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Feather-Gorbey v. Frazier

United States District Court, W.D. Pennsylvania

July 30, 2018

CHIEF MICHAEL S. OWL FEATHER-GORBEY, Plaintiff,
v.
MICHAEL FRAZIER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David Stewart Cercone Senior United States District Judge

         This matter comes before the Court on an "Renewed Notice of Appeal" (ECF No. 5) filed by Plaintiff, Michael S. Owl Feather-Gorbey ("Gorbey"), [1] 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 dismissed.

         Procedural History

         A. Case Filed in the Western District of Pennsylvania

         Gorbey 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).

         Having 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).

         On 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).

         On 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.

         B. Case Transferred to the MDPA

         As 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.

         On 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 follows:

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.

         On 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, ...


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