                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2006

Bailey v. Marano
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2933




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Recommended Citation
"Bailey v. Marano" (2006). 2006 Decisions. Paper 1774.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1774


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                                                  NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                          NO. 05-2933
                       ________________

                     DEMETRIUS BAILEY,

                                 Appellant


                                 v.

  CO I MARANO; CO MEGA; JOHNSON; CAPT. FORD; LT. BURNS;
BEN ANSELL; CO I WORTSELL; CAPT. MUCCINO; M. J. MATTHEWS;
 MR. WARMAN; CONNER BLAINE; ROBERT BITNER; DR. KELLY;
    SUE TURNER; T. D. JACKSON; MR. STOWITZKY; MR. ROSSI;
MR. DITTSWORTH; MR. HEWITT; LT. TUSTIN; RAYMOND STEWART;
     CO I ABEREGG; MAJ. HASSETT; LT. FORTE; MR. MCCRAE;
   MR. SPARBANIE; LT. GRAINEY; CO I VENOM; CAPT. LANTZ;
              MR. SEIVERLING; CO I KOVALCHUK

            ____________________________________

          On Appeal From the United States District Court
             For the Western District of Pennsylvania
                    (D.C. Civ. No. 00-cv-00325)
            District Judge: Honorable Arthur J. Schwab
          _______________________________________


            Submitted Under Third Circuit LAR 34.1(a)
                        January 6, 2006

   BEFORE: McKEE, FUENTES and NYGAARD, CIRCUIT JUDGES

                     (Filed: January 9, 2006 )

                   _______________________
                                          OPINION
                                   _______________________

PER CURIAM

         Demetrius Bailey appeals the District Court’s order denying his motion filed

pursuant to Fed. R. Civ. P. 60. Bailey filed a civil rights complaint in the District Court

for the Western District of Pennsylvania. The District Court dismissed the complaint

before service for failure to state a claim. On appeal, this Court affirmed the dismissal of

Bailey’s procedural due process and malicious prosecution claims but remanded the

matter for further proceedings because Bailey had stated a claim of retaliation.1 The

parties consented to the Magistrate Judge exercising jurisdiction over the case. By order

entered September 1, 2004, the Magistrate Judge granted summary judgment in favor of

the appellees. Bailey filed objections which were treated as a notice of appeal. After

Bailey informed the District Court that he did not intend to file a notice of appeal,2 the

Magistrate Judge construed the objections as a motion for reconsideration and denied the

motion by order entered November 12, 2004. The Magistrate Judge informed Bailey that

he had thirty days to appeal the order to this Court. On April 29, 2005, Bailey filed a

motion pursuant to Fed. R. Civ. P. 60. The District Court denied the motion, and Bailey

filed a timely notice of appeal.

   1
     Contrary to Bailey’s arguments, this Court did not find the causal connection element
of his retaliation claim and remand the claim for a trial. Rather, it noted that Bailey had
alleged a causal connection and had stated a claim.
   2
       The appeal was dismissed for failure to pay the filing and docketing fees.
                                               2
       We have jurisdiction under 28 U.S.C. § 1291. The denial of a Rule 60(b) motion

is an appealable order; however, the scope of the appeal does not include the underlying

judgment. Browder v. Director of Dep’t of Corrections, 434 U.S. 257, 263 n.7 (1978).

Disposition of a motion under Rule 60(b) is within the discretion of the trial court, and the

Court of Appeals may review the ruling only for an abuse of that discretion. Hodge v.

Hodge, 621 F.2d 590, 593 (3rd Cir. 1980).

       In his Rule 60 motion, Bailey argued that the District Court should have reviewed

his objections to the Magistrate Judge’s order granting summary judgment. However,

Bailey consented to the Magistrate Judge trying the case. An appeal from the judgment

of a Magistrate Judge in such a case is to the Court of Appeals. See Fed. R. Civ. P. 73(c);

28 U.S.C. § 636(c)(3). Bailey had the opportunity to appeal from the Magistrate Judge’s

September 1, 2004 order and explicitly chose not to do so. He could have also filed an

appeal after the Magistrate Judge denied his motion for reconsideration. Because Bailey

did not present any reasons entitling him to relief from judgment, the District Court did

not abuse its discretion in denying his Rule 60 motion.

       For essentially the reasons given by the District Court, we will affirm the District

Court’s May 3, 2005, order.




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