Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2007

Der Weer v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1392




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"Der Weer v. USA" (2007). 2007 Decisions. Paper 1808.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1808


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                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                    No. 06-1392


                             GORDON R. DER WEER,
                                           Appellant

                                          v.

                          UNITED STATES OF AMERICA;
                          FEDERAL BUREAU OF PRISONS


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF THE VIRGIN ISLANDS
                             D.C. Civil No. 01-cv-00118
            District Judge: The Honorable Raymond L. Finch, Chief Judge


                             Argued: December 5, 2006


             Before: McKEE, BARRY and STAPLETON, Circuit Judges

                           (Opinion Filed: January 5, 2007)




Renee D. Dowling, Esq. (Argued)
P.O. Box 1047
Christiansted, Saint Croix
USVI, 00821

Counsel for Appellant



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Ernest F. Batenga, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, Saint Croix
USVI, 00820

Counsel for Appellees


                                          OPINION


BARRY, Circuit Judge

       After five years of proceedings before the District Court, the Court dismissed the

complaint of appellant Gordon R. Der Weer. Der Weer concedes that he failed to

properly plead either a Bivens action or a claim under 42 U.S.C. § 1983, but argues that

the District Court should not have dismissed his complaint on those “purely technical

grounds” and should have permitted him to file the identical amended complaint the

Court rejected in March 2002. He asks, in the alternative, that we permit him to amend

his complaint under 28 U.S.C. § 1653 so he can, at this late date, cure what he describes

as his defective allegations of subject matter jurisdiction.

       We have considered the submissions of the parties and have heard oral argument.

Nothing need be said other than that in November 2002, the District Court granted leave

to Der Weer to file an amended complaint and in January 2003, April 2003, and April

2004, confirmed its intent to accept an amended complaint in proper form. Der Weer

filed nothing.

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The order of the District Court will be affirmed.




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