United States District Court, W.D. Pennsylvania
CHIEF MICHAEL S. OWL FEATHER-GORBEY, Plaintiff,
MICHAEL FRAZIER, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Stewart Cercone Senior United States District Judge
matter comes before the Court on an "Renewed Notice of
Appeal" (ECF No. 5) filed by Plaintiff, Michael S. Owl
Feather-Gorbey ("Gorbey"),  requesting review of the
magistrate judge's Order of December 4, 2017 (ECF No. 2),
which transferred this matter to the Middle District of
Pennsylvania pursuant to 28 U.S.C. § 1406(a). (ECF No.
5). Upon review of the matter raised by Gorbey, the Court
concludes that (1) Gorbey's appeal is untimely and (2)
even assuming arguendo that the appeal was timely
filed, the Order appealed from is neither clearly erroneous
nor contrary to law. Therefore, Gorbey's appeal will be
Case Filed in the Western District of Pennsylvania
commenced this case on November 27, 2017, by the filing of a
motion for leave to proceed in forma pauperis, with
an attached civil rights complaint. The case was referred to
Magistrate Judge Cynthia Reed Eddy for pretrial proceedings
in accordance with the Magistrate Judges Act, 28 U.S.C.
§ 636(b)(1), and the Local Rules of Court for Magistrate
Judges. Pursuant to 28 U.S.C. § 1915A, the magistrate
judge screened the complaint prior to service. The magistrate
judge found that Gorbey was raising claims concerning the
conditions of his confinement at USP Canaan, which is located
in Waymart, Wayne County, Pennsylvania, which is within the
territorial boundaries of the United States District Court
for the Middle District of Pennsylvania. 28 U.S.C. §
118(c). The complaint reflected that none of the parties were
located in the Western District of Pennsylvania and none of
the events giving rise to Gorbey's claims occurred in the
Western District of Pennsylvania. Thus, the magistrate judge
concluded that the Western District of Pennsylvania was an
improper venue under 28 U.S.C. § 1391(b).
determined that venue in the case was improper in this
district, the magistrate judge decided that, in the interests
of justice, rather than dismiss the case, the case should be
transferred to the Middle District of Pennsylvania
("MDPA") where venue was properly laid pursuant to
28 U.S.C. § 1406(a).
December 4, 2017, the magistrate judge entered an Order
transferring this case to the MDPA. (ECF No. 2). The
magistrate judge deferred to the transferee court a ruling on
Gorbey's in forma pauperis motion. On December
19, 2017, a "Rule 36 Motion to Correct Clerical
Mistakes, Motion for Hearing" was filed by Gorbey. (ECF
No. 3.) Notably, in that motion, Gorbey did not object to the
transfer of the case, but rather sought to correct the list
of defendants named in his complaint. Specifically, Gorbey
stated in his motion, "Where, Even though the case has
been transfer (sic), the Record should Reflect the proper
Defendants." Id. On January 4, 2018, the
magistrate judge entered a Text Order deferring ruling on the
Motion to Correct Clerical Mistakes and Motion for Hearing to
the transferee court. (ECF No. 4).
January 3, 2018, the case was transferred electronically to
the MDPA. Six months after the transfer, on July 10, 2018,
the Court received the instant "Renewed Notice of
Appeal." (ECF No. 5). Plaintiff states that he
originally submitted for filing a "Notice of
Appeal" dated January 7, 2018, but that document was
returned, unfiled, to him by the Clerk's Office with a
handwritten notation stating, "You have no cases in this
court. The case you reference was transferred to the Middle
District of PA. All filings should be sent there." (ECF
No. 5-1). Plaintiff does not indicate when he submitted the
original notice of appeal for filing or when he received the
returned, unfiled, notice of appeal.
Case Transferred to the MDPA
stated supra, the case was transferred
electronically to the MDPA on January 3, 2018. The case was
given case number 3:18-cv-00020 and assigned to District
Judge Robert D. Mariani. On February 20, 2018, Gorbey filed a
second motion for leave to proceed in forma pauperis
with the MDPA. The docket in the MDPA case reflects that, to
date, Gorbey has not filed in that court any motion objecting
to the transfer of the case to the MDPA.
February 28, 2018, the Court of Appeals for the Third Circuit
docketed a Petition for Writ of Mandamus filed by Gorbey.
See Docket C.A. No. 18-1414, United States Court of
Appeals for the Third Circuit. Named as "nominal
respondents" were Magistrate Judge Cynthia R. Eddy of
the WDPA and District Judge Robert Mariani of the MDPA. On
April 6, 2018, the court of appeals denied Gorbey's
request for mandamus relief, finding in relevant part as
To the extent that Petitioner's mandamus petition
complains about the order transferring his civil action from
the United States District Court for the Western District of
Pennsylvania ("the WDPA") to the MDPA, ....
Petitioner has not demonstrated that this case is the rare
instance where mandamus relief would be warranted. . . .
Lastly, to the extent that the petition could liberally be
construed as seeking to recuse the magistrate judge who was
assigned to Petitioner's case in the WDPA and/or the
district judge who is presiding over Petitioner's case in
the MDPA, that request is denied.
April 11, 2018, Judge Mariani denied Gorbey's motion for
in forma pauperis finding that Gorbey "is a
prolific filer who is subject to the three strikes provision
set forth in 28 U.S.C. § 1915(g)" and that he had
not shown that he was in imminent danger of serious physical
injury at the time he filed his complaint. See
Memorandum Opinion dated April 11, 2018. On July 8, 2018,
Gorbey filed a Notice of Appeal, ...