Filed: Feb. 14, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-14-2006 Graham v. Ferguson Precedential or Non-Precedential: Non-Precedential Docket No. 04-1479 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Graham v. Ferguson" (2006). 2006 Decisions. Paper 1592. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1592 This decision is brought to you for free and open access by the Opinions of the U
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-14-2006 Graham v. Ferguson Precedential or Non-Precedential: Non-Precedential Docket No. 04-1479 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Graham v. Ferguson" (2006). 2006 Decisions. Paper 1592. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1592 This decision is brought to you for free and open access by the Opinions of the Un..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-14-2006
Graham v. Ferguson
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1479
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Graham v. Ferguson" (2006). 2006 Decisions. Paper 1592.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1592
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NOT PRECEDENTIAL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. 04-1479
RAFIEEK GRAHAM,
Appellant
v.
GLEN FERGUSON, Clinical Director; GRACE ROGERS, Administrator; ANGEL L.
SANTIAGO, Assistant Superintendent; JONATHAN SIMMS, Program Coordinator;
JOHN VERNEY, Program Coordinator; CATHRYN BUCHANON, Lieutenant;
ROBERT KENT, Lieutenant; JOHN COLLINS, Sergeant; GENE PRINCE, Sergeant;
MUNEZ, Corrections Officer; SUMMERS, Corrections Officer; E. OST, Corrections
Officer; GUROYONI, Corrections Officer; NIKISCHER, Corrections Officer; A. CRUZ;
FRANK NOVELLO, Corrections Officer; JOHN CIRIGLIANO, Corrections Officer;
DAVID STARCHER, Occupational Therapist; SHANTAY BRAME, Clinical Social
Worker; CAROL BYNUM, Nurse 1st shift; BOOKER, Correctional Officer; FALDUTO,
Corrections Officer COLLECTIVELY AND IN THEIR INDIVIDUAL CAPACITIES
_______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-04925)
District Judge: William G. Bassler
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 14, 2005
ROTH, RENDELL and AMBRO, CIRCUIT JUDGES
(Filed: February 14, 2006)
OPINION
_______________________
PER CURIAM
Appellant Rafieek Graham appeals from a District Court order dismissing his
complaint without prejudice. We will dismiss the appeal for want of jurisdiction.
I.
Appellant Rafieek Graham is civilly committed at a special treatment unit in
Kearny, New Jersey pursuant to New Jersey’s Sexually Violent Predator Act. N.J. Stat.
Ann. § 30:4-27.24 to -27.38. On October 11, 2002, he filed a complaint under 42 U.S.C.
§ 1983 in the United States District Court for the District of New Jersey. Graham named
twenty-two defendants alleging First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendment violations for repeated strip searches and room searches, deprivations of
property, denial of access to legal material, and the denial of treatment made available to
other civilly committed sexually violent offenders. On July 25, 2003, the State
Defendants moved to dismiss the complaint for failure to state a claim. In support, the
Defendants filed a brief and appendix amounting to three volumes of evidence and
argument. Subsequently, Graham filed a packet of information in support of his claims,
but he did not respond to the motion to dismiss.
Without opinion, the District Court issued a two-page order granting the State
2
Defendants’ motion to dismiss and dismissed the complaint without prejudice.1 After the
dismissal, Graham sent a letter to the Court in which he explained that he received only
the envelope, but not the Defendants’ motion to dismiss. He also indicated that he wished
to appeal the dismissal. Graham did not serve a copy of the letter on the Defendants. The
District Court then entered a letter order on February 11, 2004, explaining that although
Graham was required to serve the Defendants with any filings, the Court would effectuate
service in this instance. The letter order also informed Graham that his letter would be
construed as a motion for reconsideration.2
On February 17, 2004, Graham filed a notice of appeal stating his intent to appeal
the “letter of appeal” entered February 11, 2004, which we assume refers to the District
Court’s letter order. This Court issued a letter informing him that the appeal would be
submitted for dismissal for a possible jurisdictional defect under Borelli v. City of
Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam). After further review, a letter was sent
informing the parties that the reason for the District Court’s order dismissing the
complaint without prejudice is unclear. We directed the parties to address the question of
appellate jurisdiction in their briefs.
II.
1
The District Court order does not mention Defendant Carol Bynum.
2
To this date, the District Court has not acted on the motion for reconsideration.
Further, the docket does not reflect that the letter was ever entered as a motion for
reconsideration. Rather, the letter is entered on the docket as “appeal of Court’s order.”
Thus, it appears that a motion for reconsideration was never filed by the Clerk.
3
Ordinarily, an order is not final and appealable if it does not end the litigation with
respect to all claims and to all parties. See 28 U.S.C. § 1291; Republic Nat’l Gas Co. v.
Oklahoma, 334 U.S. 62, 68 (1948). The Appellees argue that because the District Court’s
order was entered without prejudice, the order is not final or appealable and we lack
jurisdiction. See Borelli v. City of Reading,
532 F.2d 950, 951-52 (3d Cir. 1976) (per
curiam). However, Graham appeals from the District Court’s February 11, 2004, letter
order, which does not implicate Borelli.3
The District Court’s letter order specifies that Graham’s February 4th letter will
be construed as a motion for reconsideration. The District Court Clerk, however, failed to
record that Graham’s letter was to be so construed. This appears to be a clerical error.
Under District of New Jersey Local Rule of Civil Procedure 7.1(i), a motion for
reconsideration from any order or judgment must be filed within ten-business days.
Graham filed a timely motion. Although the District Court docket does not reflect any
further motions upon which the Court must act, by the District Court’s own decree, a
motion for reconsideration is still pending.
3
As mentioned above, Nurse Bynum was not included in the District Court’s
order dismissing the complaint. However, this appears to be a clerical oversight, not an
intentional omission. The State Defendants’ motion to dismiss curiously fails to name
nurse Bynum, but refers to the Defendants collectively as the “State Defendants.” The
District Court adopted the term and dismissed the complaint against the “State
Defendants.” It appears that Bynum, a treatment center employee, is probably a State
Defendant, and was accidentally omitted from the motion, order, and subsequent
documents. Thus, it is likely that Nurse Bynum was intended to be included in the
dismissal and does not preclude jurisdiction.
4
An order construing a filing as a motion for reconsideration in this instance does
not “end[] the litigation on the merits and leave[] nothing for the court to do but execute
the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). Rather, it specifically
suggests that a decision on the motion will be issued. Further, it does not fall under the
collateral order doctrine because the order is not “important in a jurisprudential sense.”
Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A.,
947 F.2d 49, 56 (3d Cir. 1991)
(citations and internal quotations omitted). The time for filing a notice of appeal does not
commence until the District Court issues an order disposing of the motion. See Fed. R.
App. P. 4(a)(4). Accordingly, the order is not appealable until the District Court rules on
the motion.4
For the foregoing reasons, there is no final or appealable order at this time. We
will dismiss the appeal for lack of Jurisdiction.
4
Even if Graham intended to appeal the order dismissing the complaint without
prejudice, the filing of a timely motion for reconsideration prevents the notice from taking
effect until an order disposing of the motion is entered. See Fed. R. App. P. 4(a)(4)(B)(i).
5
