Salvatore Ziccarelli v. Thomas Dart

BLD-186 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 25-1387 ___________ JAMES JONES, Appellant v. DR. HARRY, COMMISSIONER, SECRETARY, PA DOC; J. TERRA, SUPERINTENDENT; KERI MOORE, CHIEF GRIEVANCE OFFICER; C.E.R.T., CORRECTIONAL OFFICERS ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:24-cv-05692) District Judge: Honorable Mia R. Perez ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 24, 2025 Before: SHWARTZ, MATEY, and CHUNG, Circuit Judges (Opinion filed: August 7, 2025) _________ OPINION* _________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Inmate James Jones appeals pro se the District Court’s order dismissing his complaint. We will summarily affirm. I. On the morning of August 14, 2024, at the State Correctional Institution in Phoenix, Pennsylvania, Correctional Emergency Response Team (“CERT”) officers visited Jones in his housing cell, subjected him to a strip search, and ordered him to carry his mattress to the lower level for screening. While he transported his mattress, the officers searched his living quarters. Shortly after returning to his cell, Jones discovered that the CERT officers had removed two cases of his legal documents and discarded them in the housing unit’s trash bin, which he could see from his cell door. Jones called out to officers on the unit floor and asked them to retrieve his legal materials from the garbage, but they refused. Jones requested assistance from his Unit Manager, numerous corrections officers, and members of the cleaning crew—all refused to retrieve his documents from the bin. Jones initiated this action against Department of Corrections’ Commissioner Dr. Harry, Superintendent Terra, CERT officers, Chief Grievance Officer Kerri Moore, and anyone else that may have been involved, referring to them as “Defendants et al.” Jones sued the defendants in their official and individual capacities, alleged violations of his First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights, and brought a claim of negligence against Terra. The District Court screened Jones’ complaint pursuant to 28 U.S.C. § 1915(e)(2), dismissed it with prejudice in part and without prejudice in part, and granted Jones leave 2 to amend his complaint within thirty days. In its subsequent order denying Jones’ motion for reconsideration, the District Court reiterated that he could file an amended complaint within thirty days or proceed with his original filing, but that if Jones opted to stand on his original complaint, it would “issue a final order dismissing the case.” Jones filed a notice of intent to stand on his original complaint. The District Court therefore dismissed all of Jones’ federal claims with prejudice and dismissed his state law claim without prejudice, for lack of subject matter jurisdiction. Jones appealed.1 II. We agree with the District Court’s analysis. As an initial matter, the District Court properly concluded that the Eleventh Amendment barred Jones’ official capacity claims against all defendants, who are all state officials, for monetary damages. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 309–10 (3d Cir. 2020). The District Court’s dismissal of Jones’ individual capacity claims against Moore was also proper, as a prisoner does not have a free-standing right to an effective grievance process, and an officer’s 1 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise plenary review over the District Court’s order dismissing Jones’ complaint under 28 U.S.C. § 1915(e)(2)(B). See Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). Dismissals for failure to state a claim under § 1915(e)(2)(B) are governed by the same standard applicable to moti

(Slip Opinion) OCTOBER TERM, 2024 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus RILEY v. BONDI, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 23–1270. Argued March 24, 2025—Decided June 26, 2025 The Department of Homeland Security (DHS) sought to remove Pierre Riley, a citizen of Jamaica, from the United States under expedited procedures for aliens convicted of aggravated felonies. On January 26, 2021, the DHS issued a “final administrative review order” (FARO) directing Riley’s removal to Jamaica. Under 8 U. S. C. §1228(b)(3), al- iens may petition courts of appeals for FARO review. While Riley did not contest his removal from the United States, he sought relief under the Convention Against Torture and Other Cruel, Inhuman or Degrad- ing Treatment or Punishment (CAT), telling an immigration officer that he would likely be killed by a drug kingpin if he returned to Ja- maica. The officer concluded that Riley did not demonstrate reasona- ble fear of persecution, but an Immigration Judge (IJ) disagreed and concluded that Riley was entitled to relief under the CAT, which pro- hibits removal to countries where torture is likely. The IJ sent Riley’s case to a “withholding-only” proceeding to determine whether he could be removed to Jamaica. At that proceeding, the IJ found Riley credible and granted deferral of removal to Jamaica under the CAT. The DHS appealed to the Board of Immigration Appeals (BIA), which vacated the IJ’s order and allowed the FARO’s enforcement. Three days later, Riley filed a petition for review in the Fourth Circuit. The Fourth Cir- cuit dismissed Riley’s petition for lack of jurisdiction, holding that (1) aliens cannot obtain review of BIA decisions in “withholding-only” pro- ceedings by filing within 30 days of that decision, and (2) §1252(b)(1)’s 30-day filing deadline is jurisdictional, not merely a mandatory claims- processing rule. Held: 1. BIA orders denying deferral of removal in “withholding-only” pro- ceedings are not “final order[s] of removal” under §1252(b)(1). 2 RILEY v. BONDI Syllabus An “order of removal” includes an “order of deportation,” 110 Stat. 3009–627, which, in turn, is defined as an order “concluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). The FARO issued by DHS on January 26, 2021, is “the final order of re- moval” under the statute because it held that Riley was deportable and directed that he be removed from the United States. The order was also the Executive’s final determination on the question of removal. An order of removal becomes final at the earlier of two points: (1) “a determination by the [BIA] affirming such order,” or (2) “the expiration of the period in which the alien is permitted to” petition the BIA for review of the order. §1101(a)(47)(B). Because an alien in streamlined removal proceedings cannot seek review of his FARO before an IJ or the BIA, the period to seek review “expire[s]” as soon as the FARO is issued—meaning that the order becomes final immediately upon issu- ance. The Court’s decisions in Nasrallah v. Barr, 590 U. S. 573, and John- son v. Guzman Chavez, 594 U. S. 523, buttress this conclusion. In Nasrallah, the Court noted that CAT orders are not final removal or- ders because they do not conclude that an alien is deportable or order deportation. 590 U. S., at 582. The Court held that CAT orders do not “disturb” or “affect the validity” of final removal orders, so they do not merge into final orders because only rulings affecting the validity of a final removal order will merge into the final order for purposes of judi- cial review. Ibid. Guzman Chavez addressed whether aliens could be released during the pendency of their withholding-only proceedings. The Court held that the directive that they be removed had become “administratively final” regardless of their pending CAT proceedings, and “the finality of [an] order of removal does not depend in any way on the outcome of the withholding-only proceedings.” 594 U. S., at 533, 539–540. The Government argues that the question in Guzman Chavez was whether the removal order in that ca

USCA11 Case: 24-13852 Document: 20-1 Date Filed: 08/12/2025 Page: 1 of 3 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-13852 Non-Argument Calendar ____________________ SILAS MARTIN, Petitioner-Appellant, versus WARDEN, KILBY CORRECTIONAL FACILITY, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 3:24-cv-00148-RAH-CSC ____________________ USCA11 Case: 24-13852 Document: 20-1 Date Filed: 08/12/2025 Page: 2 of 3 2 Opinion of the Court 24-13852 Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges. PER CURIAM: Silas Martin, an Alabama prisoner proceeding pro se, appeals the district court’s dismissal of his 28 U.S.C. § 2554 petition for lack of jurisdiction. The district court determined that his petition was an unauthorized successive petition. On appeal, Martin reiterates the merits of the claims that he raised in his petition, contending that law enforcement lacked probable cause for his arrest. We review de novo whether a habeas corpus petition is suc- cessive. Ponton v. Sec’y, Fla. Dep’t of Corr., 891 F.3d 950, 952 (11th Cir. 2018). Although we liberally construe a pro se brief, a pro se party may still abandon an issue by not briefing it. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). With certain exceptions not relevant here, a petitioner may file a second or successive § 2254 habeas petition only after obtain- ing an order from this Court authorizing the district court to con- sider the petition. Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 (11th Cir. 2020); see 28 U.S.C. § 2244(b)(3)(A). “Absent authorization from this Court, the district court lacks jurisdiction to consider a second or successive habeas petition.” Osbourne, 968 F.3d at 1264. “[T]he bar on second or successive petitions ordinar- ily prevents a prisoner from twice contesting the judgment author- izing his confinement.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1325 (11th Cir. 2017) (en banc). USCA11 Case: 24-13852 Document: 20-1 Date Filed: 08/12/2025 Page: 3 of 3 24-13852 Opinion of the Court 3 Here, Martin has failed to address the district court’s stated reason for dismissing his § 2254 petition, so he has abandoned the appeal. See Timson, 518 F.3d at 874. Even liberally construing his brief on appeal, he challenges only the underlying state judgment authorizing his confinement, asserting that there was no probable cause for arrest. Because Martin has failed to challenge the ground on which the district court based its judgment—that he filed an un- authorized successive § 2254 petition—“it follows that the judg- ment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). In any case, the district court’s judgment is also due to be affirmed because it is clearly correct. As the court observed, the instant § 2254 petition was Martin’s “fifth attempt to challenge, via habeas corpus, his 2007 Lee County conviction for attempted sod- omy and a 25-year sentence.” His first such § 2254 petition, filed in September 2009, was denied on the merits. His remaining chal- lenges have been dismissed as unauthorized successive § 2254 peti- tions. Because Martin is again attempting to contest the same “judgment authorizing his confinement,” his current § 2254 peti- tion plainly qualifies as successive. See Patterson, 849 F.3d at 1325. And since we have not granted authorization, and no other excep- tion applies, the district court lacked jurisdiction to consider it. See Osbourne, 968 F.3d at 1264. We therefore affirm the district court’s dismissal of Martin’s § 2254 petition for lack of subject-matter jurisdiction. AFFIRMED.

USCA11 Case: 24-12932 Document: 25-1 Date Filed: 08/07/2025 Page: 1 of 6 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-12932 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus QUNITARIOUS TAVARES GRANT, a.k.a. “Q”, a.k.a. big dawg, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida USCA11 Case: 24-12932 Document: 25-1 Date Filed: 08/07/2025 Page: 2 of 6 2 Opinion of the Court 24-12932 D.C. Docket No. 1:18-cr-20080-DPG-1 ____________________ Before JORDAN, JILL PRYOR, and LUCK, Circuit Judges. PER CURIAM: Qunitarious Grant appeals the district court’s order denying his motion seeking a sentence reduction under 18 U.S.C. § 3582(c)(2). He argues that he is entitled to a reduction based on Amendment 821 to the Sentencing Guidelines. The government has moved for summary affirmance. We GRANT the govern- ment’s motion. I. After Grant participated in two armed robberies, he pleaded guilty to two counts of brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). For each count, Grant faced a mandatory minimum sentence of seven years, and the sentences had to be consecutive. See 18 U.S.C. § 924(c)(1)(A)(ii). Before sentencing, a probation officer prepared a presen- tence investigation report (“PSR”). The PSR explained that for con- victions under § 924(c), the applicable guidelines range is “the min- imum term of imprisonment required by statute.” U.S. Sent’g Guidelines Manual § 2K2.4. The PSR thus reported that the appli- cable guidelines range for each count was seven years. And because the sentences had to run concurrently, Grant’s guidelines range was 14 years (or 168 months). At sentencing, the district court im- posed a total sentence of 192 months’ imprisonment. USCA11 Case: 24-12932 Document: 25-1 Date Filed: 08/07/2025 Page: 3 of 6 24-12932 Opinion of the Court 3 The government later filed a motion to reduce Grant’s sen- tence pursuant to Federal Rule of Criminal Procedure 35. The court granted the motion and reduced Grant’s sentence to 154 months’ imprisonment. After Grant received a sentence reduction, the Sentencing Commission amended the guideline provision addressing criminal history status points. At the time Grant was sentenced, when a dis- trict court calculated a criminal history score under Chapter Four of the guidelines, a defendant received two additional criminal his- tory points if he committed his offense of conviction while under any criminal justice sentence. See U.S.S.G. § 4A1.1(d) (2019). Amendment 821 altered the way “status points” were scored. After Amendment 821, if a defendant had seven or more criminal history points and committed the instant offense while under a criminal justice sentence, he received one additional criminal history point. See U.S.S.G. § 4A1.1(e) (2024). And if he had fewer than seven crim- inal history points and committed the instant offense while under a criminal justice sentence, he received no additional criminal his- tory points. Id. The Sentencing Commission made this portion of Amendment 821 retroactive. See id. § 1B1.10(d). After Amendment 821 went into effect, Grant filed a motion in the district court requesting a sentence reduction. The district court denied the motion. This is Grant’s appeal. The government has moved for summary affirmance. USCA11 Case: 24-12932 Document: 25-1 Date Filed: 08/07/2025 Page: 4 of 6 4 Opinion of the Court 24-12932 II. Summary disposition is appropriate, in part, where “the po- sition of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as i

USCA11 Case: 24-14243 Document: 18-1 Date Filed: 08/08/2025 Page: 1 of 2 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-14243 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LAQUISHA MCFARLAND, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:23-cr-00005-TKW-3 ____________________ USCA11 Case: 24-14243 Document: 18-1 Date Filed: 08/08/2025 Page: 2 of 2 2 Opinion of the Court 24-14243 Before BRANCH, LUCK, and LAGOA, Circuit Judges. PER CURIAM: The government has moved to dismiss this appeal as un- timely. Laquisha McFarland’s notice of appeal, deemed filed on December 18, 2024, under the prison mailbox rule, is untimely to challenge the district court’s August 20, 2024, order striking her third reply to the government’s response to her motion for com- passionate release. See Fed. R. App. P. 4(b)(1)(A) (providing that in criminal cases, a defendant’s notice of appeal must be filed within 14 days after the entry of the judgment or order being appealed); United States v. Lopez, 562 F.3d 1309, 1312-14 (11th Cir. 2009) (hold- ing that we must apply Rule 4(b)’s 14-day time limit when the gov- ernment objects to an untimely notice of appeal); Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (holding that a pro se prisoner’s notice of appeal is deemed filed on the date he delivers it to prison authorities, and absent contrary evidence, we assume that a prisoner delivers a filing on the date he signs it). Accordingly, the government’s motion to dismiss is GRANTED, and this appeal is DISMISSED.