DLD-118                                       NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                           No. 18-2108
                           ___________

                          JOHN HART,
                                  Appellant

                               v.

CHRISTOPHER H. OPPMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
        AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
 CORRECTIONS; GILMORE, CORRECTIONAL OFFICER, INDIVIDUALLY AND
   IN HIS OFFICIAL CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA
 DEPARTMENT OF CORRECTIONS; C. J. MCKEOWN, INDIVIDUALLY AND IN
    HIS OFFICIAL CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; MICHAEL MAHLMEISTER, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA
  DEPARTMENT OF CORRECTIONS; LISA GRAVES, INDIVIDUALLY AND IN
 HER CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT
 OF CORRECTIONS; BRIAN THOMPSON; ROBIN LEWIS, INDIVIDUALLY AND
  IN HER OFFICIAL CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA
      DEPARTMENT OF CORRRECTIONS; BROMLEY, Sergeant, OFFICER,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN EMPLOYEE OF THE
    PENNSYLVANIA DEPARTMENT OF CORRECTIONS; ROBERT GRAVES,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN EMPLOYEE OF THE
  PENNSYLVANIA DEPARTMENT OF CORRECTIONS; PAUL G. THERIAULT;
DORINA VARNER; DENISE THOMAS, INDIVIDUALLY AND IN HER OFFICIAL
  CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
  CORRECTIONS; GERALD ROZUM, INDIVIDUALLY AND IN HIS OFFICIAL
  CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
   CORRECTIONS; JACK LOUGHRY, INDIVIDUALLY AND IN HIS OFFICIAL
  CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
 CORRECTIONS; JOSEPH JOZEFCZYK, INDIVIDUALLY AND IN HIS OFFICIAL
  CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
   CORRECTIONS; JOSEPH DUPONT, INDIVIDUALLY AND IN HIS OFFICIAL
  CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
  CORRECTIONS; MELANIE PYLE, INDIVIDUALLY AND IN HER OFFICIAL
 CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
 CORRECTIONS; JOSEPH BIANCONI, INDIVIDUALLY AND IN HIS OFFICIAL
 CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
  CORRECTIONS; BARRY GRUBB, INDIVIDUALLY AND IN HIS OFFICIAL
 CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
   CORRECTIONS; EDWARD MULLIGAN; DAVID CLIPPINGER; MICHAEL
  WENEROWICZ, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN
  EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
STEPHEN CAMPBELL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
    PETERSON, Correction Officer, INDIVIDUALLY AND IN HER OFFICIAL
 CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
 CORRECTIONS; JEAN WAMPFLER, INDIVIDUALLY AND IN HER OFFICIAL
 CAPACITY AS AN EMPLOYEE OF THE PENNSYLVANIA DEPARTMENT OF
                              CORRECTIONS
                ____________________________________

                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                    (D.C. Civil Action No. 2:14-cv-01367)
                 District Judge: Honorable Petrese B. Tucker
                 ____________________________________

     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
                               February 28, 2019

     Before: JORDAN, GREENAWAY, JR., and NYGAARD, Circuit Judges

                         (Opinion filed: April 2, 2019)




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                                          _________

                                          OPINION*
                                          _________


PER CURIAM

         Pro se appellant John Hart appeals from the District Court’s order denying his

motion under Federal Rule of Civil Procedure 60(b) seeking to vacate the order

dismissing his case for lack of prosecution and to have his civil action reopened. Because

the appeal presents no substantial question, we will affirm the judgment of the District

Court.

         Hart brought a civil rights suit in the District Court in March 2014 against twenty-

five officials from multiple state correctional institutions where he had been imprisoned.

Despite an enlargement of time, Hart had difficulty serving the bulk of the defendants.

Eventually, in an order entered on October 9, 2015, the District Court dismissed the case

for lack of prosecution. In March 2016, Hart filed a Rule 60(b) motion seeking to vacate

that dismissal order. The District Court denied the motion without providing any

reasoning or analysis. An appeal followed.

         On appeal, we noted that Hart’s motion to vacate raised excusable neglect as a

basis for relief from the District Court’s dismissal order. See Hart v. Oppman, 703 F.

App’x 146, 148 (3d Cir. 2017). As such, the District Court was under a “duty of


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              3
explanation” to entertain an analysis of the factors set forth in Pioneer Investment

Services Co. v. Brunswick Associates. Ltd. Partnership, 507 U.S. 380, 395 (1993). See

In re Cendant Corp. PRIDES Litig., 235 F.3d 176, 182 (3d Cir. 2000). Since the District

Court provided no reasoning to support its decision to deny Hart’s motion to vacate, we

were unable to conclude whether the District Court’s decision was a proper exercise of its

discretion. Accordingly, we vacated the judgment and remanded the matter for the

District Court to apply the Pioneer factors in the first instance. See Hart, 703 F. App’x at

149. On remand, the District Court reconsidered Hart’s Rule 60(b) motion and once

again denied it in an order entered on May 10, 2018. This timely appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. An appeal from the denial of a

Rule 60(b) motion, the filing of which does not toll the time to appeal the judgment, does

not bring up the underlying judgment for review. See Selkridge v. United of Omaha Life

Ins. Co., 360 F.3d 155, 161 n.3 (3d Cir. 2004). Because Hart’s Rule 60(b) motion did not

toll the time to appeal the October 2015 order dismissing the action for failure to

prosecute, see Fed. R. App. P. 4(a)(4)(A)(vi), we lack jurisdiction over the District

Court’s October 2015 order. Therefore, we may examine only the District Court’s May

2018 order denying Hart’s Rule 60(b) motion. We review the District Court’s denial of a

Rule 60(b) motion for abuse of discretion, see Jackson v. Danberg, 656 F.3d 157, 162 (3d

Cir. 2011), and will not disturb the underlying decision unless it rests upon a clearly

erroneous finding of fact or an errant conclusion of law or we are convinced that a clear

error of judgment was made after a weighing of the Pioneer factors. See P.N. v.
                                             4
Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006); Hanover Potato Prods., Inc.

v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993).

       As noted previously, Hart’s Rule 60(b) motion asserted that the matter should be

reopened due to excusable neglect. Hart stated that he was incarcerated and limited in his

access to facilities and persons needed to prosecute his civil action. See Rule 60(b) Mot.

at 2, ¶ 2. He claimed that he believed the outstanding waivers would be signed and

returned; thus, he ceased any further efforts to effectuate service on the remaining

defendants. See id. at 4, ¶ 21. He further claimed that he believed the burden was on the

defendants from SCI-Graterford who were personally served, as well as on the remaining

defendants who he believed had accepted service of process, to answer his complaint.

See Memorandum in Support of Rule 60(b) Motion at 4. Hart asserted that the delay had

not been significant and that he should not be punished for his “oversight” as he was

attempting to avoid costs and time by having the defendants waive service. See id. at 5.

With respect to the delay in filing his Rule 60(b) motion, Hart alleged that he did not

receive a copy of the District Court’s October 2015 order until around the second week of

March 2016. See id. at 3.

       To determine excusable neglect under Rule 60(b), a court must take into account

all relevant circumstances surrounding the party’s delay or omission, including: (1) the

danger of prejudice; (2) the length of the delay and its potential impact on the judicial

proceedings; (3) the reason for the delay (including whether it was within the reasonable

control of the movant); and (4) whether the movant acted in good faith. Pioneer
                                              5
Investment Services Co., 507 U.S. at 395; see also In re O’Brien Envtl. Energy, Inc., 188

F.3d 116, 125 n.7 (3d Cir. 1999) (stating that the Pioneer analysis of excusable neglect

applies in the context of deciding a Rule 60(b) motion).

       The conclusions of the District Court’s Pioneer analysis are set forth at length in

its May 2018 order and we need not repeat them here. Briefly, the District Court

describes, inter alia, the length of the delay caused by the manner in which Hart went

about effectuating service on the few defendants who were served, the number of

defendants who have yet to be served, the possible prejudice that defendants may face as

a result, the length of Hart’s delay in requesting relief under Rule 60(b), the impact of all

the delays on the court’s strong interest in case management, and the inadequacy of the

reasons proffered by Hart. Applying the factors set forth in Pioneer, we conclude that the

District Court did not abuse its discretion in denying Hart’s Rule 60(b) motion as we find

no errors here. The right law was applied, and there are no clearly erroneous findings of

fact or obvious errors in judgment. See Hanover Potato Prods., Inc., 989 F.2d at 127.

       We would add that Hart’s complaints about his status as an incarcerated litigant

are unavailing and disingenuous. From the outset, Hart provided a mailing address

outside of the Pennsylvania Department of Corrections for use in this litigation.

Furthermore, he relied upon the assistance of a person he purportedly appointed as his

Power of Attorney for purposes of communicating with defendants and their

representatives and for facilitating the service obligations associated with his civil

complaint. There is no indication on the District Court docket that the court’s order of
                                              6
dismissal was returned as undeliverable, nor is there any suggestion that information

related to the continued waiver/service issues he encountered did not reach him. As Hart

himself acknowledges, he simply “ceased any further efforts to effectuate service”

despite having failed to receive the waivers from the remaining defendants. We cannot

fault the District Court for rejecting Hart’s conclusion that this was a mere “oversight”

resulting from his attempt to avoid costs and time by having the defendants waive

service. Thus, on the record presented, the District Court did not abuse its discretion in

concluding that Hart’s neglect is not excusable and in denying the motion.

       As this appeal presents no substantial question, we will affirm the District Court’s

decision denying Hart’s Rule 60(b) motion. See Third Circuit LAR 27.4 and I.O.P. 10.6.




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