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


11-28-2007

Atwell v. Metterau
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3454




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Recommended Citation
"Atwell v. Metterau" (2007). 2007 Decisions. Paper 183.
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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                NOS. 06-3454 and 06-4322
                                  ________________

                            GEOFFREY WILLARD ATWELL,
                                     Appellant

                                              v.

                          M.R. METTERAU; C.R. STICKLER
                       ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                             (M.D. Pa. Civ. No. 06-cv-01047)
                       District Judge: Honorable Sylvia H. Rambo
                     _______________________________________

                         Submitted Under Third Circuit LAR 34.1
                                   November 15, 2007

                 Before: SLOVITER, BARRY and WEIS, Circuit Judges

                                (Filed: November 28, 2007)
                                _______________________

                                        OPINION
                                _______________________

PER CURIAM

       Geoffrey Atwell, a former state prisoner proceeding pro se, appeals from several

orders of the United States District Court for the Middle District of Pennsylvania entered

in his civil rights action. We will affirm.

       In his complaint, Atwell alleged that two correctional officers took his legal papers
and supplies, clothing, and television the day before he was released from prison. Atwell

claimed that the officers violated his rights under the First, Fifth, Eighth, and Fourteenth

Amendments, and conspired against him. Atwell also claimed that a physician’s

assistant, Kelly Gallagher, failed to treat his medical condition.

       Shortly after filing his complaint, Atwell moved for the recusal of Judge Rambo

pursuant to 28 U.S.C. §§ 144, 455(a) and 455(b)(1). Atwell alleged that Judge Rambo

was biased against him based upon her adverse rulings in civil rights actions he filed

when he was incarcerated, and the fact that this Court remanded some of his cases to the

District Court for further proceedings. Atwell also stated that he had filed a complaint

against Judge Rambo, and that she had a conflict of interest because she was once a

Commonwealth of Pennsylvania employee.

       Judge Rambo denied the recusal motion, dismissed Gallagher from the action

pursuant to 28 U.S.C. § 1915, and granted the correctional officers’ motion to dismiss the

complaint. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.1

       The District Court did not abuse its discretion in denying Atwell’s motion for

recusal. As recognized by Judge Rambo, opinions formed by a judge on the basis of

events occurring in the course of prior proceedings do not constitute a basis for a bias



   1
    Atwell was initially notified that his appeal from the order dismissing Gallagher as a
party might be dismissed for lack of jurisdiction. Although Atwell filed this appeal
before the District Court entered a final judgment, we have jurisdiction because the
appeal ripened upon the District Court’s adjudication of his remaining claims. Cape May
Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir. 1983).

                                              2
motion under 28 U.S.C. §§ 144, 455(a) and 455(b)(1) unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible. Liteky v. United

States, 510 U.S. 540, 555 (1990). As Atwell’s allegations do not show a deep-seated

antagonism, Judge Rambo did not err in denying Atwell’s request for recusal based upon

her rulings in his prior lawsuits, and the fact that some of those decisions were remanded

on appeal.

       We also agree that Judge Rambo’s employment as a Pennsylvania judge thirty

years ago, and the fact that Atwell filed a complaint against Judge Rambo, did not require

recusal. Atwell disputes Judge Rambo’s statement that she did not know about his

complaint and attaches to his brief correspondence reflecting that in 2001 this Court

notified Judge Rambo that a complaint filed by Atwell was sent to the Judicial Council.

But given that five years lapsed between the filing of that complaint and the recusal

motion in this case, and given that Judge Rambo does not recall the complaint, we find no

abuse of discretion in the denial of recusal.

       The District Court also did not err in dismissing Gallagher as a party pursuant to

28 U.S.C. § 1915(e)(2)(B).2 The District Court explained that it dismissed Atwell’s claim

against Gallagher in another action pending before it and denied Atwell’s motion for

reconsideration. The District Court stated that Atwell’s present claim constituted




   2
    Although the District Court only referred to § 1915, we assume the dismissal was
pursuant to § 1915(e)(2)(B).

                                                3
harassment. Although a defendant usually must raise preclusion as an affirmative

defense, a court may sua sponte dismiss an action on this basis where the court is on

notice that it previously decided the issue presented. See Arizona v. California, 530 U.S.

392, 412 (2000) (explaining that this result avoids the burden of twice defending an

action and unnecessary judicial waste). Because the District Court previously adjudicated

Atwell’s claim based on Gallagher’s alleged failure to treat him, the District Court did not

err in dismissing Gallagher from this case where Atwell’s claim was based on the same

cause of action.3

       And the District Court did not err in granting the correctional officers’ motion to

dismiss the complaint for failure to state a claim upon which relief may be granted. As

the District Court recognized, Atwell was required to allege an actual injury in order to

state a First Amendment denial of access to courts claim based upon the taking of his




   3
    In Atwell’s other action, M.D. Pa. Civ. No. 03-cv-1728, he alleged in his amended
complaint that Gallagher refused to treat his serious medical conditions and acted with
deliberate indifference and reckless disregard causing him fear for his life. Gallagher
moved to dismiss the complaint because Atwell did not include any factual averments
identifying what she did that violated his constitutional rights, the time and place of the
alleged deprivation, or facts indicating a deliberate indifference to a serious medical need.
The District Court adopted the Magistrate Judge’s recommendation to grant Gallagher’s
motion because the amended complaint failed to state her personal involvement in any
constitutional violation and failed to state an Eighth Amendment deliberate indifference
claim. Atwell unsuccessfully filed a motion for reconsideration in which he stated that,
on July 22, 2002, he notified Gallagher that he would sue her. He attached a medical
record of that date in which Gallagher noted that Atwell mentioned a lawsuit. In Atwell’s
current complaint, he referred to a lack of treatment on July 22, 2002, and provided the
same medical record.

                                              4
legal papers. Lewis v. Casey, 518 U.S. 343, 351-54 (1996). Although Atwell asserted

that his litigation efforts in several cases were impeded, the dockets for those cases reflect

that one case is still being litigated and the others could not have been affected by the

alleged taking of documents. And Atwell only argues in his brief that he lost his research

notes. Atwell was released from prison one day after the officers allegedly took the

documents, and he does not contend that he was unable to conduct legal research after his

release. He has not alleged an actual injury resulting from the loss of his legal papers.

       The District Court also agreed with the correctional officers that Atwell did not

allege facts supporting a conspiracy claim, and that his allegations regarding the

deprivation of his property did not state an Eighth Amendment claim because he was not

deprived of the minimal civilized measure of life’s necessities. We agree. And Atwell’s

arguments that the correctional officers did not comply with the rules of civil procedure

do not warrant relief for the reasons stated by the District Court.

       Accordingly, we will affirm the District Court’s judgment.4




   4
    The correctional officers did not move to dismiss, and the District Court did not
adjudicate, Atwell’s due process claim. But Atwell has waived any issues related to this
claim on appeal because he did not raise them in his brief. United States v. Pelullo, 399
F.3d 197, 222 (3d Cir. 2005). To the extent Atwell refers to his due process claim in his
reply brief, his belated reference is insufficient to preserve the claim for review. Kost v.
Kozakiewicz, 1 F.3d 176, 182 n.3 (3d Cir. 1993)
                                                  5
