Opposition Brief — Burchill v. Kish

No. 93-1311 | OcGhal UF wit CUBS

svaenmeresn ,

In The

Supreme Court of the United States

October Term, 1993

ROBERT GEORGE BURCHILL,

Petitioner,

versus

DOUGLAS KISH, ef al.,

Respondents.

Petition For a Writ of Certiorari

To The United States Court of Appeals

For the Third Circuit

BRIEF IN OPPOSITION

Henry S. Perkin,

Counsel of Record

Lehigh County Department

of Law

Sth & Hamilton Streets

Allentown, PA 18101

(610) 820-3180

Counsel for the

Respondent

County of Lehigh

\\t>

i

QUESTION PRESENTED FOR REVIEW

WHETHER THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT PROPERLY AFFIRMED THE

DISMISSAL OF PETITIONER’S COMPLAINT WITH

PREJUDICE BASED ON PETITIONER’S FAILURE TO

OBEY A COURT ORDER REQUIRING HIM TO FILE AN

AMENDED COMPLAINT BY A DATE CERTAIN.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ...--ecees i

TABLE OF AUTHORITIES .....--+++++eeee85 iil

COUNTERSTATEMENT OF THE CASE .......-.-. |

SUMMARY OF ARGUMENT ......-+++++eee7%% 2

ARGUMENT ..cccocces seo seeteesenees es 3

COMCLIIGION oo 0 0k 6 HONS eee ee eee 6

TABLE OF AUTHORITIES

Page

Glass v. Seaboard C.L.R. Co.,714 F.2d 1107

I Gad & © we ey ©. 66 0 0-00 60 6 ow oe 6

Hewlett v. Davis, 844 F.2d 109 (3rd Cir. 1988) ...... 4

Link v. Wabash R.R., 370 U.S. 626,

8 L.Ed. 2d 734, 82 S.Ct. 1386 (1962) ............ 3

McConnell v. Medical & Ben. Plan, 778 F.2d 521

TCE Feb ets bcos ce cbc edb bes oe es 6

Mindek v. Rigatti, 964 F.2d 1369 (3rd Cir. 1992) ..... 4

NLRB vy. Pittsburgh S.S. Co., 340 U.S. 498,

95 L.Ed. 479. 71 S.Ct. 453 (1951) .............. 3

Shempp v. School District, 184 F.Supp. 381

IS oy. dis a UG o/b o Ove 6 oe 6 0 0's 60s 5

U.S.N. Co. v. American Express Co., 55 F.R.D. 31

NT L's ica dina és ce ereevesecscccece 3

Wiss v. Weinberger, 415 F.Supp. 293

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TABLE OF AUTHORITIES - Continued

. R.Civ.P. 6(e) .

R.Civ.P. 41(b)

R.Civ.P. 59(e)

. R.Civ.P. 60 ..

. Ct. Rule 10.1.

. Ct. Rule 10. 1(a)

COUNTERSTATEMENT OF THE CASE

Petitioner, Robert George Burchill, and attorney,

admitted to the practice of law before the Supreme Court of

Pennsylvania and the United States District Court for the

Eastern District of Pennsylvania, filed a complaint pursuant to

42 U.S.C. Section 1983 alleging that his civil rights were

violated by Respondent County of Lehigh "County

Respondents") and sixteen (16) additional respondents.

Petitioner’s complaint alleged that the County Respondents

violated Petitioner’s constitutional rights during the May 13,

1990 arrest of Petitioner and search of his home.

In response to various motions filed by all of the

respondents, the United States District Court for the Eastern

District of Pennsylvania (hereinafter the "District Court")

entered an order on February 22, 1993 conditionally dismissing

Petitioner’s complaint subject to his right to file an amended

complaint within 21 days. On March 9, 1993, the District

Court entered an order granting Petitioner’s motion to enlarge

the time for filing an amended complaint. Under the terms of

the March 9, 1993 order:

Plaintiff's Amended Complaint shall be filed within

twenty-one (21) days of the date of this order or this

case will be dismissed with prejudice. NO FURTHER

EXTENSIONS WILL BE PERMITTED.

Accordingly, Petitioner’s amended complaint was to be

filed Sy March 31, 1993, 21 days after the March 9, 1993

order. Petitioner, a practicing attorney, failed to file an

amended complaint within the time period prescribed.

Thereafter, on April 6,1993 the District Court entered an order

dismissing Petitioner's complaint with prejudice as to all

respondents.

Petitioner then filed an appeal to the United States

2

Court of Appeals for the Third Circuit (hereinafter the "Court

of Appeals"). The Court of Appeals, by order dated November

12, 1993, affirmed the April 6, 1993 judgment of the District

Court. By order dated December 16, 1993, the Court of

Appeals denied Petitioner's petition for rehearing. Petitioner

thereafter filed a petition for writ of certiorari with this Court.

SUMMARY OF ARGUMENT

In his petition for writ of certiorari, Petitioner fails to

identify how-the decision of the Court of Appeals conflicts

with the decision of another federal court of appeals on the

same matter so as to call for an exercise of this Court’s power

of supervision. See Rule 10.1(a) of the Rules of this Court.

The decisions of the District Court and the Court of Appeals

are consistent with the judicial interpretations of Fed. R.Civ.P

41(b) which confirm a court’s power to dismiss an action based

on a plaintiff's failure to comply with an order of court.

Moreover, Petitioner has failed to offer any reason

justifying relief from judgment under Fed. R.Civ.P. 60. In

essence, Petitioner's argument is that the rules regarding

computation of time set forth in Fed. R.Civ.P. 6 were not

applied properly. Not only is this argument flawed, such an

issue is not one which involves any “special and important

reasons” justifying the grant of certiorari. Rule 10.1(a) of the

Rules of this Court.

ARGUMENT

4 This Case Does Not Involve Special or Important

Reasons for The Granting of Certiorari

As the Rules of this Court provide, certiorari will be

granted “only when there are special and important reasons

3

therefor". Rule 10.1. The case at bar involves no such reasons

and the decisions of the courts below realistically have no

impact on anyone other than the parties to this suit. This

Court has previously held that certiorari is to be granted only

in cases involving principles, the settlement of which is

important to the public generally rather than to the parties

specifically, and in cases where there is a real conflict of

opinion and authority between courts of appeals. NLRB v.

Pittsburgh S.S. Co.,340 U.S.498, 95 L.Ed. 479, 71 S.Ct. 453

(1951).

In the present case, the decisions below involved the

straightforward application of the Federal Rules of Civil

Procedure and the very clearly stated directives by the trial

court. Petitioner has identified no decision of any court of

appeals that conflicts with the decisions of the courts below.

Il. ‘Dismissal of Petitioner’s Suit Under Federal Rule of

Civil Procedure 41(b) Was Proper

Under Federal Rule of Civil Procedure 41(b), where a

plaintiff fails to comply with an order of court, a defendant

may move for dismissal of the action. It is also well settled

that a court may dismiss an action on its own motion where a

plaintiff does not comply with an order of court. Link v.

Wabach R.R., 370 U.S.626,8 L.Ed.2d 734, 82 S.Ct. 1386

(1962); U.S.N. Co. v. American Express Co., 55 F.R.D. 31

(E.D.Pa. 1972). The March 9, 1993 order of the District Court

was clear and self -executing. The order mandated that

Petitioner’s amended complaint be filed within 21 days of the

date of the order or the case would be dismissed with

prejudice. There is no dispute that Petitioner’s amended

complaint was filed beyond this deadline. Petitioner was given

ample opportunity to properly state his claims and file the

necessary pleadings.

A dismissal under Fed. R.Civ.P. 41(b) for failure of a

plaintiff to comply with an order of court is a matter resting

within the sound discretion of the trial court. Such a dismissal

will be reversed on appeal only for an abuse of discretion.

Hewlett n. Davis, 844 F.2d 109 (3rd Cir.1988). Where, as

here, a litigant flagrantly violates or ignores a court order, a

district court often has no appropriate recourse other than

dismissal. Mindek v. Rigatti, 964 F.2d 1369 (3rd Cir. 1992).

Ill. Petitioner Did Not Advance Any Basis For Obtaining

Relief From Judgment

Fed. R.Civ.P. 60 sets forth the bases for obtaining

relief from a judgment or order: clerical mistakes; mistake,

inadvertence, surprise or excusable neglect; newly discovered

evidence; fraud; the judgment is void; the judgment has been

satisfied; any other reason justifying relief from the judgment.

Petitioner has not articulated any of these bases. Indeed,

Petitioner filed his motion for relief from judgment on April

21, 1993 with the District Court, and then, before that motion

could be considered, he filed an appeal to the Court of

Appeals. As the District Court correctly observed, when

Petitioner filed his appeal he deprived the District Court of

jurisdiction over the case and prevented it from ruling on his

motion for relief from judgment. Shempp v. School District,

184 F.Supp. 381 (E.D. Pa. 1959).

Petitioner’s argument is based upon an erroneous

interpretation of Fed. R.Civ.P. 6 that would presumably allow

his amended complaint to be considered filed in a timely

manner. It is beyond dispute that Petitioner’s amended

complaint was filed with the District Court on April 8,1993,

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ep emcee ane Ne A Se, =. thier aati

5

two days after the order dismissing the case was entered.

Subsection(e) of Fed. R.Civ.P.6 provides that when a party is

required to act within a prescribed period after the service of

notice by mail,3 days shall be added to the prescribed period.

Regardless of whether Petitioner chooses to interpret the date

of the District Court’s order as March 9, 1993 or March 11,

1993, his amended complaint was filed beyond the deadline

taking into account the 3-day period set forth in Fed. R.Civ.P.

6(e).

Petitioner claims tHat because his amended complaint

was mailed on April 5,1993, this constitutes timely filing.

Under Fed. R.Civ.P.5(e), "filing with the court” is defined as

the filing of a pleading or other paper with the clerk of court.

Filing does not occur when a pleading or paper is deposited in

the mail; rather, it occurs when the pleading is received by the

clerk of court or the judge, in an appropriate case. Petitioner’s

assertion confuses the service of his amended complaint with

the filing of his amended complaint. Under Fed. R.Civ.P.

5(b), service by mail is complete upon mailing. However, the

same is not true of papers filed by mail. Wiss v. Weinberger,

415 F.Supp.293 (E.D. Pa. 1976). In summary, Petitioner

failed to file a timely amended complaint in violation of a court

order.

The issues raised by the Petitioner involve matters

which were within the sound discretion of the trial court. They

do not involve issues which are of such import as to require

review by the Supreme Court of the United States.

IV. To the Extent That Petitioner’s Motion Is Considered

a Motion to Alter or Amend a Judgment It was No

Timely Filed |

Federal Rule of Civil Procedure 59(e) requires that a

6

motion to alter or amend a judgment be served within ten days

after the entry of the judgment. The ten-day time period

contained in this Rule is jurisdictional and cannot be extended

in the discretion of the District Court. See Glass v. Seaboard

C.L.R. Co. ,714 F.2d 1107 (11th Cir. 1983). In the case at bar,

the judgment dismissing the case was entered on April 6, 1993

and Petitioner’s motion was not served until April 17, 1993,

beyond the ten-day deadline. This time limitation is to be

strictly construed. McConnell v. Medical & Ben. Plan, 778

F.2d 521 (9th Cir. 1985).

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

Lehigh County’ Department of

Law

Henry S. Perkin

Lehigh County Courthouse

Sth and Hamilton

Streets

Allentown, PA 18101

(610) 820-3180

home at 2120 Latta Street. Initially, they

checked the said of the home and when they

did not discover anything, they then

proceeded to the front door. The door was

closed, but the officers could see inside the

home by looking through the glass located on

either side of the door. Cpl. Kish could see

inside an area later determined to be the

kitchen, and observed that a light was on as

well as the television. Cpl. Kish then rang

the doorbell, and after doing so observed an

individual, later determined to be the

defendant, come from the kitchen area to the

front door. The door was opened and Cpl.

Kish was confronted by the defendant, who was

wearing a jacket, sun glasses, his hair

appeared wet, and most importantly he was

carrying a gun in his right hand. The gun

was a .357 magnum, which was loaded with five

"jacketed hollow-point bullets".

Additionally, when Officer Rehrig opened the

cylinder, he discovered that directly in line

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with the barrel was a discharged cartridge.

When Cpl. Kish observed the gun, he

immediately shined his flashlight in the

defendant's eyes, yelled "gun" to Officer

Rehrig, and drew his service weapon. The

defendant was ordered to drop his weapon and

when he complied, Cpl. Kish “advised him to

turn and face the wall, drop to his knees,

and put his hands behind his head and

interlock his fingers". The defendant

complied and the officers secured him. Cpl.

Kish also patted him down and in his right

front pants pocket discovered a set of metal

knuckles.

When the defendant was secured, Cpl. Kish

went through the home to look for ‘victims or

other persons. The reason for this action

was the information which brought them to the

home, which included shots and a woman

screaming. His route included the kitchen

area, where he observed on the kitchen table,

in plain view, a jar with green vegetable

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matter, and a Miller Light can rigged for the

smoking of marijana.

Cpl. Kish continued to search for victims

in the basement, and in plain view observed

broken television sets with what appeared to

be bullet holes in each one.

Upon completion of his search for victims

and upon the arrival of the defendant's

parents, defendant was removed from the

residence and taken to a patrol vehicle by

officers of the South Whitehall Police

Department. While the defendant was being

taken to the patrol vehicle, he threatened

the officers and stated "I'm going to kill

all of you".

From 2120 Latta Street the defendant was

taken back to police headquarters, and at

23:24 hours was given his Miranda warnings.

The defendant acknowledged his rights, waived

them, and agreed to speak with Cpl. Kish.

During the interview, he told Cpl. Kish that

he had been drinking all weekend, and that he

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had had approximately two six packs of Miller

Light prior to the officers arriving.

Initially, he told Cpl. Kish that he had not

been shooting his weapon. but later stated

that he was shooting the gun at a pheasant in

the back yard.

He also stated that "he likes

to stand at the top of the steps and shoot

his .357 magnum at the bottom of the steps as

he was watching championship wrestling".

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT GEORGE BURCHILL

Vv.

DOUGLAS KISH, SCOTT R. :

REHRIG, MICHAEL HARBOVE, :

DONALD K. MacCONNELL, :

ARTHUR SPITKO, THOMAS

TOTH, SOUTH WHITEHALL :

POLICE DEPARTMENT, SOUTH:

WHITEHALL TOWNSHIP, :

KELLY WALDRON, ROBERT

L. STEINBERG, LEHIGH

COL. TY DISTRICT ATTyY'sS

OFFICE, LEHIGH COUNTY,

ALLENTOWN HOSPITAL/

HEALTHEAST, DR. PAUL

GROSS, CLYDE R. BOWER, :

JOEN DOE and RICHARD ROE:

CIVIL ACTION

NO. 92-2776

ORDER

AND NOW, this 22nd day of February, 1993,

plaintiff Robert George Burchill is

apparently an attorney at law who has filed a

Complaint on May 13, 1992 against fifteen

defendants generally alleging causes of

action under 42 U.S.C.A. Section 1981, 1982,

1983, 1985, and 1988, as well as under

Amendments 4, 5, 6 and 14 of the United

States Constitution. The causes of action

all relate to plaintiff's arrest on May 13,

1990 and subsequent trial and mental health

proceedings. We have before us a number of

motions and responses which we dispose of as

follows:

(1.) Defendant Aller’.own Hospital/

HealthEast, Inc.'s Motion to Dismiss filed

September 30, 1992 is GRANTED without

prejudice to plaintiff's right to plead over

within twenty-one (21) days of the date of

this Order. Defendant Allentown Hospital/

HealthEast, Inc.'s Motion to Strike

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ii i

Plaintiff's Answer filed November 16, 1992 is

DENIED AS MOOT.

(2.) Defendant Dr. Paul Gro¢e*s Motion

to Dismiss filed October 5, 1992 is GRANTED

without prejv“ice to plaintiff's sight to

plead over within twenty-one (21) days of the

date of this Order. Defendant Dr. Paul

Gross's Motion to Strike Plaintiff's Answer

filed November 5, 1992 is DENIED AS MOOT.

(3.) Defendants Robert L. Steinberg and

Kelly Waldron's Motion for Summary Judgment

and to Dismiss filed October 21, 1992 is

GRANTED IN PART and DENIED IN PART. The

motion for summary judgment is DENIED

without prejudice to said defendants’ right

to reassert it, if necessary, when discovery

is complete. The motion to dismiss is

GRANTED without prejudice to plaintiff's

right to plead over within twenty-one (21)

days of the date of this Order.

(4.) Defendant Lehigh County's Motion to

Dismiss filed December 3, 1992 is GRANTED

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without prejudice to plaintiff's right to

plead over within twenty-one (21) days of the

date of this Order.

(5.) Defendant Clyde R. Bower's Motion

to Dismiss filed December 3, 1992 is

GRANTED without prejudice to plaintiff's

right to plead over within twenty-one (21)

days of the date of this Order.

(6.) Defendants Douglas Kish, Scott R.

Rehrig, Michael Harbove, Donald K.

MacConnell, Arthur Spitko, Thomas Toth, South

Whitehall Police Department and South

Whitehall Township's Motion to Dismiss filed

December 28, 1992 is GRANTED without

prejudice to plaintiff's right to plead over,

if he can, within twenty-one (21) days of the

date of this Order.

(7.) Plaintiff's Motion for Relief

Pursuant to F.R.C.P. 56(£) filed January 25,

1993 is DENIED AS MOOT.

We expect and direct that plaintiff

shall and will drop all causes of action

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which are improper or which lack merit, and

file a timely new proper pleading asserting

any remaining causes of action within

twenty-one (21) days of the date of this

order. Any causes of action not reasserted

in an Amended Complaint within twenty-one

(21) days will be deemed dismissed with

prejudice. The Amended Complaint shall be

specific and shall make it clear, in separate

counts, exactly what facts give rise to

exactly what causes of action and exactly

what defendants they are directed against.

When necessary, plaintiff shall also explain

why prior service was proper or timely. In

this regard, we remind plaintiff of the

numerous deficiencies alleged in the

defendants’ briefs and, in particular, we

point out the following.

The general standard for pleading

Section 1983 civil rights claims is a more

stringent one. The requirement is that the

complaint state facts upon which the court

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can weigh the substantiality of the claim.

Negrich v. Hohn, 379 F.2d 213, 215 (3rd Cir.

1967); Rotolo v. Burrough of Charleroi, 532

F.2d 920, 922 (3rd Cir. 1976); and LePlant v.

Frazier, 564 F.Supp. 1095 (E.D. Pa. 1983).

Under the standard, a plaintiff must state

the conduct violating his or her civil

rights, when and where the conduct occurred,

and who was responsible. A complaint will be

dismissed if it contains only vague and

conclusive allegations. Boykins v. Ambridge _

Area School District, 621 F.2d 75, 80 (3rd

Cir. 1980); Hall v. Pennsylvania State

Police, 570 F.2d 86, 89 (3rd Cir. 1978).

This standard operates to eliminate frivolous

claims, and to guard the reputations of

public servants who are particularly

susceptible to these claims. United States

v. City of Philadelphia, 644 F.2d 187, 206

(3rd Cir. 1980).

If plaintiff's constitutional claims

do have merit, they can be sufficiently

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ee

vindicated by an action under 42 U.S.c.

Section 1983 and there is no need or right to

asset a cause of action directly under the

Constitution. Rogin v. Bensalem, 616 F.2d

680, 686-87 (3rd Cir. 1980); Mahone v.

Waddle, 564 F.2d 1018, 1024 (3rd Cir. 1977);

DiGiovanni v. City of Philadelphia, 481

F.Supp. 1053, 1055-56 (E.D. Pa. 1979); Kedra

v. City of Philadelphia, 454 F.Supp. 652, 679

(E.D. Pa. 1978). We also fail to see at this

point exactly how a direct cause of action

arises under 42 U.S.C. Section 1981, 1982 and

1988 (beyond requesting counsel fees). We

direct plaintiff to read these sections

before pleading over. Defendants’ assert

that plaintiff is white and not of the class

protected by Section 1981.

There is no respondeat superior

liability in Section 1983 cases. Hampton v.

Holmesburg Prison Officials, 546 F.2d 1077,

1082 (3rd Cir. 1976); Monell v. Dept. of

Social Services, 436 U.S. 658, 691, 98 S.Ct.

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2018, 2036, 56 L.Ed.2d 611 (1978). A

complaint filed under 42 U.S.C.A. Section

1983 against a municipality or similar

political subdivision must allege, (1) the

existence of a custom or policy of the

municipality which is of such long standing

as to have force of law, and (2) that one or

more than one of the municipality's employees

violated the plaintiff's civil rights while

acting pursuant to this custom or policy.

See, Monell v. Dept. of Social Services, 436

U.S. 658, 691-94 (1978); DiGiovanni v. City

of Philadelphia, 531 F.Supp. 141, 145 (E.D.

Pa. 1982).

Additionally, the complaint must

articulate a full factual basis sufficient to

support the requisite allegations. See,

LePlant v. Frazier, 564 F.Supp. 1095, 1098

(E.D. Pa. 1983), cited in Sambrick v. Borough

of Norristown, 639 F.Supp. 1351 (E.D. Pa.

1986). Plaintiff must show an actual

“affirmative link" between the occurrence of

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police misconduct and the municipal policy or

custom. Rizzo v. Goode, 423 U.S. 362, 371,

96 S.Ct. 598, 604, 46 L.Ed.2d 56 (1976).

Plaintiff is required to plead these elements

with particularity. Rotolo v. Burrough of

Charleroi, 532 F.2d 920, 922 (3rd Cir.

1976). Furthermore, the policy underlying

the more stringent pleading requirement in

Section 1983 claims is even more pronounced

when a municipality is charged with a

violation under the statute. There is a

public interest in protecting local

government's files from overbroad and

irrelevant inquiries. United States v. City

of Philadelphia, 644 F.2d 187, 206 (3rd Cir.

1980).

On a more specific note, we also

point out that a prosecutor has an absolute

immunity under 42 U.S.C. Section 1983 even if

the prosecutor's "malicious or dishonest

action[s} deprive[]" someone of liberty.

Imbler v. Pachtman, 424 U.S. 409, 427, 96

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S.Ct. 984, 993, 47 L.Ed.2d 128 (1976).

Similarly, all witnesses *: judicial

proceedings are immune from liability under

42 U.S.C. Section 1983. Briscoe v. Lahue,

460 U.S. 325, 334, 345, 103 $.Cct. 1108, 1115,

1120, 75 L.Ed.2d 96 (1983). Furthermore,

"nothing in the language or legislative

history of Section 1983 proves any

congressional intent to deny binding effect

to a state court judgment or decision when

the state court acting within its proper

jurisdiction has given the parties a full and

fair opportunity to litigate federal

claims." Allen v. McCurry, 449 U.S. 90, 103,

101 S.Ct. 411, 419, 66 L.Ed.2d 308 (1980);

Switlik v. Hardwicke Co., Inc., 651 F.2d 852,

859 (3rd Cir. 1981).

Lastly, we warn plaintiff, who is

acting as his own lawyer, of the provisions

of Fed.R.Civ.P. 11 which provides in relevant

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part:

that the

duties:

(2) that

The signature of an attorney or

party constitutes a certificate by

the signer that the signer has read

the pleading, motion, or other

paper; that to the best of the

signer's knowledge, information, and

belief formed after reasonable

inquiry it is well grounded in fact

and is warranted by existing law or

a good faith argument for the

extension, modification, or reversal

of existing law, and that it is not

interposed for any improper purpose,

such as to harass or to cause

unnecessary delay or needless

increase in the cost of litigation.

An attorney's signature certifies

attorney has satisfied three

(1) that he has read the documents;

he has made a reasonable inquiry;

and (3) that he is not acting in bad faith.

Each duty is independent; the violation of

one triggers Rule 11 sanctions. See 5A

Charles A. Wright & Arthur r. Miller, Federal

Practice

and Procedure Section 1335 (1990).

We will not repeat this warning again, and

will impose substantial monetary or other

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Sanctions for any causes of action in an

Amended Complaint which are brought in bad

faith.

BY THE COURT:

Franklin S. Van Antwerpen,

U.S.D.J./s/

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT G. BURCHILL,

Plaintiff

No. 92-CV-2775

Vv.

Civil Action - Law

DOUGLAS KISH, et al.,

Defendants

ORDER

AND NOW, this 9th day of March, 1992,

upon consideration of plaintiff's Motion to

Enlarge Time, it is hereby ORDERED:

plaintiff's motion is hereby GRANTED.

Plaintiff's Amended Complaint shall be filed

within twenty-one (21) days of the date of

this Order or this case will be dismissed

with prejudice. NO FURTHER EXTENSIONS WILL

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7 ew gales o>

BE PERMITTED.

BY THE COURT:

Honorable Franklin S.

Van Antwerpen J./s/

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANTA

ROBERT GEORGE BURCHILL : CIVIL ACTION

Vv.

DOUGLAS KISH, SCOTT R.

REHRIG, MICHAEL HARBOVE,

DONALD K. MacCONNELL,

ARTHUR SPITKO, THOMAS

TOTH, SOUTH WHITEHALL

POLICE DEPARTMENT, SOUTH

WHITEHALL TOWNSHIP,

KELLY WALDRON, ROBERT

L. STEINBERG, LEHIGH

COUNTY DISTRICT ATTY'S

OFFICE, LEHIGH COUNTY,

ALLENTOWN HOSPITAL / :

HEALTHEAST, DR. PAUL : NO. 92-2776

GROSS, CLYDE R. BOWER, :

JOHN DOE and RICHARD ROE

ORDER

AND NOW, this 5th day of April, 1993, the

Court having previously dismissed all

defendants by an annotated Order of February

22, 1993 with a notation that "any causes of

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action not reasserted in an Amended Complaint

within twenty-one (21) days will be deemed

dismissed with prejudice," and the Court

having issued an Order on March 9, 1993

granting plaintiff's motion to enlarge time,

which Order granted an additivnal twenty-one

(21) day period of time from march 9, 1993

for the filing of an Amended Complaint with

the express notation that "plaintiff's

Amended Complaint shall be filed within

twenty-one (21) days of the date of this

Order or this case will be dismissed with

prejudice," and it appearing that no such

Amended Complaint has been filed, NOW

THEREFORE, the dismissals of February 23,

1993 are hereby deemed to be with prejudice

and this case is DISMISSED WITH PREJUDICE AS

TO ALL DEFENDANTS AND CLOSED.

BY THE COURT:

Franklin S. Van Antwerpen,

U.S.D.J./s/

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