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


5-24-2006

Garland v. Malinich
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4320




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"Garland v. Malinich" (2006). 2006 Decisions. Paper 1047.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1047


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DPS-146                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-4320
                                  ________________

                                KENDALL GARLAND,

                                            Appellant
                                            v.

                           LT. MALINICH, SCI Houtzdale
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                             (D.C. Civ. No. 04-cv-00153J)
                       District Judge: Honorable Kim R. Gibson
                     _____________________________________

 Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 2, 2006

      BEFORE: ROTH, FUENTES and VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed May 24, 2006)

                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

       Kendall Garland appeals from the District Court’s order denying him leave to

amend his complaint following dismissal of his initial complaint pursuant to 28 U.S.C. §

1915. For the reasons set forth herein, we will summarily affirm the judgment of the
District Court.

       On November 10, 2004, Garland’s civil rights complaint was dismissed for failure

to state a claim upon which relief could be granted. Garland did not appeal that order.

Instead, on May 19, 2005, Garland sought leave of the District Court to amend his

complaint. His motion was referred to the Magistrate Judge to whom his case had

initially been assigned.1 The Magistrate Judge denied Garland’s motion to amend, and

denied a motion for reconsideration subsequently filed by Garland. Garland appealed to

the District Court, which, on August 1, 2005, affirmed the Magistrate Judge’s order. The

District Court held that Rule 15(b) of the Federal Rules of Civil Procedure permits post-

judgment amendment of a complaint only in limited circumstances not present in

Garland’s case. The Court further held that the Magistrate Judge had correctly

determined that none of the bases for granting relief from judgment under Rule 60(b)

were present and that the motion could not be considered under Rule 59(e) because it had

not been timely filed.

       On August 11, 2005, Garland delivered to prison officials a motion requesting

reconsideration of the District Court’s August 1 Order. Because, by that time, Garland

had already used $9.97 of the $10.00 he was allotted by the prison to be used for copying,




   1
       It is not clear from the record under what authority Garland’s post-judgment
motion for leave to amend the complaint was referred to the Magistrate Judge. The case
was initially referred to the Magistrate Judge for “pretrial proceedings in accordance with
the Magistrates Act, 28 U.S.C. § 636(b)(1).”

                                             2
postage, and filing of court documents for the month of August, the prison denied his

request for postage and informed him that his motion could not be posted until

September, when he would receive additional funds in his account. Thus, his motion for

reconsideration was not mailed until September 2. The District Court denied the motion

for reconsideration on September 19. Garland filed a notice of appeal on the same day.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Initially, we

must assess whether Garland’s appeal was timely filed. The District Court’s order

denying Garland leave to amend his complaint was entered on August 1, 2005. In the

order, the District Court characterized the Magistrate Judge’s June 22, 2005 order issued

with respect to that motion as an appropriate order on a pretrial matter and therefore

reviewed it under the “clearly erroneous or contrary to law” standard enunciated in 28

U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). We disagree with this

characterization of the order and the Magistrate Judge’s action. Garland’s motion was

properly characterized as a motion for relief from judgment pursuant to Federal Rule of

Civil Procedure 60(b). See Ahmed v. Dragovich, 297 F.3d 201, 208 (3d Cir. 2002)

(recharacterizing a post-judgment motion to amend as a Rule 59(e) or Rule 60 motion to

match the substance of the relief requested); see also 6 Charles Alan Wright, Arthur A.

Miller & Mary Kay Kane, Federal Practice & Procedure, § 1489 (noting that most courts

require a judgment to be set aside or vacated under Rule 59 or 60 before permitting post-

judgment amendment of a complaint under Rule 15). A Rule 60(b) motion for relief from



                                             3
judgment can only be referred to a magistrate pursuant to 28 U.S.C. § 636(b)(3), which

allows the district court to assign to the magistrate “additional duties . . . not inconsistent

with the Constitution and laws of the United States.” See Conetta v. Nat’l Hair Care

Ctrs., Inc., 236 F.3d 67, 74 (1st Cir. 2001); LeGear v. Thalacker, 46 F.3d 36, 37 (8th Cir.

1995); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 856 (5th Cir.

1991). When a motion is referred to a magistrate judge pursuant to § 636(b)(3), the

magistrate judge is not authorized to enter judgment for the court, but instead may issue

recommendations to the district court which are then subject to de novo review. See

Quarles, 925 F.2d at 856 n.5. We therefore view the Magistrate Judge’s June 22, 2005

order as a report & recommendation to the District Court. Thus, the time for Garland to

file an appeal to this Court did not begin to run until the District Court entered its order

adopting the recommendation of the Magistrate Judge on August 1, 2005.

       We next consider whether Garland’s motion for reconsideration tolled the time to

timely file an appeal. To toll the time for appeal, a motion for reconsideration must be

filed within ten days of entry of the final order. Fed. R. App. P. 4(a)(4)(A)(iv) & (vi).

Here, Garland asserts that he delivered the motion for reconsideration to prison officials

on August 11, 2005, but did not have sufficient funds in his account to post the motion

until September. While Houston v. Lack, 487 U.S. 266 (1988), provides that a notice of

appeal is deemed filed at the time it is delivered to prison authorities to be mailed to the

court clerk, id. at 276, it does not explicitly address a situation such as this. However,



                                               4
since Appellee did not question the timeliness of this motion in the District Court and has

not raised this issue in response to the Clerk’s letter indicating that this Court would

consider whether the appeal was timely filed, we deem the issue to be waived, and

consider the motion for reconsideration to be timely filed on the date it was delivered to

prison officials. Cf. Eberhardt v. United States, __ U.S. __, 126 S. Ct. 403, 407 (2005)

(per curiam) (holding that government waived defense of untimeliness to motion

requesting new trial by failing to raise issue prior to adjudication on the merits).

       The motion for reconsideration was denied by the District Court on September 19,

2005, and the notice of appeal was received by the District Court that same day. Thus,

the District Court’s August 1 denial of leave to amend the complaint post-dismissal is

properly before this Court. The District Court held that Garland’s motion to amend was

untimely under Rule 59(e) and without basis under Rule 60(b). Rule 60(b) provides for

relief from judgment based on (1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of an

adverse party; (4) a void judgment; (5) the satisfaction, release or discharge of a judgment

or inequity in the prospective application of the judgment; or (6) any other reason

justifying relief from operation of the judgment. In his motion, Garland offers no

justification pursuant to Rule 60(b) to grant his motion. At most, he argues that he “only

recently came to realize that this complaint could be amended to cure defects.” The

District Court was correct in concluding that Garland’s misunderstanding does not



                                              5
provide a basis on which to reopen the judgment. All of the facts alleged by Garland in

his proposed amended complaint were within his knowledge at the time he filed his

original complaint. At this stage in the proceedings, “a judgment generally will be set

aside only to accommodate some new matter that could not have been asserted during the

trial, which means that relief will not be available in many instances in which leave to

amend would be granted in the prejudgment situation.” 6 Wright et al., Federal Practice

& Procedure, § 1489. Because Garland cannot satisfy the requirements of Rules 59(e) or

60(b), his motion to reopen the judgment and amend the complaint were properly denied.2

       For the reasons set forth herein, we conclude that this appeal presents no

“substantial question,” and will therefore summarily affirm the District Court’s decision.

3d Cir. LAR 27.4 & I.O.P. 10.6.




   2
        We recognize that, due to the operation of 28 U.S.C. § 1915, Garland’s original
complaint was dismissed at a very early stage in the proceedings. It is the policy of this
circuit not to dismiss a complaint pursuant to § 1915 when the defects can be cured by
amendment. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Were this an appeal from the District Court’s initial decision, our analysis would be
different. At this stage in the proceedings, however, the judgment would have to be
reopened under Rule 60(b) before we could reach the application of Rule 15.

                                             6
