

concluded that these new submissions, when compared to his earlier filings, “asserted a

factually different scenario.” (Dist. Ct. Order of Sept. 14, 2009, at 3.) As such, the court

closed the case, and directed the clerk to open a new habeas proceeding and docket

Scott’s most recent round of filings in that new proceeding. The court further directed the

clerk to serve all of Scott’s filings on the BOP, and ordered that the BOP answer those

filings docketed in the new case. That new case currently remains pending before the
The District Court entered those two earlier orders on May 26, 2009, and July 17, 1

2009, respectively. Scott does not challenge the District Court’s order entered on April

24, 2009, which dismissed his habeas petition without prejudice because much of the

petition was illegible.

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District Court. (See Dist. Ct. Civ. No. 1:09-cv-04710.) Scott now seeks review of the

District Court’s September 14, 2009 order, as well as two of the earlier orders.1

A district court order that does not resolve all of a petitioner’s claims in a given

action is generally not immediately appealable unless the court certifies the order as a

final judgment pursuant to Fed. R. Civ. P. 54(b). See Hill v. City of Scranton, 411 F.3d

118, 124 (3d Cir. 2005). In this case, neither the court’s September 14, 2009 order, nor

any of its earlier orders, resolved all of his claims, for he still has claims pending before

the court. That the District Court closed Scott’s original habeas proceeding and opened a

new habeas proceeding to address those pending claims does not change this result. 

Although the court concluded in its September 14, 2009 order that Scott’s then most

recent set of filings, when compared to his earlier filings, “asserted a factually different

scenario,” we conclude that his legal claims did not change. Indeed, Scott’s efforts to

obtain habeas relief had centered around, and continued to center around, his claims that

he should have been admitted to RDAP, and that he is eligible for a § 3621 sentence

reduction upon his completing that program. Accordingly, because the District Court did

not certify any of the challenged orders pursuant to Rule 54(b), they are not appealable at
Although the collateral order doctrine allows appellate review of a “small class” 2

of interlocutory orders, see Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49,

54 (3d Cir. 1991), that doctrine does not apply here.

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this time. Those orders may be reviewed on appeal when the District Court has issued a 2

final judgment in Scott’s pending proceeding.

In light of the above, we will dismiss this appeal for lack of appellate jurisdiction. 

Scott’s motion to expedite the appeal is denied as moot.