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


2-14-2006

Graham v. Ferguson
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1479




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Recommended Citation
"Graham v. Ferguson" (2006). 2006 Decisions. Paper 1592.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1592


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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   NO. 04-1479


                              RAFIEEK GRAHAM,

                                                 Appellant

                                          v.

 GLEN FERGUSON, Clinical Director; GRACE ROGERS, Administrator; ANGEL L.
 SANTIAGO, Assistant Superintendent; JONATHAN SIMMS, Program Coordinator;
    JOHN VERNEY, Program Coordinator; CATHRYN BUCHANON, Lieutenant;
 ROBERT KENT, Lieutenant; JOHN COLLINS, Sergeant; GENE PRINCE, Sergeant;
 MUNEZ, Corrections Officer; SUMMERS, Corrections Officer; E. OST, Corrections
Officer; GUROYONI, Corrections Officer; NIKISCHER, Corrections Officer; A. CRUZ;
 FRANK NOVELLO, Corrections Officer; JOHN CIRIGLIANO, Corrections Officer;
  DAVID STARCHER, Occupational Therapist; SHANTAY BRAME, Clinical Social
Worker; CAROL BYNUM, Nurse 1st shift; BOOKER, Correctional Officer; FALDUTO,
 Corrections Officer COLLECTIVELY AND IN THEIR INDIVIDUAL CAPACITIES
                   _______________________________________

                  On Appeal From the United States District Court
                         For the District of New Jersey
                          (D.C. Civ. No. 02-cv-04925)
                        District Judge: William G. Bassler
                  _______________________________________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                              November 14, 2005

               ROTH, RENDELL and AMBRO, CIRCUIT JUDGES

                            (Filed: February 14, 2006)
                                      OPINION
                               _______________________

PER CURIAM

       Appellant Rafieek Graham appeals from a District Court order dismissing his

complaint without prejudice. We will dismiss the appeal for want of jurisdiction.

                                          I.

       Appellant Rafieek Graham is civilly committed at a special treatment unit in

Kearny, New Jersey pursuant to New Jersey’s Sexually Violent Predator Act. N.J. Stat.

Ann. § 30:4-27.24 to -27.38. On October 11, 2002, he filed a complaint under 42 U.S.C.

§ 1983 in the United States District Court for the District of New Jersey. Graham named

twenty-two defendants alleging First, Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendment violations for repeated strip searches and room searches, deprivations of

property, denial of access to legal material, and the denial of treatment made available to

other civilly committed sexually violent offenders. On July 25, 2003, the State

Defendants moved to dismiss the complaint for failure to state a claim. In support, the

Defendants filed a brief and appendix amounting to three volumes of evidence and

argument. Subsequently, Graham filed a packet of information in support of his claims,

but he did not respond to the motion to dismiss.

       Without opinion, the District Court issued a two-page order granting the State




                                               2
Defendants’ motion to dismiss and dismissed the complaint without prejudice.1 After the

dismissal, Graham sent a letter to the Court in which he explained that he received only

the envelope, but not the Defendants’ motion to dismiss. He also indicated that he wished

to appeal the dismissal. Graham did not serve a copy of the letter on the Defendants. The

District Court then entered a letter order on February 11, 2004, explaining that although

Graham was required to serve the Defendants with any filings, the Court would effectuate

service in this instance. The letter order also informed Graham that his letter would be

construed as a motion for reconsideration.2

       On February 17, 2004, Graham filed a notice of appeal stating his intent to appeal

the “letter of appeal” entered February 11, 2004, which we assume refers to the District

Court’s letter order. This Court issued a letter informing him that the appeal would be

submitted for dismissal for a possible jurisdictional defect under Borelli v. City of

Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam). After further review, a letter was sent

informing the parties that the reason for the District Court’s order dismissing the

complaint without prejudice is unclear. We directed the parties to address the question of

appellate jurisdiction in their briefs.

                                           II.


       1
           The District Court order does not mention Defendant Carol Bynum.
       2
          To this date, the District Court has not acted on the motion for reconsideration.
Further, the docket does not reflect that the letter was ever entered as a motion for
reconsideration. Rather, the letter is entered on the docket as “appeal of Court’s order.”
Thus, it appears that a motion for reconsideration was never filed by the Clerk.

                                                 3
       Ordinarily, an order is not final and appealable if it does not end the litigation with

respect to all claims and to all parties. See 28 U.S.C. § 1291; Republic Nat’l Gas Co. v.

Oklahoma, 334 U.S. 62, 68 (1948). The Appellees argue that because the District Court’s

order was entered without prejudice, the order is not final or appealable and we lack

jurisdiction. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per

curiam). However, Graham appeals from the District Court’s February 11, 2004, letter

order, which does not implicate Borelli.3

       The District Court’s letter order specifies that Graham’s February 4th letter will

be construed as a motion for reconsideration. The District Court Clerk, however, failed to

record that Graham’s letter was to be so construed. This appears to be a clerical error.

Under District of New Jersey Local Rule of Civil Procedure 7.1(i), a motion for

reconsideration from any order or judgment must be filed within ten-business days.

Graham filed a timely motion. Although the District Court docket does not reflect any

further motions upon which the Court must act, by the District Court’s own decree, a

motion for reconsideration is still pending.


       3
         As mentioned above, Nurse Bynum was not included in the District Court’s
order dismissing the complaint. However, this appears to be a clerical oversight, not an
intentional omission. The State Defendants’ motion to dismiss curiously fails to name
nurse Bynum, but refers to the Defendants collectively as the “State Defendants.” The
District Court adopted the term and dismissed the complaint against the “State
Defendants.” It appears that Bynum, a treatment center employee, is probably a State
Defendant, and was accidentally omitted from the motion, order, and subsequent
documents. Thus, it is likely that Nurse Bynum was intended to be included in the
dismissal and does not preclude jurisdiction.


                                               4
       An order construing a filing as a motion for reconsideration in this instance does

not “end[] the litigation on the merits and leave[] nothing for the court to do but execute

the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). Rather, it specifically

suggests that a decision on the motion will be issued. Further, it does not fall under the

collateral order doctrine because the order is not “important in a jurisprudential sense.”

Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 56 (3d Cir. 1991)

(citations and internal quotations omitted). The time for filing a notice of appeal does not

commence until the District Court issues an order disposing of the motion. See Fed. R.

App. P. 4(a)(4). Accordingly, the order is not appealable until the District Court rules on

the motion.4

       For the foregoing reasons, there is no final or appealable order at this time. We

will dismiss the appeal for lack of Jurisdiction.




       4
         Even if Graham intended to appeal the order dismissing the complaint without
prejudice, the filing of a timely motion for reconsideration prevents the notice from taking
effect until an order disposing of the motion is entered. See Fed. R. App. P. 4(a)(4)(B)(i).

                                              5
