Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-22-2005
Johnstown v. Vora
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4699
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Recommended Citation
"Johnstown v. Vora" (2005). 2005 Decisions. Paper 1323.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1323
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APS-192 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4699
________________
CITY OF JOHNSTOWN
v.
CHANDAN S. VORA,
Appellant
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-00221J)
District Judge: Honorable Gustave Diamond
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 31, 2005
BEFORE: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES
(Filed April 22, 2005 )
_______________________
OPINION
_______________________
PER CURIAM
Chandan S. Vora appeals the September 22, 2004 order of the United States
District Court for the Western District of Pennsylvania dismissing pursuant to 28 U.S.C. §
1915(e)(2)(B) her “Petition for Removal” for lack of jurisdiction. Vora also appeals the
October 27, November 17, and December 17, 2004 orders denying her motions to vacate.
In 2000, Chandan Vora filed a motion to proceed in forma pauperis and a “Petition
for Removal,” of a Pennsylvania municipal court criminal complaint charging Vora with
obstruction of the administrative law and disorderly conduct arising out of Vora’s
interference with Public Works’ employees’ attempt to clean up her property pursuant to
a state court order. On September 22, 2004, the District Court dismissed the removal
petition, concluding that the “Petition for Removal” sought to attack a state court criminal
proceeding over which the District Court had no jurisdiction and that the pleadings failed
to state a claim upon which relief could be granted. On October 13, 2004, Vora moved to
vacate the dismissal of her removal action, claiming that the ordinances that formed the
basis for charges against her were unconstitutional, and that city officials violated her
civil rights. By order entered October 27, 2004, the District Court treated the motion as a
reconsideration motion and denied it for the same reasons set forth in its original
dismissal order. Dr. Vora filed a timely motion to vacate the October 2004 order on
November 8, 2004, which the District Court denied on November 17, 2004 on the same
grounds it had denied her reconsideration motion. Vora filed her third motion to vacate
on November 29, 2004, which the District Court denied on December 17, 2004. Vora
filed a notice of appeal on December 16, 2004.1
1
We construe the notice of appeal as appealing from the District Court dismissal
order and from the orders denying Vora’s motions to vacate.
2
First, Vora’s notice of appeal from the order dismissing the petition for removal is
clearly untimely under Fed. R. App. P. 4(a)(1), as it was filed almost 2 months too late.
The time-period prescribed for filing a notice of appeal is “mandatory and jurisdictional.”
Browder v. Director of Dep’t of Corr., 434 U.S. 257, 264 (1978). In a civil case in which
the United States is not a party, a notice of appeal must be filed within thirty (30) days of
the date of entry of the final judgment or order appealed. Fed. R. App. P. 4(a)(1)(A). On
September 22, 2004, the District Court granted in forma pauperis and dismissed the
Vora’s removal petition pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for lack of jurisdiction.
Appellant’s motions to vacate did not toll the appeals period because both were filed
more than ten days after entry of the dismissal order. See Fed. R. App. P. 4(a)(4). Thus,
Appellant had until October 26, 2004, to file a timely notice of appeal. Appellant did not
file a notice of appeal until December 16, 2004, more than thirty days after entry of
judgment. Accordingly, given the absence of a timely filed notice of appeal, the appeal of
the District Court’s September 22, 2004 order is dismissed for lack of appellate
jurisdiction. Vora’s appeal of the denial of the motions to vacate is timely, however, and
thus, we have jurisdiction to consider the appeal of these orders.
Vora was granted leave to proceed in forma pauperis, and the appeal is now before
the Court for determination pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §
1915(e)(2)(B), the Court must dismiss an appeal if it (i) is frivolous or malicious, (ii) fails
to state a claim upon which relief may be granted, or (iii) seeks monetary damages from a
3
defendant with immunity. An action or appeal can be frivolous for either legal or factual
reasons. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
After reviewing Vora’s District Court pleadings and notice of appeal, we conclude
that the District Court correctly denied all of the motions to vacate. Having found no
legal merit to this cause, we will dismiss the appeal pursuant to 28 U.S.C. §
1915(e)(2)(B).
4