Filed: Sep. 06, 2016
Latest Update: Mar. 03, 2020
Summary: DLD-383 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-1109 _ DOMINGO COLÓN-MONTAÑEZ, Appellant v. RICHARD KELLER; BART JOSEFOWICZ; KEVIN MISKELL; MARK PALL; MR. PYZIA; GARY L. GORDON; NORMAN DEMMING; LAWRENCE MAHALLY; JEROME W. WALSH; CHRIS PUTNAM; MICHAEL D. KLOPOTOSKY; POLICY MAKERS; JOHN WETZEL; LINDA L. KELLY _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-13-cv-02564) District Judge: Honorable A. Ric
Summary: DLD-383 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-1109 _ DOMINGO COLÓN-MONTAÑEZ, Appellant v. RICHARD KELLER; BART JOSEFOWICZ; KEVIN MISKELL; MARK PALL; MR. PYZIA; GARY L. GORDON; NORMAN DEMMING; LAWRENCE MAHALLY; JEROME W. WALSH; CHRIS PUTNAM; MICHAEL D. KLOPOTOSKY; POLICY MAKERS; JOHN WETZEL; LINDA L. KELLY _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-13-cv-02564) District Judge: Honorable A. Rich..
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DLD-383 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1109
___________
DOMINGO COLÓN-MONTAÑEZ,
Appellant
v.
RICHARD KELLER; BART JOSEFOWICZ;
KEVIN MISKELL; MARK PALL; MR. PYZIA;
GARY L. GORDON; NORMAN DEMMING;
LAWRENCE MAHALLY; JEROME W. WALSH;
CHRIS PUTNAM; MICHAEL D. KLOPOTOSKY;
POLICY MAKERS; JOHN WETZEL;
LINDA L. KELLY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 3-13-cv-02564)
District Judge: Honorable A. Richard Caputo
____________________________________
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
August 18, 2016
Before: CHAGARES, GREENAWAY, JR. and GARTH, Circuit Judges
(Opinion filed: September 6, 2016)
_________
OPINION *
_________
PER CURIAM
Domingo Colón-Montañez appeals from the order of the District Court denying
his motion for reconsideration and dismissing his complaint with prejudice. We will
affirm.
I.
Colón-Montañez is a Pennsylvania inmate who was confined at SCI-Dallas but
who has since been transferred. While confined at SCI-Dallas, Colón-Montañez filed suit
pro se against numerous prison officials and other defendants. Colón-Montañez asserted
several claims under 42 U.S.C. § 1983 and state law premised on the revocation of his
“Z-code” status, which permitted him to be housed in a cell alone rather than with
another inmate. In particular, Colón-Montañez claimed that: (1) all defendants conspired
to revoke his Z-code status in retaliation for his filing of grievances regarding his medical
care; (2) defendants revoked his status without due process; and (3) the revocation of his
status violated the Eighth Amendment because it subjected him to possible assaults by
other inmates. Colón-Montañez did not claim that he actually had been assaulted since
the revocation of his Z-code status, but he sought both an injunction restoring that status
and monetary damages.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
The defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). A
Magistrate Judge recommended granting it without prejudice and with leave for Colón-
Montañez to file an amended complaint. The Magistrate Judge also advised Colón-
Montañez of his right to file objections. Colón-Montañez did not file any objections and,
by order entered January 20, 2015, the District Court adopted the Magistrate Judge’s
recommendation. In its order, the District Court advised Colón-Montañez that he had 30
days to file an amended complaint and that it would dismiss the action with prejudice if
he failed to do so.
Colón-Montañez then filed a motion for leave to file objections to the Magistrate
Judge’s report nunc pro tunc. He acknowledged receiving the report, but he argued that
he could not timely object because he had been transferred to another facility. He did not
raise any arguments regarding the Magistrate Judge’s analysis or the merits of his claims.
By order entered April 23, 2015, the District Court granted the motion, vacated its
previous order, and gave Colón-Montañez approximately one more month to file
objections. Colón-Montañez, however, once again did not file any objections. Thus, the
District Court again adopted the Magistrate Judge’s recommendation by order entered
June 5, 2015. The order again advised Colón-Montañez that he had 30 days to file an
amended complaint and that the court would dismiss the action with prejudice if he failed
to do so.
In response to that order, Colón-Montañez filed both a motion for an extension of
time to file a motion for reconsideration and a motion for an extension of time to file an
3
amended complaint. He claimed that he did not receive a copy of the District Court’s
April 23 order granting him leave to file objections nunc pro tunc. As before, he did not
raise any arguments regarding the Magistrate Judge’s analysis or the merits of his claims.
The District Court nevertheless granted him an extension of time to file a motion for
reconsideration or an amended complaint.
Colón-Montañez then filed a motion for reconsideration, but he did not file an
amended complaint. In his motion, Colón-Montañez again complained that he had not
timely received the District Court’s April 23 order, and he again failed to raise any
argument regarding the Magistrate Judge’s analysis or the merits of his claims. Colón-
Montañez also filed a motion for appointment of counsel and a temporary restraining
order asserting that prison officials were restricting his ability to communicate with the
courts. That motion too contained no mention of the merits of his claims. 1
By order entered January 5, 2016, the District Court denied Colón-Montañez’s
motions and dismissed his complaint with prejudice. Colón-Montañez appeals. 2
1
Colón-Montañez asserted that he could not send as much legal mail or make as many
copies as he would like because, inter alia, “the institution stole approximately $2,000
from my inmate account and illegally sent it to the Court of Common Pleas in Berks
County[.]” (ECF No. 59 at 1.) Colón-Montañez appears to be referring to the
Pennsylvania Department of Corrections’ policy of deducting funds from inmate
accounts to cover court-ordered fines and the like. Colón-Montañez previously
challenged that policy in a separate suit, and we affirmed the entry of summary judgment
against him on his claims. See Montañez v. Pa. Sec’y Dep’t of Corr., 773 F.3d 472, 478-
82 (3d Cir. 2014).
2
In addition to filing his notice of appeal, Colón-Montañez filed with the District Court
another motion for an extension of time to file another motion for reconsideration. He
4
II.
We will affirm. Colón-Montañez has never filed anything in the District Court or
this Court challenging the Magistrate Judge’s analysis of the merits of his claims. Even if
we were to review them de novo, however, we would agree with that analysis for the
reasons that the Magistrate Judge adequately explained. We add that Colón-Montañez’s
transfer from SCI-Dallas would appear to render moot his claims for injunctive relief
against SCI-Dallas personnel based on alleged conditions at that facility. See Abdul-
Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993). 3
also filed with both the District Court and this Court motions to stay this appeal pending a
ruling on that motion. Our Clerk denied Colón-Montañez’s motion for a stay in this
Court, and he has not sought review of that action. His other motions remain pending in
the District Court. In light of our Clerk’s Order and the passage of time, it appears that
the District Court does not intend to take any action on those motions. In any event, we
do not construe them as motions that toll the effectiveness of Colón-Montañez’s notice of
appeal under Fed. R. App. P. 4(a)(4). Thus, we have jurisdiction under 28 U.S.C. § 1291.
3
Colón-Montañez asserted state-law claims that the Magistrate Judge did not specifically
address, but we construe the District Court’s order of dismissal as declining to exercise
supplemental jurisdiction over those claims. Colón-Montañez’s complaint could be
liberally construed to raise two other kinds of claims that the Magistrate Judge did not
specifically address, but they lack merit. First, he asserts at various points that his
imprisonment is unlawful because his conviction is invalid. Any claims in this regard
lack merit because he has not succeeded in overturning his conviction, as he has
attempted to do most recently in M.D. Pa. Civ. No. 3-15-cv-02442. See
Montañez, 773
F.3d at 482 (citing Heck v. Humphrey,
512 U.S. 477 (1994)). Second, his prayer for
relief contains an alternative request that he be transferred to a different facility for
adequate treatment of his liver problems. Colón-Montañez did not actually develop any
claim in that regard in this case, but he did in a separate suit and we affirmed the entry of
summary judgment against him on his claims. See Colón-Montañez v. Pa. Healthcare
Serv. Staff, 530 F. App’x 115, 117-18 (3d Cir. 2013). In addition to these claims, Colón-
Montañez made numerous allegations regarding his treatment at different facilities before
being transferred to SCI-Dallas in 2008. As the Magistrate Judge explained, he did not
5
We also perceive no abuse of discretion in the District Court’s denial of
reconsideration or further leave to amend. When the District Court finally dismissed
Colón-Montañez’s complaint with prejudice, he had had over one year since receiving
the Magistrate Judge’s report and over six months after the District Court adopted it a
second time to articulate some argument on the merits or to file an amended complaint.
None of his filings, however, even acknowledged the Magistrate Judge’s analysis or
argued the merits of his claims.
Finally, we perceive no abuse of discretion in the District Court’s denial of Colón-
Montañez’s motions for counsel and a temporary restraining order. Colón-Montañez
asserted that prison personnel were restricting his ability to access the courts, but he did
not claim that they prevented him from submitting any specific objections, any materials
in support of reconsideration, or an amended complaint. His assertions in that regard also
are largely conclusory, and they are belied by his ability to continue filing documents
both in this case and in his habeas proceeding at M.D. Pa. Civ. No. 3-15-cv-02442 during
the relevant time. In this case, for example, he filed a reply brief in support of
reconsideration in which he asserted that he had “strong objections” to the Magistrate
Judge’s recommendation. (ECF No. 58 at 2.) Even at that late stage, however, Colón-
Montañez did not provide any indication of what those objections were.
III.
actually assert any claims in that regard against employees of his former prisons and any
such claims would be barred by the two-year statute of limitations applicable to such
6
For these reasons, we will affirm the judgment of the District Court. Colón-
Montañez’s motion for appointment of counsel on appeal is denied.
claims. See Montañez, 773 F.3d at 480.
7
