2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-20-2011 

# R o dne y Ash v

. P hi l a P r i son S ys

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-3987

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- 087 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 PHILADEL PHIA; 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 Dis trict Court for the Eastern District of Pennsylvania (D.C. Civil No. 04

- cv - 0 0556 ) 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 GREEN A WAY, 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 , s ee U nited States v. Rinaldi , 447 F.3d 192, 195 (3d Cir. 2006) , and w e review the District Court’s orders for abuse of discretion, s ee 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

r econsideration ). 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 psych iatric illness and then subjected to unwarranted and unwanted treatment for that illness

. The named defendants filed motion s to dismiss, which the District Court granted on December 23, 2004. The District Court directed Ash to supply the names of the Do e 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 Co urt “terminated” due to its earlier order3 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 t hat 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 refusi ng to reopen the time to appeal; the District Court denied the motion, and Ash initiated the appeal that is a t issu e 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 Appell ate 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 Afte r 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 R ule 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 o r 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 order s 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

su bmit any such filing to the Court until , at the very earliest, August 4, 2009, well outside the 180

- day period. T he District Court therefore did not abuse its discretion in denying Rule 4(a)(6) relief. Moreover, given the fact that the Court correctly de nied 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 manifes t 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 insis tence 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 rece ive 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 w ill also deny Ash’s motion for appointment of counsel.