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Asemani v. United States, 08-1063 (2009)

Court: Court of Appeals for the Fourth Circuit Number: 08-1063 Visitors: 10
Filed: Apr. 24, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1063 BILLY G. ASEMANI, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 08-8005 BILLY G. ASEMANI, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeals from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05-cv-02821-AMD) Submitted: March 20, 2009 Decided: April 24, 2009 Before KING, DUNCAN, and AGEE, Cir
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                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-1063


BILLY G. ASEMANI,

                  Plaintiff - Appellant,

             v.

UNITED STATES OF AMERICA,

                  Defendant - Appellee.




                               No. 08-8005


BILLY G. ASEMANI,

                  Plaintiff - Appellant,

             v.

UNITED STATES OF AMERICA,

                  Defendant - Appellee.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.    Andre M. Davis, District Judge.
(1:05-cv-02821-AMD)


Submitted:    March 20, 2009                 Decided:   April 24, 2009


Before KING, DUNCAN, and AGEE, Circuit Judges.
No. 08-1063 dismissed; No. 08-8005 affirmed by unpublished per
curiam opinion.


Billy G. Asemani, Appellant Pro Se.      Ariana Wright Arnold,
Assistant United States Attorney, Melanie Lisa Glickson, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            These consolidated appeals arise from an action filed

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671-

2680   (2006),      by   Billy    G.   Asemani,    a     former   federal    detainee

presently incarcerated in a Maryland state prison.                           Asemani’s

action sought damages for injuries allegedly sustained while he

was being detained by the Department of Homeland Security.

            After        the   Government      filed     a    motion   for    summary

judgment,     the    district      court       issued     a   notice   pursuant    to

Roseboro v. Garrison, 
528 F.2d 309
(4th Cir. 1975), advising

Asemani that he had seventeen days from the date of the notice

to file any written opposition.                   Prior to expiration of the

seventeen-day       period,      the   district    court      issued   a   memorandum

opinion and order granting the Government’s motion for summary

judgment.     In Appeal No. 08-1063, Asemani challenged the court’s

failure to afford him the full time allotted to respond to the

Government’s summary judgment motion.                   He also raised this issue

in a Fed. R. Civ. P. 60(b) motion in the district court.                          When

that court entered an order reflecting its inclination to grant

the Rule 60(b) motion, we remanded for the limited purpose of

permitting the district court to consider Asemani’s responsive

pleading.     Asemani v. United States, 283 F. App’x 160 (4th Cir.

2008) (No. 08-1063).



                                           3
              On       remand,     the     district       court        entered       an    order

granting      Asemani      thirty        days   to    file       a    response.           Asemani

received      a    thirty-day      extension         of   this       time    period,      at   the

conclusion        of    which     he   moved    to    place      his    case    in     abeyance

pending action in an unrelated case.                         Alternatively, he moved

for another extension of time to file a response.                               The district

court denied the motion for abeyance and for an extension of

time    and   ordered       the    case    closed.         Asemani          timely   appealed.

This appeal from the district court’s final order was assigned

No. 08-8005, and was consolidated with Asemani’s earlier appeal,

No. 08-1063, now back from remand.

              In       Appeal    No.     08-1063,     Asemani’s         sole    argument        on

appeal is that the district court erred in entering its original

judgment three days before his response deadline.                              Our remand of

the appeal and the district court’s order allowing Asemani time

to file a responsive pleading render this appeal moot.                                 The fact

that Asemani failed on remand to file a responsive pleading does

not alter this result.

              In Appeal No. 08-8005, Asemani raises a single issue:

whether the lower court abused its discretion by dismissing his

case at the same time it denied his motion for an extension of

time.    He requests that we again remand the case to the district

court, directing the court to allow him to file a response.

Alternatively, he requests leave to appeal the order dismissing

                                                4
his complaint.             However, because Asemani asserts no specific

challenges         to    the    order    granting         summary     judgment,         he   has

abandoned      any        challenge      to     the       substance       of     the     order.

Edwards v. City of Goldsboro, 
178 F.3d 231
, 241 n.6 (4th Cir.

1999).

              To    the    extent       that    Asemani      challenges        the      district

court’s action ordering the case closed, our remand was for the

limited      purpose       of   allowing       the       district     court      to    consider

Asemani’s      response         to   the       Government’s         motion       for    summary

judgment.           As    Asemani     failed        to    file    a   response,         nothing

remained for the court to consider, and its action closing the

case was proper.

              To the extent that Asemani challenges the propriety of

the district court’s denial of a further extension of time, we

review such denials for abuse of discretion.                            See Carefirst of

Md., Inc. v. Carefirst Pregnancy Centers, Inc., 
334 F.3d 390
,

396   (4th    Cir.       2003).      Because        Asemani      failed     to     allege    any

reason warranting yet another extension of time, the district

court did not abuse its discretion in denying the motion.

              Accordingly, we dismiss as moot Appeal No. 08-1063,

and affirm the judgment of the district court in Appeal No. 08-

8005.     We dispense with oral argument because the facts and

legal    contentions           are   adequately          presented     in    the       materials



                                                5
before   the   court   and   argument   would   not    aid   the   decisional

process.

                                                      No. 08-1063 DISMISSED
                                                       No. 08-8005 AFFIRMED




                                    6

Source:  CourtListener

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