Third Circuit Opinion

(2) By the Clerk for possible dismissal under 28 U.S.C. § 1915(e)(2) or for possible summary action under I.O.P. 10.6;

(5) Motion by Appellee, Manheim Township Police Department, to dismiss appeal; and

(6) Appellant’s motion for appointment of counsel in the above-captioned case.

September 30, 2008 - U.S. Third Circuit Court Judges SLOVITAR, BARRY, and NYGAARD

QUESTIONS – ORDER of October 22, 2007 by U.S. District Judge Mary A. McLaughlin to DISSMISS both cases WITH PREJUDICE for not filing completed amended complaint.

"ORDERED and ADJUDGED by this Court that the judgments of the District Court entered on October 23, 2007, be and the same are hereby VACATED and the cases are REMANDED for further proceedings. Costs will not be taxed. All of the above in accordance with the opinion of this Court."

MR. RANDALL O. WENGER; of the Lancaster County Prothonotary; MATTHEW BOMBERGER, Office of the Public Defender of Lancaster County; JUDGE MICHAEL GEORGELIS, Lancaster County; LEO J. ECKERT JR., Lancaster County District Magistrate; MAYNARD HAMILTON, JR., Lancaster County District Magistrate; RICHARD H. SIMMS, Lancaster County District Magistrate, STEVEN MYLIN, Lancaster County District Magistrate, WILLIAM G. REUTER, Lancaster County District Magistrate, MICHAEL SMITH, Dauphin County District Magistrate, OFFICER RONALD BEZZARD, of the East Lampeter Police Department; OFFICER THOMAS GJURICH, of the Lancaster City Bureau of Police; OFFICER ADAM CRAMER, of the Southern Regional Police Dept.; CHIEF JOHN FIORILL; OFFICER ROBERT BUSER, of the Southern Regional Police Dept.; JOLYNN STEINMAN, Postmaster, Conestoga Post Office; NELSON BREWSTER, Investigator, of the PA Attorney General Office; OFFICER MICHAEL K. SCHAEFER, Millersville Boro Police Dept.; PRESIDENT JUDGE LOUIS J. FARINA, Lancaster County Court of Common Pleas; DONALD TOTARO, Lancaster County District Attorney; DETECTIVE MICHAEL L. LANDIS, Lancaster County

Stanley J. Caterbone appeals from the dismissals of two civil cases for his failure to comply with the District Court’s orders. For the reasons that follow, we will vacate and remand to the District Court for further consideration.

In May 2005, Caterbone sued Lancaster County Prison and others asserting that his constitutional rights, shareholder rights, civil liberties and "right of due access to the law" were violated (E.D. Pa. Civ. No. 05-cv-02288). Several of the Defendants moved to dismiss the complaint and on June 13, 2006, the District Court granted the motions to dismiss and also dismissed the complaint as to the non-moving Defendants because they were never properly served. The following day, Caterbone filed a document which the District Court construed as a request for leave to file an amended complaint. The District Court granted the request and subsequently set a deadline of August 20, 2006, for filing an amended complaint. The District Court indicated that it would dismiss the case with prejudice if Caterbone failed to file an amended complaint by the deadline.

After granting three continuances, the District Court set an October 15, 2007 deadline, again warning Caterbone that failure to comply would result in dismissal with prejudice. The District Court also stated that it would not grant any additional extensions of time. On October 15, 2007, Caterbone filed a rambling, sixty-three page "Amendment to Complaint and Motion for Continuance," asserting thirty-eight causes of action against several dozen defendants and requesting an additional sixty days to file another amended complaint. On October 23, 2007, the District Court issued an order denying the request and dismissing the case with prejudice. The District Court explained in its order that the incomplete complaint submitted by Caterbone did not constitute a valid amended complaint, and that he failed to file a valid amended complaint in the sixteen months since he was granted leave to do so. Caterbone filed a notice of appeal, and the appeal was docketed at C.A. No. 07-4474.

Caterbone commenced a second action on October 18, 2006 by filing a complaint ascertain federal civil rights and RICO claims against twenty-five defendants (E.D. Pa. Civ. No. 06-cv-04650). Caterbone requested and was granted leave to proceed in forma pauperis. On November 17, 2006, the District Court issued an order directing Caterbone to file an amended complaint containing a more definite statement of this claims or face dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The District Court also granted Caterbone’s motion for continuance, placing the case in civil suspense until April 19, 2007. After granting two additional continuances, the District Court directed him to file a status report requesting an additional continuance, the District Court issued an order denying the request and directing him to serve his amended complaint on the defendants on or before October 15, 2007, noting that the case had been pending for nearly a year and that he had yet served any of the defendants. On October 15, 2007, he filed the same sixty-three page document that he filed in E.D. Pa. No. 05-2288, which included an identical request for an additional sixty days to file an amended complaint. On October 23, 2007, the District Court entered an order dismissing the case because he had failed to serve his complaint as directed in the previous order. Caterbone’s appeal in this case was docketed at C.A. No. 07-4475. The two appeals have been consolidated for disposition.

Before we discuss the merits of the case we must first determine whether we have jurisdiction over the appeals. Appellees Fulton Bank and Manheim Township Police Department have filed motions to dismiss for lack of jurisdiction, arguing that Caterbone’s notice of appeal in C.A. 07-4474 was untimely filed. Caterbone filed responses asserting that the notice of appeal was timely in both cases.