2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-20-2011

Rodney Ash v. Phila Prison Sys

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3987

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Recommended Citation

"Rodney Ash v. Phila Prison Sys" (2011). 2011 Decisions. Paper 1942.

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BLD-087 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3987

___________

RODNEY ASH,

Appellant

v.

PHILADELPHIA PRISON SYSTEM; COURT OF COMMON PLEAS OF 

PHILADELPHIA COUNTY; CITY OF PHILADELPHIA; JANE DOE 2; JANE DOE 1; 

JOHN DOE 11; JOHN DOE 10; JOHN DOE 9; JOHN DOE 8; JOHN DOE 7; JOHN 

DOE 6; JOHN DOE 5; JOHN DOE 4; JOHN DOE 3; JOHN DOE 2; JOHN DOE 1; 

THOMAS COSTELLO

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 04-cv-00556)

District Judge: Honorable Petrese B. Tucker

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

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

January 13, 2011

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: January 20, 2011)

_________

OPINION

_________
2

PER CURIAM

Appellant Rodney Ash appeals from the District Court’s order denying his motion 

to reopen the time to file an appeal, and from the Court’s subsequent order denying his 

motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, see United 

States v. Rinaldi, 447 F.3d 192, 195 (3d Cir. 2006), and we review the District Court’s 

orders for abuse of discretion, see id. (order denying motion to reopen); Tai Van Le v. 

Univ. of Pa., 321 F.3d 403, 406 (3d Cir. 2003) (order denying motion for 

reconsideration). For the following reasons, we will summarily affirm the District 

Court’s orders. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

In February 2004, Ash filed a pro se civil rights action pursuant to 42 

U.S.C. § 1983 against the Philadelphia Prison System; Thomas Costello, the 

commissioner of the Philadelphia Prison System; the Philadelphia County Court of 

Common Pleas, and 13 John Doe and Jane Doe defendants. Ash alleged, among other 

things, that while incarcerated he was misdiagnosed with a psychiatric illness and then

subjected to unwarranted and unwanted treatment for that illness. 

The named defendants filed motions to dismiss, which the District Court granted 

on December 23, 2004. The District Court directed Ash to supply the names of the Doe 

defendants by May 16, 2005. Ash failed to comply, and the District Court dismissed the 

complaint without prejudice on May 18, 2005. 

In August 2005, Ash filed a motion for summary judgment against the 

Philadelphia Prison System, which the District Court “terminated” due to its earlier order 
3

dismissing the case. Ash filed nothing else until August 2009; then, he filed a series of 

documents stating that he had not received the District Court’s December 23, 2004 order 

and reasserting his claims. These filings did not, in any clear sense, request action from 

the District Court, and the Court did not rule upon them. 

On May 15, 2010, Ash filed a notice of appeal (docketed at No. 10-2460), 

challenging the District Court’s December 23, 2004 order. While that appeal was 

pending, Ash requested that the District Court reopen the time to file an appeal. Noting 

that Ash’s appeal in No. 10-2460 remained open, the District Court dismissed the motion 

to reopen. On August 19, 2010, we concluded that Ash’s notice of appeal was untimely 

and thus dismissed the appeal for want of jurisdiction. Ash then asked the District Court 

reconsider its order refusing to reopen the time to appeal; the District Court denied the 

motion, and Ash initiated the appeal that is at issue here.

1

We agree with the District Court that Ash is not entitled to the relief he seeks. 

Ash’s motion to reopen the period in which to appeal is governed by Rule 4(a)(6) of the 

Federal Rules of Appellate Procedure. Under Rule 4(a)(6), a party must establish that he 

or she did not receive notice of a judgment pursuant to Rule 77(d) of the Federal Rules of 

 Ash has also asked this Court 

to appoint counsel. 

 1 After the District Court denied Ash’s motion to reopen, he filed a timely 

motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure, 

which tolled the time to appeal. See Fed. R. App. P. 4(a)(4)(A)(iv). The District Court 

denied the Rule 59(e) motion on September 14, 2010, and Ash then filed a timely notice 

of appeal on October 4, 2010.
4

Civil Procedure. The Rule 4(a)(6) motion must be filed within 180 days of the entry of 

judgment or within 14 days of the party’s receipt of notice, whichever is earlier. Thus, 

the rule “establishes an outer time limit of 180 days within which a party who has not 

received notice of the entry of a judgment may request a limited extension.” Marcangelo 

v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995) (internal quotation marks omitted). 

Here, the District Court entered its order dismissing the case on May 18, 2005.2

We will thus summarily affirm the District Court’s orders denying Ash’s motion 

to reopen the time to appeal and his motion for reconsideration. See 3d Cir. L.A.R. 27.4; 

 

Ash’s Rule 4(a)(6) motion was thus due by November 14, 2005. However, he did not 

submit any such filing to the Court until, at the very earliest, August 4, 2009, well outside 

the 180-day period. The District Court therefore did not abuse its discretion in denying 

Rule 4(a)(6) relief. Moreover, given the fact that the Court correctly denied Ash’s Rule 

4(a)(6) motion, we also conclude that the Court did not abuse its discretion in refusing to 

reconsider that order. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) 

(purpose of motion for reconsideration is to correct manifest errors of law or fact or to 

present newly discovered evidence). 

 2 The District Court dismissed Ash’s amended complaint without prejudice. 

However, given Ash’s insistence in his later filings that he has presented meritorious 

claims, we conclude that he has elected to stand on that complaint. See Borelli v. City of 

Reading, 532 F.2d 950, 952 (3d Cir. 1976). Further, although Ash has claimed only that 

he did not receive notice of the District Court’s December 23, 2004 order that granted the 

motions to dismiss filed by named defendants, we will assume that he also did not receive 

notice of the Court’s May 18, 2005 order dismissing the amended complaint. 
5

I.O.P. 10.6. We will also deny Ash’s motion for appointment of counsel.