                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-22-2005

Johnstown v. Vora
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4699




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Recommended Citation
"Johnstown v. Vora" (2005). 2005 Decisions. Paper 1323.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1323


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APS-192                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4699
                                   ________________


                                CITY OF JOHNSTOWN

                                              v.

                                 CHANDAN S. VORA,

                                        Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00221J)
                      District Judge: Honorable Gustave Diamond
                    _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   March 31, 2005

      BEFORE:      SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES

                               (Filed April 22, 2005 )
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Chandan S. Vora appeals the September 22, 2004 order of the United States

District Court for the Western District of Pennsylvania dismissing pursuant to 28 U.S.C. §

1915(e)(2)(B) her “Petition for Removal” for lack of jurisdiction. Vora also appeals the
October 27, November 17, and December 17, 2004 orders denying her motions to vacate.

       In 2000, Chandan Vora filed a motion to proceed in forma pauperis and a “Petition

for Removal,” of a Pennsylvania municipal court criminal complaint charging Vora with

obstruction of the administrative law and disorderly conduct arising out of Vora’s

interference with Public Works’ employees’ attempt to clean up her property pursuant to

a state court order. On September 22, 2004, the District Court dismissed the removal

petition, concluding that the “Petition for Removal” sought to attack a state court criminal

proceeding over which the District Court had no jurisdiction and that the pleadings failed

to state a claim upon which relief could be granted. On October 13, 2004, Vora moved to

vacate the dismissal of her removal action, claiming that the ordinances that formed the

basis for charges against her were unconstitutional, and that city officials violated her

civil rights. By order entered October 27, 2004, the District Court treated the motion as a

reconsideration motion and denied it for the same reasons set forth in its original

dismissal order. Dr. Vora filed a timely motion to vacate the October 2004 order on

November 8, 2004, which the District Court denied on November 17, 2004 on the same

grounds it had denied her reconsideration motion. Vora filed her third motion to vacate

on November 29, 2004, which the District Court denied on December 17, 2004. Vora

filed a notice of appeal on December 16, 2004.1




       1
         We construe the notice of appeal as appealing from the District Court dismissal
order and from the orders denying Vora’s motions to vacate.

                                              2
       First, Vora’s notice of appeal from the order dismissing the petition for removal is

clearly untimely under Fed. R. App. P. 4(a)(1), as it was filed almost 2 months too late.

The time-period prescribed for filing a notice of appeal is “mandatory and jurisdictional.”

Browder v. Director of Dep’t of Corr., 434 U.S. 257, 264 (1978). In a civil case in which

the United States is not a party, a notice of appeal must be filed within thirty (30) days of

the date of entry of the final judgment or order appealed. Fed. R. App. P. 4(a)(1)(A). On

September 22, 2004, the District Court granted in forma pauperis and dismissed the

Vora’s removal petition pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for lack of jurisdiction.

Appellant’s motions to vacate did not toll the appeals period because both were filed

more than ten days after entry of the dismissal order. See Fed. R. App. P. 4(a)(4). Thus,

Appellant had until October 26, 2004, to file a timely notice of appeal. Appellant did not

file a notice of appeal until December 16, 2004, more than thirty days after entry of

judgment. Accordingly, given the absence of a timely filed notice of appeal, the appeal of

the District Court’s September 22, 2004 order is dismissed for lack of appellate

jurisdiction. Vora’s appeal of the denial of the motions to vacate is timely, however, and

thus, we have jurisdiction to consider the appeal of these orders.

       Vora was granted leave to proceed in forma pauperis, and the appeal is now before

the Court for determination pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §

1915(e)(2)(B), the Court must dismiss an appeal if it (i) is frivolous or malicious, (ii) fails

to state a claim upon which relief may be granted, or (iii) seeks monetary damages from a



                                               3
defendant with immunity. An action or appeal can be frivolous for either legal or factual

reasons. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       After reviewing Vora’s District Court pleadings and notice of appeal, we conclude

that the District Court correctly denied all of the motions to vacate. Having found no

legal merit to this cause, we will dismiss the appeal pursuant to 28 U.S.C. §

1915(e)(2)(B).




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