Terry Nelson v. Delaware County, 3rd Cir. (2014)

BLD-143
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4024
___________
TERRY NELSON,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF DELAWARE, et al;

THOMAS F. LAWRIE; CHARLES HOWLEY; SAMUEL DEVECCHIS,
(Each) Individually and Collectively, In Their Official Capacities, Et Al
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-08-cv-02224)
District Judge: Honorable Legrome D. Davis
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
December 27, 2013
Before: AMBRO, CHAGARES and VANASKIE Circuit Judges
(Filed: January 8, 2014)
_________
OPINION
_________
PER CURIAM
Terry Nelson appeals pro se from the District Courts order denying his motion
filed pursuant to Federal Rule of Civil Procedure 60(a).1 Appellee Charles Howley has
moved to quash the appeal as time-barred. For the reasons that follow, Howleys motion
is denied and we will summarily affirm the District Courts order.
I.
In 2008, Nelson filed a civil rights action in the District Court against Howley and
others pursuant 42 U.S.C. 1983. Some of Nelsons claims were dismissed in 2009. On
April 30, 2010, the District Court granted summary judgment against Nelson as to the
remaining claims. The District Court docket reflects that a copy of the April 30, 2010
order was mailed to Nelson; the docket does not indicate that this order went undelivered.
In September 2013, Nelson filed a Rule 60(a) motion with the District Court,
claiming that he did not learn of the April 30, 2010 order until July 2013, when he
inquired about the cases status. The motion indicated Nelsons desire[] to exhaust his
appeals on the federal level through the U.S. Court of Appeals for the Third Circuit. On
September 18, 2013, the District Court denied the motion, concluding that Rule 60(a) was
inapplicable and does not provide courts a mechanism to set back the clock so that Mr.
Nelson can appeal the Courts judgment. (Dist. Ct. Order entered Sept. 18, 2013, at 2.)
On October 1, 2013, Nelson filed this appeal. Thereafter, Howley filed his motion
to quash, and the Clerk of this Court listed the appeal for possible summary action.
II.
Under Rule 60(a), a district court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order, or other part of
2
Howleys argument that this appeal is time-barred appears to be premised on his

belief that Nelson is appealing from the District Courts April 30, 2010 order. But
Nelsons notice of appeal clearly states that he is appealing from the District Courts
September 18, 2013 order. Because that notice was filed within 30 days of the date of the
latter order, this appeal is timely. See Fed. R. App. P. 4(a)(1). Accordingly, Howleys
motion to quash is denied.
Turning to the merits of this appeal,2 we review the District Courts denial of
Nelsons Rule 60(a) motion for abuse of discretion. See Pfizer Inc. v. Uprichard, 422
F.3d 124, 129 (3d Cir. 2005). For substantially the reasons provided by the District Court
in its September 18, 2013 order, we conclude that the court did not abuse its discretion in
denying Nelsons motion.3 Because this appeal does not present a substantial question,
we will summarily affirm that order. See 3d Cir. I.O.P. 10.6.
the record. Fed. R. Civ. P. 60(a).

2
We have jurisdiction pursuant to 28 U.S.C. 1291.
3
Pursuant to Federal Rule of Appellate Procedure 4(a)(6), a district court may, under
certain circumstances, grant a partys motion to reopen the time to file an appeal based on
his failure to receive proper notice of the courts judgment. But such a motion must be
filed within 180 days after the judgment is entered or within 14 days after the movant
receives proper notice of the entry, whichever is earlier. See Fed. R. App. P. 4(a)(6).
Because Nelsons Rule 60(a) motion was filed more than 180 days after the District
Courts April 30, 2010 order, liberally construing that motion as a request for relief under
Rule 4(a)(6) would not have changed the outcome here.
3

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BLD-143

COMMONWEALTH OF PENNSYLVANIA, COUNTY OF DELAWARE, et al;

Howleys argument that this appeal is time-barred appears to be premised on his

the record. Fed. R. Civ. P. 60(a).

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