                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2008

Velentzas v. Yates
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4010




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Recommended Citation
"Velentzas v. Yates" (2008). 2008 Decisions. Paper 1636.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1636


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HLD-55 (December 2007)                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                  No. 07-4010
                               ________________

                           SPYREDON VELENTZAS,
                                         Appellant

                                         vs.

     Warden S. A. YATES; ULISES VARGAS; FELIZ, (FNU) Health Services
   Administrator; J.G. ESPARZA, Asst. Warden Operations; UNITED STATES OF
   AMERICA; ROBERT G. MIGLIORINO, D.O. Clinical Director; MICKY RAY,
    Regional Director; KATHLEEN HAWK-SAWYER, Director Central Office

                    ____________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                            (D.C. Civ. No. 04-cv-00615)
                    District Judge: Honorable John E. Jones III
                  _______________________________________

Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                          Under Third Circuit LAR 27.4 and IOP 10.6
                                 December 21, 2007
         Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                             (Filed February 6, 2008)
                            ______________________

                                  OPINION
                           _______________________




                                        1
PER CURIAM.

              This is an appeal from the District Court’s denial of Spyredon Velentzas’s

motion to re-open his case. For the following reasons, we will summarily affirm. See

Third Circuit L.A.R. 27.4 and I.O.P. 10.6.

              In March 2004, Velentzas, a federal prisoner, initiated a Bivens action

against various prison officials.1 Velentzas alleged that he received sub-standard dental

care while housed at the Federal Correctional Institution in White Deer, Pennsylvania

(FCI-Allenwood). The District Court, adopting the Report and Recommendation of the

Magistrate Judge, dismissed his complaint on March 17, 2005. On October 1, 2007,

Velentzas filed a motion to re-open his case under Federal Rule of Civil Procedure 60(b)

and to re-open the time to file a notice of appeal under Federal Rule of Appellate

Procedure 4(a)(6). The District Court denied the motion and Velentzas appealed.

              We review the District Court’s denial of a Rule 60(b) motion for abuse of

discretion. See Brown v. Phila. Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003). We

likewise review the denial of Fed. R. App. R. 4(a)(6) relief for abuse of discretion. See

U.S. v. Rinaldi, 447 F.3d 192, 195 (3d Cir. 2006).

              Reopening the period in which to appeal is governed by Rule 4(a)(6).

Under 4(a)(6), a party must establish that he or she did not receive notice pursuant to Rule


              1
               In Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized a private cause of action
to recover damages against a federal agent for violations of constitutional rights.

                                             2
77(d) of the Federal Rules of Civil Procedure. Moreover, the 4(a)(6) motion must be

filed within 180 days of the entry of judgment or within 7 days of the party’s receipt of

notice, whichever is earlier. Appellant asserts that he did not receive notice that his case

had been dismissed until he received an August 17, 2007 Report and Recommendation in

a more recent lawsuit he filed in the same court.2 However, the last day to file a 4(a)(6)

motion would have been February 10, 2006, or 180 days after the entry of judgment.3

Therefore, the District Court did not abuse its discretion in denying Rule 4(a)(6) relief.

              The District Court also did not abuse its discretion in denying the motion

under Rule 60(b) of the Federal Rules of Civil Procedure. Velentzas’s only argument in

support of the 60(b) motion was that he did not receive notice of the District Court’s

dismissal. The rule in this circuit is clear: where the sole basis for a Rule 60(b) motion is

a party’s lack of notice, the motion must meet the time limitations of Rule 4(a). See Hall

v. Cmty. Mental Health Ctr. of Beaver County, 772 F.2d 42, 44 (3d Cir. 1985). As noted

above, Velentzas failed to meet the time limitations of Rule 4(a), therefore the District

Court properly denied his Rule 60(b) motion.

              Finally, the docket shows that Velentzas filed two documents after the



              2
                  Velentzas v. United States, No. 07-CV-1255 (M.D. Pa. filed July 11,
2007).
              3
               The District Court’s March 17, 2005 judgment did not comply with the
separate judgment rule. See Fed. R. Civ. P. 58(a). Thus, for Rule 4(a) purposes, the
judgment was entered 150 days after the entry of the judgment on the District Court civil
docket, or August 15, 2005. See Fed. R. App. P. 4(a)(7)(A)(ii).

                                              3
District Court closed the case. The filing on October 11, 2005, would be a timely motion

pursuant to Rule 4(a)(6), however, it did not evince an intent to appeal, let alone an intent

to request reopening the time to appeal. The June 12, 2006 letter requesting an update on

the status of his case would be untimely under any relevant provision of 4(a).

              Accordingly, because this appeal presents us with no substantial question,

we will summarily affirm the decision of the District Court. See Third Circuit L.A.R.

27.4 and I.O.P. 10.6.




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