Michael Osei v. Temple University

666 F. App'x 113
Court of Appeals for the Third Circuit·Decided November 23, 2016·No. 16-2405·Unpublished

Opinion

OPINION *

PER CURIAM

Appellant Michael Osei appeals from three post-judgment orders of the District Court. For the reasons that follow, we will dismiss the appeal in part for lack of jurisdiction and summarily affirm in part to the extent of our jurisdiction.

Osei, in pursuit of a Healthcare Management graduate degree from Temple University, enrolled in Professor Grant Know's organic chemistry course, and received a grade of “C” for the semester. Osei was dissatisfied with this grade and corresponded inappropriately with Professor *115 Krow via e-mail concerning his grievance. Professor Krow reported those emails to campus police and eventually Osei was charged with and adjudicated guilty of a student code of conduct violation. On February 8, 2010, Osei was notified that Temple University was imposing on him a suspension lasting through August 15, 2010, and probation lasting through graduation.

After exhausting his administrative appeals, Osei filed suit in the United States District Court for the Eastern District of Pennsylvania, alleging, among other claims, a denial of procedural due process. The District Court allowed him to amend his complaint, and then dismissed his federal claims and declined to exercise supplemental jurisdiction over his remaining state claims. We affirmed on appeal on March 11, 2013, holding that Osei was afforded the procedural due process required by the Fourteenth Amendment pri- or to his disciplinary suspension, see Osei v. Temple University,. 518 Fed.Appx. 86 (3d Cir. 2013). We subsequently denied his petition for rehearing and the mandate issued on April 17, 2013.

On September 22, 2015, more than two years after our mandate issued, Osei filed a motion to seal the court record relating to this case in both the Court of Appeals and the District Court. After receiving and considering responses from the parties, we denied the motion to seal, and, in an order entered on November 12, 2015, the District Court also denied the post-judgment motion to seal, see Docket Entry No. 48. On March 29, 2016, Osei filed, in the District Court' only, a “Motion for Reconsideration and/or Appeal Nunc Pro Tunc of the District Court’s Non Sequitur & Unconstitutional Order” denying his motion to seal, in which he argued that the District Judge had a prior association with Temple University School of Law and was biased. In an order entered on April 11, 2016, the Court denied this motion, concluding that there was no basis for recusal, see Docket Entry No. 58. In an order entered on May 5, 2016, the District Court denied a host of other post-judgment motions filed by Osei, challenging the order refusing to seal the court record, see Docket Entry No. 67. In this order the District Court admonished Osei “to stop inundating the Clerk’s Office with repetitious filings. The effect of [your] repeatedly frivolous and vexatious filings is a significant drain on the court’s resources and it simply must stop.”

On May 11, 2016, Osei filed a notice of appeal, seeking review of these three orders, resulting in the instant appeal. After the Clerk issued a Briefing and Scheduling Order, Osei filed a motion, for summary reversal of the three orders, and a motion to bar the appellees from filing a response to the motion for summary reversal. Temple University and the individual appellees responded in opposition to these motions, and requested summary affirmance of the District Court’s three orders. Osei replied in opposition to summary affirmance.

We will dismiss the appeal in part for lack of appellate jurisdiction and summarily affirm to the extent of our jurisdiction. The taking of an appeal within the prescribed time is mandatory and jurisdictional. Bowles v. Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). In an order entered on November 12, 2015, see Docket Entry No. 48, the District Court denied Osei’s post-judgment motion to seal the court record. We lack jurisdiction to review this order and will dismiss the appeal to the extent that Osei seeks review of it. Osei had 30 days to appeal under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C. § 2107(a). The notice of appeal filed on May 11, 2016 was not timely with respect to this order. Federal Rule of Appellate Procedure 4(a)(4)(A)(iv) tolls the running of the ap *116 peal period only when a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) is filed within 28 days after entry of the judgment. Lizardo v. United States, 619 F.3d 273, 278-79 (3d Cir. 2010). Osei’s March 29, 2016 “Motion for Reconsideration and/or Appeal Nunc Pro Tunc of the District Court’s Non Sequttur & Unconstitutional Order” was not filed within 28 days of the District Court’s order denying his motion to seal the court record. See generally Fed. R. Civ. P. 6(b)(2) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time,” except that a “court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”). Accordingly, it did not toll the time for taking an appeal. 1

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Michael Osei v. Temple University, 666 F. App'x 113 (3d Cir. 2016).

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