Bailey v. Marano , 161 F. App'x 220 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-9-2006
Bailey v. Marano
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2933
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Bailey v. Marano" (2006). 2006 Decisions. Paper 1774.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1774
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2933
________________
DEMETRIUS BAILEY,
Appellant
v.
CO I MARANO; CO MEGA; JOHNSON; CAPT. FORD; LT. BURNS;
BEN ANSELL; CO I WORTSELL; CAPT. MUCCINO; M. J. MATTHEWS;
MR. WARMAN; CONNER BLAINE; ROBERT BITNER; DR. KELLY;
SUE TURNER; T. D. JACKSON; MR. STOWITZKY; MR. ROSSI;
MR. DITTSWORTH; MR. HEWITT; LT. TUSTIN; RAYMOND STEWART;
CO I ABEREGG; MAJ. HASSETT; LT. FORTE; MR. MCCRAE;
MR. SPARBANIE; LT. GRAINEY; CO I VENOM; CAPT. LANTZ;
MR. SEIVERLING; CO I KOVALCHUK
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 00-cv-00325)
District Judge: Honorable Arthur J. Schwab
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 6, 2006
BEFORE: McKEE, FUENTES and NYGAARD, CIRCUIT JUDGES
(Filed: January 9, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Demetrius Bailey appeals the District Court’s order denying his motion filed
pursuant to Fed. R. Civ. P. 60. Bailey filed a civil rights complaint in the District Court
for the Western District of Pennsylvania. The District Court dismissed the complaint
before service for failure to state a claim. On appeal, this Court affirmed the dismissal of
Bailey’s procedural due process and malicious prosecution claims but remanded the
matter for further proceedings because Bailey had stated a claim of retaliation.1 The
parties consented to the Magistrate Judge exercising jurisdiction over the case. By order
entered September 1, 2004, the Magistrate Judge granted summary judgment in favor of
the appellees. Bailey filed objections which were treated as a notice of appeal. After
Bailey informed the District Court that he did not intend to file a notice of appeal,2 the
Magistrate Judge construed the objections as a motion for reconsideration and denied the
motion by order entered November 12, 2004. The Magistrate Judge informed Bailey that
he had thirty days to appeal the order to this Court. On April 29, 2005, Bailey filed a
motion pursuant to Fed. R. Civ. P. 60. The District Court denied the motion, and Bailey
filed a timely notice of appeal.
1
Contrary to Bailey’s arguments, this Court did not find the causal connection element
of his retaliation claim and remand the claim for a trial. Rather, it noted that Bailey had
alleged a causal connection and had stated a claim.
2
The appeal was dismissed for failure to pay the filing and docketing fees.
2
We have jurisdiction under 28 U.S.C. § 1291. The denial of a Rule 60(b) motion
is an appealable order; however, the scope of the appeal does not include the underlying
judgment. Browder v. Director of Dep’t of Corrections, 434 U.S. 257, 263 n.7 (1978).
Disposition of a motion under Rule 60(b) is within the discretion of the trial court, and the
Court of Appeals may review the ruling only for an abuse of that discretion. Hodge v.
Hodge, 621 F.2d 590, 593 (3rd Cir. 1980).
In his Rule 60 motion, Bailey argued that the District Court should have reviewed
his objections to the Magistrate Judge’s order granting summary judgment. However,
Bailey consented to the Magistrate Judge trying the case. An appeal from the judgment
of a Magistrate Judge in such a case is to the Court of Appeals. See Fed. R. Civ. P. 73(c);
28 U.S.C. § 636(c)(3). Bailey had the opportunity to appeal from the Magistrate Judge’s
September 1, 2004 order and explicitly chose not to do so. He could have also filed an
appeal after the Magistrate Judge denied his motion for reconsideration. Because Bailey
did not present any reasons entitling him to relief from judgment, the District Court did
not abuse its discretion in denying his Rule 60 motion.
For essentially the reasons given by the District Court, we will affirm the District
Court’s May 3, 2005, order.
3