Hess v. Kunkle , 142 F. App'x 578 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-26-2005
Hess v. Kunkle
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1248
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Recommended Citation
"Hess v. Kunkle" (2005). 2005 Decisions. Paper 780.
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CPS-228 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1248
________________
CHRISTOPHER HESS,
Appellant
v.
* JEAN KUNKLE, Correspondence Clerk, Carlisle Regional Medical Center;
CYNTHIA HUNTER, Director, Health Information Management, Carlisle Regional
Medical Center; SUSAN J. PARSON, Notary Public, Carlisle Regional Medical Center;
JOSEPH A. RICCI, Legal Counsel, Carlisle Regional Medical Center; DARRELL
DETHLEFS, Attorney, Appointed by Common Pleas Court, Cumberland County
* (Amended Per Clerk’s Order of 2/07/05)
_____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-01876)
District Judge: Sylvia H. Rambo
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
April 28, 2005
Before: ALITO, MCKEE AND AMBRO, CIRCUIT JUDGE
(Filed July 26, 2005)
____________________
OPINION
_______________________
PER CURIAM
Appellant Christopher Hess, a state prisoner proceeding pro se, appeals the order
of the United States District Court for the Middle District of Pennsylvania denying his
motions filed pursuant to Fed. R. Civ. P. 60(b) and 28 U.S.C. § 455(a). For the reasons
that follow, we will dismiss the appeal as frivolous. See 28 U.S.C. § 1915(e)(2)(B).
Because we write for the parties, we will briefly summarize only those facts
essential to our disposition of this appeal. In 2003, Hess initiated the underlying 42
U.S.C. § 1983 action in the District Court for the Middle District of Pennsylvania.1 Hess
alleged that Jean Kunkle, Cynthia Hunter, Susan J. Parson, Joseph A. Ricci, and Darrell
Dethlefs (collectively, “the defendants”) violated his First and Fourteenth Amendment
rights during his 2001 to 2002 post-conviction proceedings. Hess also asserted a claim of
legal malpractice against defendant Dethlefs, who had been appointed to represent Hess
in 2001 during his post-conviction proceedings. Hess sought compensatory and punitive
damages. On July 20, 2004, after allowing Hess to amend his complaint, District Court
Judge Rambo entered an order granting the defendants’ motions to dismiss for lack of
subject matter jurisdiction on the ground that Hess’ claims were barred by the Rooker-
Feldman doctrine.2 Hess did not file an appeal from the District Court’s July 20 order.
1
Approximately one month before Hess filed this § 1983 action, he filed a 28 U.S.C.
§ 2254 petition in the District Court. See Hess v. Tennis, et al., M.D. Pa. Civ. No. 03-cv-
01668. Hess’ habeas petition was initially assigned to District Court Judge Rambo.
However, on December 28, 2004, Judge Rambo recused herself from Hess’ habeas
proceedings because “some of the respondents were either [her] close friends or former
associates.”
2
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Younger v. Harris, 401 U.S. 37 (1971); Rooker v. Fidelity Trust Co., 263 U.S. 413(1923).
2
On January 11, 2005, Hess filed a motion pursuant to Fed. R. Civ. P. 60(b) in
which he argued that: (1) the District Court erred in finding his claims against defendants
Kunkle, Hunter, Parson, and Ricci barred by the Rooker-Feldman doctrine; and (2)
assuming that his claims against Dethlefs were barred by the Rooker-Feldman doctrine,
the District Court should have permitted him to withdraw those claims rather than
dismissing his entire action.3 Hess also filed a motion to recuse pursuant to 28 U.S.C.
§ 455(a), citing various rulings made by Judge Rambo as evidence that she was
“prejudiced” against him. By order entered on January 18, 2005, Judge Rambo denied
both motions. Hess has timely appealed this order.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of
a Rule 60(b) motion and a judge’s decision not to recuse under § 455(a) for abuse of
discretion. See In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 170 (3d Cir. 2000);
Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir. 2000).
Because Hess’ appeal lacks arguable merit in law or fact, we will dismiss it as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 325
(1989).
The District Court was correct that Hess cited no proper basis for relief under Rule
60(b), and thus we find no abuse of discretion in the District Court’s refusal to vacate its
3
The January 11 Rule 60(b) motion was Hess’ second. He filed his first unsuccessful
Rule 60(b) motion on December 23, 2004.
3
July 20, 2004, order. Significantly, it is well-established that “Rule 60(b) is not to be
used as a substitute for, or alternative to, appeal. A party may not, therefore, invoke Rule
60(b) to avoid the expiration of the time for appeal.” Hill v. McDermott, Inc., 827 F.2d
1040, 1042 (5th Cir. 1987) (citations omitted); see also Page v. Schweiker, 786 F.2d 150,
154 (3d Cir. 1986) (noting that “were the rule otherwise, the time limitations on appeal
set by Fed. R. App. P. 4(a)(4), and on motions to alter or amend judgments under Fed. R.
Civ. P. 59(e), would be vitiated”). Insofar as Hess now seeks review of the District
Court’s decision to dismiss his complaint for lack of subject matter jurisdiction, his time
to appeal that decision expired long before he filed the Rule 60(b) motion. Hess simply
cannot seek review of the District Court’s July 20, 2004, order through an appeal of the
denial of his Rule 60(b) motion. Moreover, to the extent that Hess asserted in his Rule
60(b) motion that the District Court committed legal error in dismissing his complaint,
such error does not by itself warrant the application of Rule 60(b). See Selkridge v.
United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir. 2004). Accordingly, the
District Court did not abuse its discretion in denying Hess’ Rule 60(b) motion.
Likewise, the District Court did not abuse its discretion in denying Hess’ recusal
motion. Under § 455, a judge must recuse where her impartiality “might reasonably be
questioned.” 28 U.S.C. § 455(a). Although Hess cited various rulings made by Judge
Rambo to support his claim that she was “prejudiced” against him, unfavorable rulings do
not form an adequate basis for recusal. See Securacomm, 224 F.3d at 278. Moreover, we
4
find nothing in the record to suggest “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). Nor
do we perceive any facts from which a reasonable person would conclude that the
impartiality of Judge Rambo might reasonably be questioned. See Edelstein v. Wilentz,
812 F.2d 128, 131 (3d Cir. 1987). Although Judge Rambo did recuse herself from Hess’
pending habeas petition, she did so because some of the respondents named in that action
were either her friends or associates. However, as Judge Rambo explained, no such
conflict existed here. Accordingly, we discern no abuse of discretion in the District
Court’s denial of Hess’ recusal motion.
For the foregoing reasons, we will dismiss the appeal as frivolous.
5