EDWARDS v. GAHM

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MR. RENÉ D. EDWARDS, 1:16-cv-5702-NLH-AMD

Plaintiff, OPINION

v.

JAMES R. GAHM, et al.,

Defendants.

APPEARANCES:

RENÉ D. EDWARDS

SUMMIT PLACE APARTMENTS

411 EAST GIBBSBORO ROAD

APT. 110

LINDENWOLD, NJ 08021

Appearing pro se

MELIHA ARNAUTOVIC

OFFICE OF THE ATTORNEY GENERAL OF NJ

25 MARKET ST, 7TH FL, WEST WING

PO BOX 116

TRENTON, NJ 08625

On behalf of Defendants

HILLMAN, District Judge

This case concerns claims by Plaintiff regarding his arrest

and conviction for violating the Sex Offender’s Monitoring Act,

a conviction which was vacated four years later after the New

Jersey Supreme Court deemed the retroactive application of the

Act to be unconstitutional. On November 1, 2018, this Court

granted Defendants’ motions to dismiss Plaintiff’s claims

against them, concluding that while the Court was cognizant of

the harms the Plaintiff had suffered as a result of his

incarceration, which included a vicious beating by a cellmate

and serious bodily injuries, the named Defendants could not held

liable as a matter of law for the claims Plaintiff has asserted

against them.1 (Docket No. 50 at 26-27.)

On December 11, 2018, Plaintiff filed a notice of appeal

with United States Court of Appeals for the Third Circuit.

(Docket No. 52.) On May 1, 2019, the Third Circuit dismissed

Plaintiff’s appeal because it was untimely. (Docket No. 54.)

The Third Circuit explained:

The appeal is dismissed for lack of appellate jurisdiction.

Appellant filed a notice of appeal concerning the District

Court’s November 1, 2018 order dismissing his claims

1 The Court also noted that Plaintiff had filed eleven other

actions in this Court against various defendants arising out of

his GPS monitoring and what occurred while he was incarcerated

due to the Sex Offender Monitoring Act violation charge. All

those cases have been closed, except for his most recent one -

18-cv-11955 - which is at the complaint screening process stage,

and in which Plaintiff has filed essentially identical motions

to the ones pending here. See EDWARDS v. THE HILLMAN GROUP,

COMPANY et al. 1:18-cv-11955-NLH-JS; EDWARDS V. GRANT 1:17-cv-

07229-NLH-KMW; EDWARDS v. THE ATTORNEY GENERAL OF THE STATE OF

NEW JERSEY et al. 1:14-cv-02802-NLH; EDWARDS v. FALVEY 3:14-cv-

05753-PGS-TJB; EDWARDS v. COMMISSIONER OF SOCIAL SECURITY 1:13-

cv-07731-NLH; EDWARDS v. STATE OF NEW JERSEY 3:13-cv-06523-PGS;

EDWARDS v. V.C.C.B. BOARD MEMBERS et al. 1:13-cv-03635-NLH-JS;

EDWARDS v. BAYSIDE STATE PRISON et al. 1:13-cv-00833-NLH-AMD;

EDWARDS v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY et

al. 1:13-cv-00448-RBK; EDWARDS v. STATE OF NEW JERSEY et al.

1:13-cv-00214-NLH-JS; EDWARDS v. THE STATE OF NEW JERSEY et al.

1:08-cv-05617-RMB-KMW.

against all of the defendants. Appellant was required to

file his notice of appeal with the District Court Clerk by

Monday, December 3, 2018, within the applicable thirty-day

appeal period measured after entry of the judgment or

order. See Fed. R. App. P. 4(a)(1)(A). See also Fed. R.

App. P. 26(a)(1)(C) (a calculated period ending on a

Saturday, Sunday, or legal holiday is extended to include

the next day that is not a Saturday, Sunday, or legal

holiday). Appellant’s notice of appeal, filed on December

11, 2018, was untimely. It is well-settled that “the

timely filing of a notice of appeal is a jurisdictional

requirement.” Bowles v. Russell, 551 U.S. 205, 213-14

(2007). Accordingly, we lack jurisdiction over the appeal,

and we do not reach the motions filed by Appellant.

(Id.)

Currently pending before this Court are four motions filed

by Plaintiff: (1) MOTION to Reopen the Time to File an Appeal

[55]; (2) MOTION To File, New Federal Judge, Chief Of Federal

[57]; (3) MOTION For Oral Argument and Trial [60]; and MOTION to

Reopen and Process New Evidence [67]. For the reasons expressed

below, all of Plaintiff’s motions will be denied.

(1) MOTION to Reopen the Time to File an Appeal [55]

Plaintiff argues that his time to appeal should be reopened

because he did not receive notice of the Court’s November 1,

2018 Opinion and Order dismissing his case until “several weeks

later,” and only after he called the Clerk’s Office, which

informed him that his case had been dismissed.2 Plaintiff has

2 Plaintiff also asks that this Court use its discretion to

construe his December 11, 2018 notice of appeal as timely.

While Appellate Rule 4(a) does allow this Court to extend the

time to appeal or reopen the time for appeal, it is ultimately

for the Third Circuit Court of Appeals to determine that issue

moved for this relief pursuant to Federal Appellate Rule

4(a)(6).

The Federal Rules of Civil and Appellate Procedure provide

a limited remedy to a party who has failed to file his notice of

appeal within the applicable deadline, which in this case was 30

days after the November 1, 2018 decision. Under Fed. R. Civ. P.

77(d), “Immediately after entering an order or judgment, the

clerk must serve notice of the entry, as provided in Rule 5(b),

on each party who is not in default for failing to appear. The

clerk must record the service on the docket. A party also may

serve notice of the entry as provided in Rule 5(b).” Rule 77(d)

further provides, “Lack of notice of the entry does not affect

the time for appeal or relieve--or authorize the court to

relieve--a party for failing to appeal within the time allowed,

except as allowed by Federal Rule of Appellate Procedure

(4)(a).”

Appellate Rule 4(a) provides a procedure for reopening the

time to file a notice of appeal when the party desiring to

appeal does not receive notice of the entry of the judgment or

order. “In a civil case, [] the only way in which a party may

obtain relief based on a clerk's failure to serve notice of the

entry of a judgment or order is via Appellate Rule 4(a) . . . .”

and that Court has already determined that Plaintiff’s appeal

was untimely. The passage of more time cannot cure that defect.

Poole v. Family Court of New Castle County, 368 F.3d 263, 266

(3d Cir. 2004).

Appellate Rule 4(a)(5) states in relevant part, “The

district court may extend the time to file a notice of appeal if

. . . a party so moves no later than 30 days after the time

proscribed by this Rule 4(a) expires. . . .” Appellate Rule

4(a)(6) contains similar language: “The district court may

reopen the time to file an appeal . . . if . . . the motion is

filed within 180 days after the judgment or order is entered or

within 7 days after the moving party receives notice of the

entry. . . .”

Here, Plaintiff claims that he filed his notice of appeal

too late because he did not receive notice from the Clerk “until

several weeks later.” (Docket No. 55 at 3.) Plaintiff does not

provide the date he received notice of the November 1, 2018

decision, which would inform the Court of whether Plaintiff’s

30-day window to appeal had already expired, and whether relief

under Appellate Rule 4(a)(5) was still available to Plaintiff.

Even accepting that Plaintiff received late notice,3 his

3 The Court has no reason to believe that the Clerk failed to

comply with Fed. R. Civ. P. 77(d). Plaintiff, who is not a

lawyer and is proceeding pro se is not an electronic filer with

access to the Court’s electronic docket. In such cases, it is

the practice of the Clerk’s Office to send via regular mail

copies of all docket entries to parties who do not have access

to the electronic docket and then document such a mailing on the

docket. In this matter, the “display receipts” for the docket

time to appeal had expired, and he could not avail himself of

the remedy under Appellate Rule 4(a)(5), Plaintiff’s current

application under Appellate Rule 4(a)(6) is without force.

Plaintiff admits that he received notice of the November 1, 2018

decision several weeks after its docketing, which resulted in

Plaintiff filing his December 11, 2018 notice of appeal.

Accepting for the sake of Plaintiff’s motion that he was first

notified of this Court’s November 1, 2018 decision on December

11, 2018, at that time Plaintiff had seven days under Appellate

Rule 4(a)(6) to file a motion in this Court seeking relief under

that Rule to have his time to appeal reopened. Plaintiff failed

to do so.

Even providing Plaintiff with Appellate Rule 4(a)(6)’s 180-

day maximum period to seek relief under that rule from the date

of the Court’s November 1, 2018 decision, Plaintiff had until

April 30, 2019 to file his Appellate Rule 4(a)(6) motion.

Plaintiff did not file his instant Appellate Rule 4(a)(6) motion

until June 6, 2019.

It may not seem fair to Plaintiff that his appeal was

dismissed as untimely the day after the Appellate Rule 4(a)(6)

entries containing the Court’s November 1, 2018 Opinion and

Order show that the Clerk’s Office sent those items by “regular

U.S. Mail” to Plaintiff’s Lindenwold, New Jersey address, which

remains Plaintiff’s current address, on the same day - November

1, 2018 – the Opinion and Order were entered on the docket.

(Docket No. 50, 51.)

180-day period expired, and he may not have been aware of his

need to avail himself of the relief under Appellate Rule 4(a)(6)

until it was too late, but pro se parties “cannot flout

procedural rules,” and “they must abide by the same rules that

apply to all other litigants.” Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 244 (3d Cir. 2013); see also McNeil v. United

States, 508 U.S. 106, 113 (1993) (pro se litigants “must still

plead the essential elements of [their] claim and [are] not

excused from conforming to the standard rules of civil

procedure,” and “we have never suggested that procedural rules

in ordinary civil litigation should be interpreted so as to

excuse mistakes by those who proceed without counsel. . . .”).

Like all other parties, Plaintiff was required to consider the

Federal Civil and Appellate Rules of Procedure when prosecuting

his claims in this Court and his appeal in the Third Circuit.

See Sykes v. Blockbuster Video, 205 F. App’x 961, 963 (3d Cir.

2006) (“[A] litigant's compliance with the Federal Rules of

Civil Procedure is expected whenever he or she files a lawsuit

in federal court.”); cf. Brown v. New Jersey State Parole Bd.,

2006 WL 231830, at *4 (D.N.J. 2006) (“[T]to the extent that

Petitioner's failure to file a timely appeal resulted from

attorney error, Petitioner has not established ‘cause.’ To the

extent that Petitioner was acting pro se when he failed to file

a timely notice of appeal in the Appellate Division, his own

ignorance is not ‘cause.’ Neither a pro se prisoner’s ignorance

of the procedural rule nor inadvertence satisfies the cause

standard.”).

These rules “may appear harsh,” but “the apparent harshness

of the rule[s] is mitigated somewhat by the policy

considerations which underlie [them].” Baker, 534 F. Supp. 2d

at 582. “[R]elief under Rule 4(a)(6) is not freely available

because it was designed not to unduly affect the time when

judgments become final.” Id. (quoting Marcangelo v. Boardwalk

Regency, 47 F.3d 88, 90 (3d Cir. 1995)). “By providing a

limited opportunity to reopen the time for appeal, Rule 4(a)(6)

balances the inequity of foreclosing appeals by parties who do

not receive actual notice of a dispositive order against the

need to protect the finality of judgments.” Id. (citation and

quotation omitted). Moreover, the appellate rules in

conjunction with Fed. R. Civ. P. 77(d), are “designed to

encourage parties to diligently monitor the status of their

cases so as to protect their appellate rights.” Id.; see also

Reyes v. Samuel, 2008 WL 228135, at *2–3 (D.N.J. 2008) (citing

Arai v. American Bryce Ranches, Inc., 316 F.3d 1066, 1070 (9th

Cir. 2003)) (finding that the “purpose of Rule 4(a)(6) is only

to soften the harsh penalty of losing one’s right to appeal

because of the court’s failure to notify a party of a judgment,

not to allow parties to file late appeals,” and noting that the

plaintiff pleaded ignorance of the law and rules, but finding

that it had no power to reopen the time in which to appeal

pursuant to Rule 4(a)(6)).

“[T]he timely filing of a notice of appeal in a civil case

is a jurisdictional requirement,” and the U.S. Supreme Court has

found that neither it nor any lower court has “authority to

create equitable exceptions to jurisdictional requirements.”

Bowles v. Russell, 551 U.S. 205, 214 (2007). Accordingly,

because Plaintiff did not comply with the applicable Appellate

Rules, this Court has no authority or ability to permit

Plaintiff to file a second appeal and deem it timely.

(2) MOTION To File, New Federal Judge, Chief Of Federal [57]

(3) MOTION For Oral Argument and Trial [60]

(4) MOTION to Reopen and Process New Evidence [62]

Plaintiff’s three other motions ask that the Court hold oral

argument on his underlying claims, reopen his case to process new

evidence, and also seek this Court’s recusal. Because Plaintiff’s

case has been closed and his request to reactive his case has been

denied, there is no pending matter about which to hold oral

argument. Plaintiff’s motions requesting oral argument must be

denied.

For Plaintiff’s request seeking this Court’s recusal, a

determination regarding recusal is within the sound discretion

of the trial court judge. United States v. Wilensky, 757 F.2d

594, 599–600 (3d Cir. 1985). The two principal statutes which

address judicial recusal are 28 U.S.C. §§ 144 and 455. Under 28

U.S.C. § 144, recusal must occur “[w]henever a party to any

proceeding in a district court makes and files a timely and

sufficient affidavit that the judge before whom the matter is

pending has a personal bias or prejudice either against him or

in favor of any adverse party.” 28 U.S.C. § 144. A

“substantial burden is imposed on the party filing an affidavit

of prejudice to demonstrate that the judge is not impartial.”

Ali v. United States, 2015 WL 6502108, at *1 (D.N.J. 2015)

(citing Frolow v. Wilson Sporting Goods Co., 2011 WL 1337513, at

*2 (D.N.J. 2011) (citation omitted); Kilkeary v. United States,

2015 WL 3798061, at *4 (D.N.J. 2015)).

Alternatively, § 455(a) provides, in pertinent part, that

“[a]ny justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a). “The test

for recusal under § 455(a) is whether a reasonable person, with

knowledge of all the facts, would conclude that the judge's

impartiality might reasonably be questioned.” Allen v. Parkland

Sch. Dist., 230 F. App'x 189, 193 (3d Cir. 2007) (citing In re

Kensington Int'l Ltd., 368 F.3d 211, 220 (3d Cir. 2004)).

Plaintiff accuses this Court of defrauding Plaintiff of a

fair civil process. Plaintiff also argues that this Court must

be recused from his case because the undersigned is a defendant

in a separate action filed by Plaintiff. Plaintiff cites to

Civil Action 18-11955, EDWARDS v. THE HILLMAN GROUP, COMPANY et

al., which arises out of the same factual allegations as this

case. The Plaintiff is mistaken. The undersigned is not a

named defendant in that case. While there is a defendant named

“The Hillman Group,” which is alleged to be the manufacturer of

the combination lock used by Plaintiff’s cellmate to beat him,

this Court has no affiliation with such an entity.4

Plaintiff’s arguments do not satisfy the high standard a

litigant must meet to require recusal. “[W]here, as here, a

litigant is simply dissatisfied with the District Court’s legal

rulings,” “neither [§ 144 nor § 455] “provides a basis for

recusal.” Hairston v. Miller, 646 F. App’x 184, 188 (3d Cir.

2016) (citing Securacomm Consulting, Inc. v. Securacom Inc., 224

F.3d 273, 278 (3d Cir. 2000) (“We have repeatedly stated that a

party’s displeasure with legal rulings does not form an adequate

basis for recusal.”); Petrossian v. Cole, 613 F. App’x 109, 112

(3d Cir. 2015) (“Neither of these statutes provide a basis for

recusal where a litigant is simply displeased, as Petrossian was

(and is), with a prior adverse ruling.”). Moreover, “the mere

fact that [a judge] may be one of the numerous federal judges

4 In Civil Action 18-11955, EDWARDS v. THE HILLMAN GROUP, COMPANY

et al., pending are two motions: “MOTION on Resignment” and

“MOTION for Trial, Impeachment.”

that [a litigant] has filed suit against is not sufficient to

establish that . . . recusal from his case is warranted under 28

U.S.C. § 144 or § 455(a).” Azubuko v. Royal, 443 F.3d 302, 304

(3d Cir. 2006); see also Mina v. Chester County, 679 F. App’x

192, 196 (3d Cir. 2017) (“Mina sought to name the District Judge

as a defendant in the action (in an unauthorized amendment to

the complaint) (and has since filed suit against him). However,

the addition of the District Judge’s name to the long list of

conspirators, which already included other judges that had ruled

against Mina, was an attempt to bring a baseless suit against

the District Judge. It was not a basis for recusal.”).

Plaintiff’s motion to recuse will be denied.

CONCLUSION

For the reasons expressed above, Plaintiff’s four motions

are without merit, and, accordingly, Plaintiff’s motions must be

denied.

An appropriate Order will be entered.

Date: December 5, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.