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2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-30-2025 
Kevin Johnson v. Superintendent Mahanoy SCI 
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Recommended Citation 
"Kevin Johnson v. Superintendent Mahanoy SCI" (2025). 2025 Decisions. 607. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/607 
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Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 
 
 
No. 23-2531 
 
KEVIN F. JOHNSON,  
                                            Appellant  
 
v.  
 
SUPERINTENDENT MAHANOY SCI; 
DISTRICT ATTORNEY PHILADELPHIA 
 
 
(E.D. Pa. No. 2:13-cv-03197) 
 
Present:  BIBAS, CHUNG and ROTH, Circuit Judges 
 
1. Motion by Appellees District Attorney Philadelphia and Superintendent 
Mahanoy SCI to Amend Opinion dated 07/14/2025. 
 
 
 
Respectfully, 
        Clerk 
 
_________________________________ORDER________________________________ 
The foregoing motion to amend the opinion dated July 14, 2025 is GRANTED in 
part.  The opinion will be amended at the third and fourth sentences of the second full 
paragraph at page 14 to state “Johnson’s case is one in a striking pattern of state-court 
murder convictions that have been overturned in recent years using similar alleged 
stratagems. Since 2018, more than 100 convictions have been overturned via post-
conviction concessions from the Philadelphia DA, untested by the adversarial process.”  
No other amendments were made.  The Clerk is directed to file the amended opinion.  As 
these changes do not affect the judgment, the judgment will remain as filed. 
 
 
        By the Court, 
 
        s/ Stephanos Bibas   
        Circuit Judge 
 
Dated: July 30, 2025 


Kevin Johnson v. Superintendent Mahanoy SCI

A generation after the Supreme Court’s landmark ruling in United States v. Booker changed federal sentencing laws and practices, it is remarkable how much and how little has changed. This brief introduction provides an overview to this issue of the Federal Sentencing Reporter, with an array of authors providing perspectives on Booker after two eventful decades

Chanenson, Steven L.

Berman, Douglas A.

Faculty Publications Faculty Scholarship 
2-1-2025 
Two Decades Later 
Steven L. Chanenson 
Villanova University Charles Widger School of Law 
Douglas A. Berman 
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 Part of the Law Commons 
Recommended Citation 
Steven L. Chanenson & Douglas A. Berman, Two Decades Later, 37(1) Federal Sentencing Reporter 3 
(2025). 
Available at: https://digitalcommons.law.villanova.edu/facpubs/218 
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Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Faculty Publications by an 
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information, please contact reference@law.villanova.edu. 
Federal Sentencing Reporter • 37:1 • February 2025
DOI: 10.1215/10539867-11484700 • © 2025 The Ohio State University 3
Two Decades Later
STEVEN L. CHANENSON
FSR co-managing editor, Professor of Law at Villanova University Charles Widger School of Law
DOUGLAS A. BERMAN
FSR co-managing editor, Professor of Law at The Ohio State University Moritz College of Law
ABSTRACT A generation after the Supreme Court’s landmark ruling in United States v. Booker changed 
federal sentencing laws and practices, it is remarkable how much and how little has changed. This brief 
introduction provides an overview to this issue of the Federal Sentencing Reporter, with an array of 
authors providing perspectives on Booker after two eventful decades.
KEYWORDS sentencing guidelines, Booker, Congress, courts, U.S. Sentencing Commission
It is hard to believe that it has been nearly a generation since the Supreme Court of the Unit-
ed States issued its decision in United States v. Booker and made the United States Sentencing 
Guidelines “effectively advisory.”1 When Booker arrived on January 12, 2005, just over six months 
after the Court redefined the Sixth Amendment’s impact on guideline sentencing in Blakely v. 
Washington,2 American sentencing was in “turmoil” because the Supreme Court had destabilized 
traditional (and often quite informal) fact- finding by judges that served as the “very foundation of 
many sentencing schemes.”3 During that chaotic time, one of us wrote that “Blakely is the biggest 
criminal justice decision not just of this past term, not just of this decade, not just of the Rehn-
quist Court, but perhaps in the history of the Supreme Court.”4 Given that Blakely and Booker 
have impacted, at least indirectly, the imposition of more than a million federal sentences and 
tens of millions of state sentences, this accounting decades later seems only a bit hyperbolic.
Blakely and Booker were so consequential and produced so much uncertainty in part because 
the Supreme Court’s articulation of Fifth and Sixth Amendment requirements included a ready 
means of evading them. Jury trial rights and proof beyond a reasonable doubt for facts increasing 
a sentence were constitutionally essential if and only when the increase was a mandate of law. If 
a legislature were to eliminate any detailed legal mandates at sentencing, perhaps by making any 
sentencing rules just advisory as the Supreme Court did for the Federal Sentencing Guidelines 
in its Booker opinion, Fifth and Sixth Amendment rights would not preclude robust judicial fact- 
finding at sentencing. Highlighting that its new constitutional rulings presented policy choices 
for lawmakers, Justice Stephen Breyer finished his remedial opinion for the Court in Booker this 
way: “Ours, of course, is not the last word: The ball now lies in Congress’ court. The National 
Legislature is equipped to devise and install, long term, the sentencing system, compatible with 
the Constitution, that Congress judges best for the federal system of justice.”5
What followed the Blakely and Booker rulings was an intense period of judicial, legislative, and 
academic discussion about the future of sentencing in this country at the state and federal levels. 
With apologies to the poet Christopher Marlowe, Booker (standing on the shoulders of Blakely) 
was the case that launched (more than) a thousand appeals, motions, opinions, reform proposals, 
and articles. Or at least it once did. As one of us observed five years ago, “In some ways, the most 
remarkable aspect of Booker at fifteen is how unremarkable it appears to contemporary eyes. It is 
the dog that doesn’t bark— at least not much.”6
While the Supreme Court still regularly interprets aspects of Booker and Blakely,7 Congress 
never took up Justice Breyer’s invitation to act. Nor has the U.S. Sentencing Commission 
revamped its basic approach to the Guidelines and amendments thereto, even though Booker 
allows federal judges to easily sentence outside the Guidelines (which they regularly do). Fur-
thermore, academic attention has also waned. In contrast to the avalanche of commentary in the 
years immediately after the Supreme Court’s ruling, a quick search of the Westlaw legal database 
EDITORS’  OBSERVATIONS
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FEDERAL SENTENCING REPORTER • 37:1 • FEBRUARY 20254
reveals that between early January 2020 and early July 
2024, just two academic articles were published with 
“Booker” in the title, excluding treatise entries and piec-
es in the Federal Sentencing Reporter.
These realities make FSR’s commemoration of the 
twentieth anniversary of Booker even more significant. 
Despite the seemingly general acceptance of, and lack 
of attention to, the judicial rewriting of the Sentencing 
Reform Act (SRA), Booker remains a big deal, even 
though it has fallen off the radar in many quarters. 
Most obviously, every single federal criminal case for 
the past twenty years, from indictment to trial or plea, 
including plea negotiations, pre- sentence investiga-
tion, and sentencing hearing, has been litigated in 
the shadow of Booker. But Booker also proved to have 
profound structural echoes. As FSR editor Jonathan J. 
Wroblewski explains, many observers in 2005 “sur-
mised that innovation would follow, for the decision 
made a fundamental change in federal sentencing law, 
policy, and practice that would surely require some 
systemic reexamination of— and then reform to— 
existing sentencing laws and guidelines.”8 Yet that dog 
also did not bark. Writing in dissent in Blakely, Justice 
Anthony Kennedy expressed concern that the Court’s 
new constitutional jurisprudence might hinder “the 
dynamic and fruitful dialogue between the judicial and 
legislative branches of government that has marked 
sentencing reform on both the state and the federal lev-
els.”9 Though some post- Blakely innovations have con-
tinued at the state level, fruitful discussions of reform 
at the federal level have been quite limited. Wroblewski 
argues that it is now time for the U.S. Sentencing 
Commission to take a holistic look at the Guidelines 
and propose “a comprehensive reform … that can guide 
sentencing decisions over the next twenty years and 
beyond.”10
How and why to change the Guidelines are as 
contested as whether to do so in the first place. Judge 
Lynn Adelman (ED Wisc.) viewed Booker as a “cause 
to rejoice”11 in 2005, partly because it allowed him to 
address what he viewed as the Guidelines’ excessive 
harshness. Yet in 2025, he asks why sentences re-
main so severe and, among other things, points to the 
persistent power of the Guidelines’ now effectively 
advisory numerical recommendation.12 His concerns 
are reminiscent of Justice David Souter’s 2007 dissent 
in Rita v. United States fretting about the Guidelines’ 
“gravitational pull.”13 Judge Adelman recommends 
abolishing numerical guidelines in favor of “requiring a 
consistency of approach rather than outcome, extensive 
appellate review, improved data systems, and more 
judicial education regarding sentencing.”14
Adding a sobering perspective to what we know 
and do not know about sentencing experiences since 
Booker, Sam J. Merchant explains how a “framework 
of fictions has emerged in the system” in part because 
the Guidelines help “prosecutors threaten astronomi-
cal but ultimately fictional criminal exposure,” leading 
defendants to “plead guilty for less than that fictional 
exposure, often for conduct they didn’t commit,” 
resulting in judges “then accept[ing] those pleas.”15 
These realities lead observers to “pretend that sen-
tences are based on judicial discretion, overstating 
the role of judges and understating the role of plea 
agreements.”16
Chair of the U.S. Sentencing Commission Judge 
Carlton W. Reeves (SD Miss.) and his Counsel Con 
Reynolds ponder how the commission can “convince 
judges that its sentencing guidelines are fair, are just, 
and are worth following.”17 They focus on the values of 
democracy embedded in the SRA and the significance 
of the commission’s commitment to soliciting and 
considering input from stakeholders both in and out of 
government. Their work here, coming while the U.S. 
Sentencing Commission is considering the federal 
sentencing system wholesale a full forty years after 
Congress passed the SRA, is a useful and important 
reminder that the true stakeholder of any sentencing 
system is the citizenry as a whole.
Twenty years after Booker, sentencing continues to 
be the hardest aspect of the criminal justice system.18 
It is also wildly consequential for defendants, victims, 
and society at large. We need to treat it that way. We 
must pay sentencing the attention it deserves, even if 
it isn’t popular or glamorous at the moment. In fact, 
sentencing is more than hard; it is also never- ending. 
The world of sentencing, and criminal justice more 
generally, remains perpetually unfinished.19 Indeed, the 
American Law Institute’s Model Penal Code: Sentencing 
notes that guidelines “should always be considered a 
work in progress, to be amended and improved over 
time as the commission oversees and evaluates the 
guidelines’ performance in light of their purposes. The 
guidelines and their operation should be transparent 
to outside study and scrutiny, so that the commission’s 
work over time can be studied, criticized, assisted, and 
encouraged.”20
And so, the work continues.
Notes
1 United States v. Booker, 543 U.S. 220, 245 (2005).
2 Blakely v. Washington, 542 U.S. 296 (2004).
3 Steven L. Chanenson, The Next Era of Sentencing Reform, 54 
EMORY L.J. 377, 377 (2005).
4 Douglas A. Berman, Supreme Court Cleanup in Aisle 4, SLATE.
COM, July 16, 2004, https://slate . com / news - and - politics 
/ 2004 / 07 / supreme - court - cleanup - in - aisle - 4 . html.
5 Booker, 543 U.S. at 265.
6 Steven L. Chanenson, Looking Backward and Moving Forward, 
32 FED. SENT. REP. 125, 125 (2020).
7 See, e.g., Erlinger v. United States, 2024 WL 3074427 (S. Ct. 
June 21, 2024).
8 Jonathan J. Wroblewski, The King Is Dead; Long Live the King: 
United States v. Booker and Its Place in the History of Federal 
Sentencing Law and Policy, 37 FED. SENT. REP. 54, 54 (2025).
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5CHANENSON AND BERMAN • TWO DECADES LATER
9 Blakely, 542 U.S. at 328 (Kennedy, J., dissenting).
10 Wroblewski, supra note 8, at 59.
11 Lynn Adelman, Booker at Twenty, 37 FED. SENT. REP. 13, 13 
(2025).
12 Id. at 13–14.
13 Rita v. United States, 551 U.S. 338, 390 (2007) (Souter, J., 
dissenting).
14 Adelman, supra note 11, at 14.
15 Sam J. Merchant, Plea Agreements and Suspending Disbelief, 
37 FED. SENT. REP. 15, 15–18 (2025).
16 Id. at 18.
17 Carlton W. Reeves & Con Reynolds, Meeting the Demand 
for Democracy in Sentencing, 37 FED. SENT. REP. 6, 6 
(2025).
18 Cf. Douglas A. Berman, Sentencing Is Dang Hard … and So 
…, 32 FED. SENT. REP. 181, 181 (2020).
19 Cf. Steven L. Chanenson & Kristi Arty, Unfinished Innovation: 
American Sentencing Guidelines, in HANDBOOK OF ISSUES IN 
CRIMINAL JUSTICE REFORM IN THE UNITED STATES 113 (E. Jeglic 
& C. Calkins eds. 2022).
20 American Law Institute, Model Penal Code: Sentencing § 
8.01 at 460 (2023).
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Two Decades Later

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-6-2025 
Mark Woods v. Warden Canaan USP 
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Recommended Citation 
"Mark Woods v. Warden Canaan USP" (2025). 2025 Decisions. 627. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/627 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
ALD-172        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1730 
___________ 
 
MARK WOODS, 
       Appellant 
 
v. 
 
WARDEN CANAAN USP 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:24-cv-01833) 
District Judge:  Honorable Mitchell S. Goldberg 
____________________________________ 
 
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 
 
June 26, 2025 
 
Before:  BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges 
 
(Opinion filed: August 6, 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. 
2 
 
 Mark Woods appeals the District Court’s order denying and dismissing his habeas 
petition filed pursuant to 28 U.S.C. § 2241 with prejudice.  For the reasons that follow, 
we will summarily affirm the District Court’s order. 
 In 2018, Woods, a federal prisoner, was sentenced to life plus 180 years in prison 
after being convicted of, inter alia, conspiracy to commit Hobbs Act robbery, kidnapping, 
carjacking, and firearm charges.  His pro se direct appeal is pending.  See C.A. No. 19-
1002.   
In April 2024, Woods filed a § 2241 habeas petition claiming that the District 
Court lacked jurisdiction to try him because, at the time of trial, he had a pending appeal 
of the denial of a pre-trial § 2241 petition.  Woods sought release from prison.  The 
District Court determined that Woods’s claim should be brought in a motion filed 
pursuant to 28 U.S.C. § 2255.  By orders entered May 13 and May 16, 2024, the Court 
directed its Clerk to send Woods the standard form for filing a § 2255 motion, directed 
Woods to complete the form within 30 days, and stated that if he failed to do so, his case 
may be dismissed.  Woods did not file a § 2255 motion and instead filed a notice of 
appeal.   
On appeal, we observed that, “[a]lthough the District Court did not expressly 
dismiss Appellant’s habeas petition pursuant to § 2241, it has effectively done so by 
precluding him from proceeding absent the filing of a § 2255.”  We then summarily 
affirmed the District Court’s orders to the extent that it held that Woods could not pursue 
his claim in a § 2241 petition.  See C.A. No. 24-2262.  Citing our mandate, the District 
3 
 
Court thereafter formally denied and dismissed the § 2241 petition with prejudice by 
order entered April 3, 2025.  Woods filed another notice of appeal from that order. 
Summary action is appropriate if there is no substantial question presented in the 
appeal.  See 3d Cir. L.A.R. 27.4 (2011).  As described above, we have already 
determined that Woods may not bring his claim in a § 2241 petition.  The District Court 
did not err in following our mandate and denying and dismissing the § 2241 petition with 
prejudice. 
For the above reasons, we will summarily affirm the District Court’s order.  See 
Third Circuit I.O.P. 10.6.  Woods’s “Motion for Summary Vacating” is denied. 
 


Mark Woods v. Warden Canaan USP

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-7-2025 
Harold Jean-Baptiste v. DOJ 
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Recommended Citation 
"Harold Jean-Baptiste v. DOJ" (2025). 2025 Decisions. 631. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/631 
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the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
ALD-171        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1995 
___________ 
 
HAROLD JEAN-BAPTISTE, 
   Appellant 
 
v. 
 
UNITED STATES DEPARTMENT OF JUSTICE; MERRICK B. GARLAND, Attorney 
General of the United States; FEDERAL BUREAU OF INVESTIGATION; 
CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigations; CIVIL 
PROCESS CLERK FOR THE U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF 
NEW JERSEY  
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 2:24-cv-08583) 
District Judge:  Honorable Evelyn Padin 
____________________________________ 
 
Submitted on Appellees’ Motion for Summary Affirmance 
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
June 26, 2025 
Before: BIBAS, PORTER, and MONTGOMERY-REEVES, 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. 
 
2 
 
 Harold Jean-Baptiste, proceeding pro se, appeals an order granting the defendants’ 
motion to dismiss his complaint.  Because this appeal does not present a substantial 
question, we will grant the appellees’ motion to summarily affirm the District Court’s 
order.  See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. 
 In his complaint, Jean-Baptiste alleged that the Department of Justice and the FBI 
conspired with his family to kidnap and kill him in retaliation for his submission of 
lawsuits against the government.  He also asserted that the defendants issued “National 
Security Letters” to “slander, harass, discriminate, and destroy[]” his character.  Jean-
Baptiste further claimed that the FBI monitored his cell phone to track his location.  As 
bases for relief, Jean-Baptiste cited common law, a criminal statute (18 U.S.C. § 242), as 
well as various civil rights laws (42 U.S.C. §§ 1981, 1983, 1985(3), and 1986).   
 The defendants filed a motion to dismiss, arguing that the District Court lacked 
jurisdiction over Jean-Baptiste’s claims, see Fed. R. Civ. P. 12(b)(1), and that he failed to 
state a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6).  Over Jean-
Baptiste’s objections, the District Court granted that motion, holding that it lacked subject 
matter jurisdiction over his “patently insubstantial” claims.1  Jean-Baptiste timely 
 
1 The District Court also properly denied as moot Jean-Baptiste’s outstanding motions, 
including a motion for a preliminary injunction.  Coronavirus Rep. v. Apple, Inc., 85 
F.4th 948, 958 (9th Cir. 2023) (“Because the district court properly dismissed with 
prejudice all of the claims against Apple, it correctly denied the remaining pending 
motions as moot.”).  Earlier in the proceedings, the District Court had denied Jean-
Baptiste’s motions for sanctions and summary judgment, terminated his motions relating 
to discovery pending resolution of the defendants’ motion to dismiss, and held in 
abeyance his motions to amend the complaint.  To the extent that Jean-Baptiste seek to 
challenge those rulings on appeal, we conclude that the District Court properly disposed 
of his motions. 
 
3 
 
appealed.  The appellees have filed a timely motion for summary affirmance.  Jean-
Baptiste has filed motions seeking various forms of relief.   
 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise plenary 
review over a District Court’s decision to grant a motion to dismiss pursuant to Rules 
12(b)(1) and 12(b)(6).  Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 529-30 (3d 
Cir. 2012).  We may summarily affirm on any basis supported by the record if the appeal 
does not present a substantial question.  See Murray v. Bledsoe, 650 F.3d 246, 247 (3d 
Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 
 To survive dismissal, “a complaint must contain sufficient factual allegations, 
taken as true, to ‘state a claim to relief that is plausible on its face.’”  Fleisher v. Standard 
Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 
544, 570 (2007)).  A claim is facially plausible if the plaintiff alleges facts that allow a 
court “to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.”  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see generally Denton v. 
Hernandez, 504 U.S. 25, 32-33 (1992) (stating that a complaint’s factual allegations are 
“clearly baseless” if they are “fanciful, fantastic, [or] delusional” (citations omitted)).  
Pleadings of pro se litigants like Jean-Baptiste are construed liberally, but “pro se 
litigants still must allege sufficient facts in their complaints to support a claim.”  Mala v. 
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). 
In his complaint, Jean-Baptiste vaguely alleged that there is a conspiracy to harm 
him, implicating the FBI, his uncle, and a “white supremacy group of psychopaths.”  As 
evidence of the plot, Jean-Baptiste pointed to events on July 6, 2024, when he traveled 
 
4 
 
from Irvington, New Jersey, with his uncle to the airport to pick up Max Saurel Amazan.  
Jean-Baptiste asserted that his uncle, who was “nervous and very uncomfortable,” 
“pulled into [a] driveway” to drop off Amazan.  According to Jean-Baptiste, this was a 
“clear red flag” because his uncle “never ever dropped anyone in a long driveway on the 
side of their home even in the snow or rain, he’s not that considerate of a person to do 
that.”  Jean-Baptiste also found “alarming” the fact that Amazan “said he came from 
Indiana to see his son for a week [but] had no luggage at the airport.”  As further support 
for the alleged conspiracy, Jean-Baptiste noted that, after the events of July 6, his uncle 
and Amazan “are still very uncomfortable around [him] … and can’t look at [him] in the 
eye directly at all.”   
The complaint’s allegations fail to state a plausible claim upon which relief could 
be granted.  Jean-Baptiste’s allegations of a conspiracy are pure speculation, based 
entirely on innocuous behavior by his uncle and Amazan.  See Young v. Kann, 926 F.2d 
1396, 1405 n.16 (3d Cir. 1991) (explaining that conspiracy claims may not be based 
“merely upon . . . suspicion and speculation” and stating that general allegations of 
conspiracy not based on facts are conclusions of law that are insufficient to state a claim).  
Furthermore, although Jean-Baptiste alleged that he was slandered by “National Security 
Letters,” he failed to describe the allegedly false information in those letters or indicate 
that they were communicated to a third party.  See Singer v. Beach Trading Co., 876 
A.2d 885, 894 (N.J. Super. Ct. App. Div. 2005) (listing elements of defamation claim).  
And Jean-Baptiste’s assertion that the FBI improperly monitored his cell phone does not 
satisfy the plausibility test.  See Iqbal, 556 U.S. at 679 (noting that the plausibility 
 
5 
 
determination is a “context-specific task that requires the reviewing court to draw on its 
judicial experience and common sense”).  Finally, we discern no abuse of discretion in 
the District Court’s conclusion that providing Jean-Baptiste with leave to amend his 
complaint would have been futile.  See Grayson v. Mayview State Hosp., 293 F.3d 103, 
111 (3d Cir. 2002). 
Based on the foregoing, we agree with the appellees that the appeal presents no 
substantial question.  See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.  Accordingly, we grant 
their motion for summary affirmance and will summarily affirm the District Court’s 
judgment.2 
 
 
2 Jean-Baptiste’s pending motions are denied. 


Harold Jean-Baptiste v. DOJ

Perrigo Institutional Investor Group v. Joseph C. Papa

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-15-2025 
Jose Ramos Jimenez v. Attorney General United States of 
America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Jose Ramos Jimenez v. Attorney General United States of America" (2025). 2025 Decisions. 667. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/667 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-3213 
____________ 
 
JOSE ALFRED RAMOS JIMENEZ;  
SANDRA NOHEMY ROJAS MEJIA; J. A. R.R.,  
Petitioners 
                                       
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA  
____________ 
 
On Petition for Review of an 
Order of the Board of Immigration Appeals 
(Agency Nos. A220-991-125; A220-991-126; A220-991-127) 
Immigration Judge: Jason Pope 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)  
July 10, 2025 
____________ 
 
Before:  RESTREPO, BIBAS, and CHUNG, Circuit Judges 
 
(Filed:  August 15, 2025) 
____________ 
 
OPINION* 
____________ 
 
CHUNG, Circuit Judge. 
 
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Jose Alfred Ramos Jimenez and his family1 petition for review of a final order of 
removal issued by the Board of Immigration Appeals (“BIA”), affirming the Immigration 
Judge’s (“IJ”) denial of Jimenez’s applications for asylum, withholding of removal, and 
protection under the Convention Against Torture (“CAT”).  For the reasons presented 
below, we will deny the petition.  
I. BACKGROUND2 
 
Jimenez is a native and citizen of Honduras.  His claims stem from a series of 
phone calls from (apparently) the same person extorting him for money while he lived in 
Honduras.  In November 2020, Jimenez received the first phone call from the unknown 
caller, asking for 100,000 lempiras (about $4,200 USD) or else “they” would kill him, his 
partner, and his family.  Jimenez did not take any action as he thought the phone call was 
a joke.  Jimenez received the second phone call in January 2021, asking for 100,000 
lempiras as before.  This time, Jimenez gave the caller half the money requested.  The 
next call came in March 2021, asking for the rest.  Jimenez told the caller he had given 
them all the money he had.  Out of fear, Jimenez then moved his family two hours away 
to live with his grandmother.  After seeing a car surveilling his grandmother’s residence a 
month later, Jimenez and his family moved again to stay with his partner’s sister.  
Jimenez received the last phone call in July 2021.  The caller demanded the rest of the 
 
1 The petitioners are Jimenez, his partner, and their minor child.  Each petitioner 
filed their own application for asylum before the IJ and BIA, and all applications are 
predicated on the same set of facts.  While we refer to “Jimenez” throughout, our 
decision applies equally to all petitioners. 
2 Because we write for the parties, we recite only the facts pertinent to our decision. 
 
3 
 
money, threatened the lives of Jimenez and his family, and stated again that Jimenez and 
his family would be found wherever they went.     
Following that call, Jimenez decided to move his family to the United States.  
Jimenez and his family entered the United States without inspection on August 3, 2021.  
The Department of Homeland Security initiated removal proceedings against Jimenez on 
August 25, 2021.  On March 21, 2022, the IJ denied Jimenez’s applications for asylum, 
withholding of removal, and CAT protection.  On July 10, 2024, the BIA affirmed the IJ 
and entered a final order of removal.  Jimenez timely appealed.3 
II. DISCUSSION4 
 
3 Jimenez filed his petition for review in the Second Circuit on August 5, 2024.  He 
filed an unopposed motion to transfer to the Third Circuit on August 15, 2024, and the 
Second Circuit granted his motion on November 26, 2024.   
4 The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2, the BIA had jurisdiction 
pursuant to 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction to review a final order of 
the BIA pursuant to 8 U.S.C. § 1252(a).  See Hernandez Garmendia v. Att’y Gen., 28 
F.4th 476, 481–82 (3d Cir. 2022).  “[W]here the [BIA] both adopts the findings of the 
Immigration Judge and discusses some of the bases for the Immigration Judge’s decision, 
we have authority to review the decisions of both the Immigration Judge and the [BIA]” 
though “[w]e may only consider the reasons provided by the” BIA.  Saravia v. Att’y 
Gen., 905 F.3d 729, 734 (3d Cir. 2018) (internal quotations and brackets omitted).  “We 
review the agency’s factual findings under the highly deferential substantial-evidence 
standard: The agency’s findings of fact are conclusive unless any reasonable adjudicator 
would be compelled to conclude to the contrary.”  Sunuwar v. Att’y Gen., 989 F.3d 239, 
247 (3d Cir. 2021) (internal quotations omitted).  We also review for substantial evidence 
the mixed questions of law and fact of the BIA’s application of the past persecution 
standard to the facts and determination of whether particular facts amount to torture and 
whether a group constitutes a cognizable social group.  Cf. Wilkinson v. Garland, 601 
U.S. 209, 212 (2024) (noting that the application of a “statutory legal standard” “to an 
established set of facts is a quintessential mixed question of law and fact” and is 
reviewable); id. at 217, 225 (“the application of the exceptional and extremely unusual 
hardship standard to a given set of facts is” a mixed question that is primarily factual and 
is reviewable under a “deferential” standard); Wilkinson v. Att’y Gen., 131 F.4th 134, 
 
 
4 
 
Jimenez argues that the BIA erred in determining that Jimenez was ineligible for 
asylum, withholding of removal, and relief under the CAT. 
“An asylum applicant must demonstrate either past persecution or a well-founded 
fear of future persecution.  In order to establish eligibility on the basis of past 
persecution, an applicant must show[,]” among other things, that he or she faced, or will 
face, persecution “on account of a statutorily protected ground[.]”  Voci v. Gonzales, 409 
F.3d 607, 613 (3d Cir. 2005) (internal quotations and citations omitted).  To be eligible 
for withholding of removal, an applicant must similarly establish, among other things, 
that “his or her life or freedom would be threatened in the proposed country of removal 
on account of race, religion, nationality, membership in a particular social group, or 
political opinion.”  Saravia, 905 F.3d at 735 (internal quotations omitted).  This standard 
“is higher than the standard for asylum.”  Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 
348 (3d Cir. 2008) (internal quotations and citations omitted).  “Thus, an applicant who 
cannot meet the standard for asylum will necessarily be unable to meet the standard for 
withholding of removal.”  Id. at 348–49.  Finally, to obtain relief under the CAT, “a 
noncitizen must show that, if removed to the proposed country, they will [more likely 
than not] be tortured by or with the consent or acquiescence of a public official.”  
Hernandez Garmendia, 28 F.4th at 484 (citing 8 C.F.R. § 1208.16(c)(2), 1208.18(a)(1)). 
 
142 (3d Cir. 2025) (determining that the proper standard of review for “exceptional and 
extremely unusual hardship” is substantial evidence). 
 
5 
 
The BIA found that the IJ correctly determined that Jimenez’s proposed particular 
social group “affluent Hondurans” was not cognizable.5  Substantial evidence supports 
this conclusion.  For a social group to be cognizable, it must be “composed of members 
who share a common, immutable characteristic,” “defined with particularity,” “and 
socially distinct within the society in question.”  Herrow v. Att’y Gen., 93 F.4th 107, 119 
(3d Cir. 2024).  Affluence, however, is not immutable as a person’s wealth can change, 
nor is affluence “so fundamental to identity or conscience that it should not be expected 
to be changed.”  In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 71–74 (BIA 2007) 
(rejecting the proposed social group “affluent Guatemalans” and listing cases establishing 
that “in the absence of evidence to suggest other motivations, evidence that the 
perpetrators were motivated by a victim’s wealth will not support a finding of 
persecution.” (overruled on other grounds)); see Herrow, 93 F.4th at 119 (“A 
characteristic is immutable if it cannot be changed[.]”).  A social group must also be 
clearly defined with particularity, meaning the group has “discrete and definable 
boundaries that … provide a clear standard for determining who is a member.”  S.E.R.L. 
v. Att’y Gen., 894 F.3d 535, 552 (3d Cir. 2018) (cleaned up).  Jimenez testified that he 
had “good economic stability” and would be a member of the group “affluent 
 
5  The IJ also concluded that Jimenez had not established he was persecuted on 
account of his nationality or imputed political opinion.  Additionally, the IJ determined 
that Jimenez could not establish he was persecuted on account of his other proposed 
social group, “victims of human trafficking,” because the trafficking occurred in Mexico 
and would not pertain to their claim of harm in Honduras.  AR 124.  Jimenez did not 
challenge these findings before the BIA, nor does he challenge them here.   
 
6 
 
Hondurans,” although he would not be considered “rich-rich” in Honduras.  This 
definition of “affluent Hondurans” is so vague that it provides no standard for inclusion 
in the group.  JA 17; Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 600 (3d Cir. 
2011).  For the same reason, “affluent Hondurans” is not socially distinct—the contours 
of the group are so vague that it is not recognizable in Honduras.  See S.E.R.L., 894 F.3d 
at 553 (noting that the social distinction inquiry asks whether the Petitioner’s “home 
society actually does recognize that group as being a ‘distinct’ and identifiable group.”).  
In sum, the IJ’s determination that the characteristic of being an “affluent Honduran” is 
not immutable, particular, or socially distinct, and its resulting conclusion that Jimenez 
has not identified a cognizable social group, is supported by substantial evidence.  
Even if Jimenez had identified a particular social group, the BIA perceived no 
clear error in the IJ’s finding that the unknown caller targeted Jimenez, not because of his 
social group, but rather for the caller’s financial gain.  Substantial evidence supports this 
determination.  The caller repeatedly sought money and the record contained no evidence 
of any other motive.  Moreover, Jimenez admitted that he never knew who made the calls 
or why the caller targeted him specifically.  AR 209; see Gonzalez-Posadas v. Att’y Gen., 
781 F.3d 677, 685–86 (3d Cir. 2015). 
Accordingly, substantial evidence supports the BIA’s conclusion that Jimenez 
“failed to prove eligibility for asylum” which means “that the more stringent standard for 
withholding of removal has also not been met.”  Hernandez Garmendia, 28 F.4th at 484 
(citing Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004)). 
 
7 
 
Jimenez’s Convention Against Torture claim also fails.  Here, the BIA adopted the 
reasoning of the IJ, so we review the underlying reasoning of that decision.  Voci, 409 
F.3d at 612–613.  The BIA’s affirmance of the IJ’s denial of CAT protection is supported 
by substantial evidence.  “Torture is an extreme form of cruel and inhuman treatment and 
does not include lesser forms of cruel, inhuman or degrading treatment or punishment 
that do not amount to torture.”  8 C.F.R. § 208.18(a)(2); See Manuel-Soto v. Att’y Gen., 
121 F.4th 468, 472 (3d Cir. 2024).  Substantial evidence supports the conclusion that the 
threats and extortion Jimenez experienced do not amount to torture.6  We further 
conclude that the IJ’s finding that Jimenez would not be subject to torture if he returned 
to Honduras is supported by substantial evidence.  The IJ cited evidence that Jimenez did 
not continue to receive threats while in the United States, and that no members of his 
family with whom he stayed are being threatened in Honduras.  In light of the above, the 
BIA did not err in concluding that Jimenez is not eligible for relief under the CAT. 
III. CONCLUSION 
 
For the foregoing reasons, we will deny the petition.  
 
6 Jimenez also included information regarding his assault while traveling through 
Mexico to the United States.  He does not argue that the assault was part of the alleged 
torture in Honduras, nor can he.  “CAT prohibits removal of a noncitizen to a country 
where the noncitizen likely would be tortured.”  Nasrallah v. Barr, 590 U.S. 573, 580 
(2020).  We therefore do not address that evidence here.   


Jose  Ramos Jimenez v. Attorney General United States of America

Boilermaker Blacksmith National Pension Trust v. Maiden Holdings Ltd

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-25-2025 
In Re: William Lewis, Jr. 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: William Lewis, Jr." (2025). 2025 Decisions. 698. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/698 
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CLD-188        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-2160 
___________ 
 
IN RE: WILLIAM EDGAR LEWIS, JR., and MONIQUE NATE HOLMES, 
    Petitioners 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the Middle District of Pennsylvania 
(Related to M.D. Pa. Civ. Nos. 1:25-cv-00446 and 1:25-cv-00447) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
July 24, 2025 
 
Before:  KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed: August 25, 2025) 
__________ 
 
OPINION* 
__________ 
PER CURIAM 
Monique Naté Holmes and William Edgar Lewis, Jr. (together, Petitioners), filed 
in the District Court two pro se civil rights actions related to a domestic relations matter 
in York County, Pennsylvania. In each action, Petitioners filed a 200-plus-page pleading, 
then flooded the docket with dozens of filings in just four months’ time.  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
In July of this year, the Magistrate Judge—presiding by way of the parties’ 
consent—entered orders granting a defense motion to dismiss in one action, denying 
Petitioners’ motion for sanctions in the other, and denying Petitioners’ motions calling 
for the Magistrate Judge’s recusal in both actions. The Magistrate Judge also entered an 
order directing served but unresponsive defendants in one of the actions to show cause 
why they have not yet responded to the complaint.1 
One week prior to all of those rulings, Petitioners filed this pro se petition for a 
writ of mandamus—a drastic remedy available only in extraordinary circumstances. See 
In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). Having reviewed 
the record, we conclude that no extraordinary circumstances have been presented. 
Among other requests, Petitioners have asked this Court to vacate the Magistrate 
Judge’s allegedly erroneous rulings on various motions. See, e.g., Pet. at 2; Supp. Pet. at 
14. But mandamus is not a substitute for appeal. See Westinghouse Elec. Corp. v. 
Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991). Petitioners must fully 
litigate their actions, then timely appeal a final judgment in order to get review of adverse 
rulings.2  
 
1 Those particular defendants did not respond by the show-cause deadline. The 
Magistrate Judge later denied Petitioners’ motions for default judgment, dismissed their 
complaint as to all parties, and directed the clerk of court to close the case. Petitioners’ 
other action, meanwhile, remains pending as of the writing of this opinion. 
 
2 The Magistrate Judge took actions, noted above in the margin, which may have 
produced a final judgment in one of the actions.  
3 
 
That said, we can consider (and have considered) at this time Petitioners’ recusal-
related arguments. See Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 
1993). Those arguments are not persuasive, for substantially the reasons given by the 
Magistrate Judge in his July 1, 2025 memorandum opinion supporting the order denying 
Petitioners’ recusal motions. See also Liteky v. United States, 510 U.S. 540, 555 (1994); 
In re Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004).     
None of the other requests in Petitioners’ petition (as supplemented) reflects that 
the standard for mandamus relief has been satisfied. Cf. Hollingsworth v. Perry, 558 U.S. 
183, 190 (2010) (per curiam). Accordingly, the petition will be denied. Petitioners’ 
pending motions, including their motion for sanctions and their emergency motions to 
enjoin and otherwise interfere in the relevant state court proceedings, are all denied.  
  


In Re: William Lewis, Jr.

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-25-2025 
In Re: Justin Parmer 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Justin Parmer" (2025). 2025 Decisions. 700. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/700 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1213 
__________ 
 
In re: JASON PARMER, 
   Debtor, 
 
v. 
 
STEVEN D’AGOSTINO, 
                              Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 3:23-cv-01670) 
District Judge:  Honorable Robert Kirsch 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 22, 2025 
 
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed:  August 25, 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. 
 
2 
 
 
Steven D’Agostino appeals the District Court’s order dismissing his appeal from 
orders of the United States Bankruptcy Court for the District of New Jersey.  Those 
orders had confirmed Debtor Jason Parmer’s bankruptcy plan, denied D’Agostino’s 
motion to dismiss Parmer’s bankruptcy petition, and denied D’Agostino’s motion to 
reconsider.  For the following reasons, we will affirm the District Court’s judgment. 
I. 
D’Agostino was a creditor in Parmer’s bankruptcy petition because of a pending 
employment-discrimination suit against Parmer and related parties.  See D’Agostino v. 
Parmer, No. 23-1670, 2024 WL 1197767, at *1.  D’Agostino moved to dismiss Parmer’s 
petition in the Bankruptcy Court as having been filed in bad faith.  See id.  The 
Bankruptcy Court held a hearing on Parmer’s bankruptcy plan and D’Agostino’s motion, 
after which it confirmed the plan and denied the motion to dismiss.  In re Parmer, 23-
1670, 2025 WL 43353, at *1.  It also denied D’Agostino’s motion for reconsideration of 
that order.  Id.  D'Agostino appealed to the District Court.  Id.   
On January 7, 2025, the District Court sua sponte dismissed the appeal for failure 
to comply with Federal Rule of Bankruptcy Procedure 8009, which requires the record on 
appeal to include “any opinion, findings of fact and conclusions of law relating to the 
issues on appeal, including transcripts of all oral rulings.”  Fed. R. Bankr. P. 8009(a)(4).  
The Rule further provides that that an appellant is required to order “a transcript of such 
 
3 
 
parts of the proceedings not already on file as the appellant considers necessary for the 
appeal” and that “[i]f the appellant intends to argue on appeal that a finding or conclusion 
is unsupported by the evidence or is contrary to the evidence, the appellant must include 
in the record a transcript of all relevant testimony and a copy of all relevant exhibits.”  
Fed. R. Bankr. P. 8009(b)(1); (b)(5).   
D’Agostino declined to provide transcripts of the Bankruptcy Court oral 
arguments, asserting that the transcripts were not necessary for the District Court to 
review the orders.  The District Court disagreed with his assertion, finding that without 
the relevant transcripts, it could not review the challenged orders on the merits.  Parmer, 
2024 WL 1197767, at *2.  The District Court issued an order requiring D’Agostino to 
provide the transcripts or show cause as to why the appeal should not be dismissed.  Id. at 
3.  D’Agostino moved to have the transcripts provided at the Government’s expense 
because he was proceeding In Forma Pauperis.  Id. at 3-4.     
The District Court directed the parties back to the Bankruptcy Court to determine 
whether the appeal was not frivolous and presented a substantial question as required to 
receive Government-provided transcripts pursuant to 28 U.S.C. § 753(f).  Id. at 4.  After 
the Bankruptcy Court deemed the appeal frivolous, and D’Agostino failed to file the 
transcripts, the District Court considered the factors in Poulis v. State Farm Fire and 
 
4 
 
Casualty Company, 747 F.2d 863 (3d Cir. 1984), and concluded that dismissal was 
warranted.  See id. at 4-10.  This appeal followed.1   
II. 
Because D’Agostino’s brief fails to address how the District Court’s abused its 
discretion in its review of the relevant Poulis factors, he has likely forfeited appellate 
review of the District Court’s determination.2  See Lara v. Comm’r Pa. State Police 125 
F.4th 428, 432 n.5 (3d Cir. 2025) (reiterating that “an issue is [forfeited] unless a party 
raises it in its opening brief” (quotation marks omitted)); see also Kost v. Kozakiewicz, 1 
F.3d 176, 182 (3d Cir.1993).  
Nevertheless, in an abundance of caution, we have examined the District Court’s 
opinion explaining its dismissal and cannot say that the District Court abused its 
discretion in applying the Poulis factors and dismissing the case for failure to comply 
with Rule 8009.  The factors a District Court must weigh under Poulis are: “(1) the extent 
of the party’s personal responsibility; (2) the prejudice to the adversary caused by the 
failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; 
(4) whether the conduct of the party . . . was willful or in bad faith; (5) the effectiveness 
 
1  This matter was submitted on the Appellant’s brief only.  We have jurisdiction pursuant 
to 28 U.S.C. §§ 158(d)(1) and 1291.  We review the District Court’s order for abuse of 
discretion.  See Jewelcor Inc. v. Asia Com. Co., Ltd., 11 F.3d 394, 397 (3d Cir. 1993).    
2  D’Agostino’s brief focuses on alleged errors committed by the Bankruptcy Court, but 
those issues are not before us.   
 
5 
 
of sanctions other than dismissal, which entails an analysis of alternative sanctions; and 
(6) the meritoriousness of the claim.”  747 F.2d at 868.  A District Court must also 
consider whether the Appellant was provided with notice and an opportunity to respond.  
See In re Harris, 464 F.3d 263, 265 (2d Cir. 2006).   
Here, the District Court’s order provided an analysis of the Poulis factors as 
required, with a particular focus on whether any other sanction would be appropriate.  
See Palmer, 2025 WL 43353, at 8-9.  We have examined the District Court’s analysis and 
perceive no basis for concluding that dismissal of the appeal was an abuse of discretion.  
Accordingly, we will affirm the District Court’s judgment. 
 


In Re: Justin Parmer

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-25-2025 
August Kreis, IV v. James Alercia 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"August Kreis, IV v. James Alercia" (2025). 2025 Decisions. 701. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/701 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3073 
__________ 
 
AUGUST B. KREIS, IV, 
   Appellant 
 
v. 
 
JAMES ALERCIA; PATRICK A. CLINESE, PPD Badge #2733; JOHN GILLEN; 
EVAN GOLDSTEIN, PPD Badge #2703; KENNETH MCPHERSON; PALMER 
TOWNSHIP 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 5:21-cv-03321) 
District Judge:  Honorable Cynthia M. Rufe 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 11, 2025 
 
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: August 25, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
PER CURIAM 
 August Kreis, IV, appeals pro se from the District Court’s order granting the 
appellees’ motion for summary judgment. We will affirm in part, vacate in part, and 
remand for further proceedings. 
I. 
 On November 8, 2020, Kreis’ sister found a gun under his bed, brought it to the 
Palmer Township Police Department, and reported to Officer Evan Goldstein that Kreis’ 
possession of the gun was illegal based on his criminal history. Kreis’ stepfather also 
gave a statement about an incident that occurred a few months before in which Kreis 
assaulted him and threatened him with the same gun. Based on Kreis’ criminal history 
and the statements from Kreis’ family members, Goldstein immediately sought and 
obtained a warrant for Kreis’ arrest, charging him with unlawful possession of a firearm 
by a convicted felon, as well as search warrants for his house and car. 
 Later that night, nine police officers were dispatched to Kreis’ address to execute 
the warrants. Officer John Gillen spoke on the phone with Kreis, who agreed to come 
outside. He then walked through the front door toward Officers Gillen and Kenneth 
McPherson. At some point, Kreis turned away from the officers. They immediately 
attempted to gain physical control of Kreis, which caused all three men to fall to the 
ground. McPherson tased Kreis. Kreis, who has epilepsy, began seizing. At this point, 
Officer Patrick Clinese approached and, seeing Kreis reach for McPherson’s service 
 
3 
 
weapon while struggling with McPherson and Gillen on the ground, also deployed his 
taser on Kreis. When Kreis stopped seizing and came to, Officer James Alercia was 
pointing an assault rifle at his head. Kreis was then handcuffed, placed in custody, and 
taken to the hospital. He suffered several bruises, including one on the front of his head, 
injuries from the taser barbs, dizziness lasting several days, and headaches lasting three 
weeks. Kreis was additionally charged with and later pleaded guilty to resisting arrest and 
disarming a law enforcement officer, as well as various crimes related to the earlier 
incident with his stepfather.  
 In July 2021, Kreis filed a complaint pursuant to 42 U.S.C. § 1983, which he later 
amended, alleging violations of his Fourth and Fourteenth Amendment rights. The 
District Court ultimately dismissed most of Kreis’ claims but allowed his excessive force 
claims against defendants McPherson, Gillen, Clinese, and Alercia to move forward. 
These remaining defendants filed a motion for summary judgment, which the District 
Court granted, explaining that the officers’ actions in effecting Kreis’ arrest were 
objectively reasonable under the circumstances. Kreis timely appealed. 
II. 
We have jurisdiction under 28 U.S.C. § 1291. We construe Kreis’ filings liberally, 
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but we do not consider 
issues that he does not raise. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) 
(explaining that litigants forfeit claims that they fail to develop in an opening brief). 
 
4 
 
Kreis’ opening brief contests only the District Court’s order granting summary 
judgment, over which we exercise de novo review. See Wharton v. Danberg, 854 F.3d 
234, 241 (3d Cir. 2017). Summary judgment is proper when, viewing the evidence in the 
light most favorable to the nonmoving party, the record “shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 
Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006). 
A genuine dispute of material fact exists if the evidence is sufficient for a reasonable 
factfinder to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986). The non-moving party “must go beyond pleadings and provide 
some evidence that would show that there exists a genuine issue for trial.” Jones v. 
United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).  
III. 
“The question in excessive force cases is whether, under the totality of the 
circumstances, ‘the officers’ actions are objectively reasonable in light of the facts and 
circumstances confronting them, without regard to their underlying intent or 
motivation.’” Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024) (quoting 
Graham v. Connor, 490 U.S. 386, 397 (1989)). This determination is made based on the 
officers’ perspective at the scene, “rather than with the 20/20 vision of hindsight.” Id. 
(quoting Graham, 490 U.S. at 396). In addition, “[t]he history of the interaction, as well 
 
5 
 
as other past circumstances known to the officer . . . may inform the reasonableness of 
the use of force.” Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025). 
 The following factors are used to assess officers’ reasonableness: “the severity of 
the crime at issue, whether the suspect poses an immediate threat to the safety of the 
officers or others, and whether he is actively resisting arrest or attempting to evade arrest 
by flight,” Anglemeyer, 92 F.4th at 188, as well as “the physical injury to the plaintiff, 
the possibility that the persons subject to the police action are themselves violent or 
dangerous, the duration of the action, whether the action takes place in the context of 
effecting an arrest, the possibility that the suspect may be armed, and the number of 
persons with whom the police officers must contend at one time.” Id. at 189.  
We are constrained to agree with the District Court that the available evidence 
indicates that Officers Clinese and Alercia acted objectively reasonably. According to 
several officers’ reports, Clinese tased Kreis when he saw Kreis reach for McPherson’s 
service weapon. Cf. Johnson v. City of Phila., 837 F.3d 343, 350 (3d Cir. 2016) (“[O]nce 
[plaintiff] began reaching for [the police officer]’s gun, [the officer] was justified in using 
deadly force to defend himself”). Kreis did not deny that he reached for the gun—on the 
contrary, he pleaded guilty to disarming an officer. Further, Alercia never touched Kreis; 
he only aimed his weapon at Kreis after Kreis’ altercation with the other officers but 
before he was handcuffed. See Graham, 490 U.S. at 396 (“[T]he right to make an 
arrest . . . necessarily carries with it the right to use some degree of physical coercion or 
 
6 
 
threat thereof to effect it.”). Again, Kreis did not deny this version of events. Viewing the 
evidence in the light most favorable to Kreis, as we must, he has failed to show a genuine 
issue of material fact that would enable his claims against Officers Clinese and Alercia to 
survive summary judgment. 
We disagree, however, with the District Court’s grant of summary judgment with 
respect to the claims against Officers McPherson and Gillen. The District Court’s 
analysis of these claims assumes that Kreis was actively resisting arrest throughout the 
entire encounter, and that this resistance rendered McPherson’s and Gillen’s actions 
objectively reasonable. Though Kreis pleaded guilty to resisting arrest, it is not clear from 
which specific facts that conviction arose. Moreover, his conviction for resisting arrest 
“would not be inconsistent with a holding that the officers, during a lawful arrest, used 
excessive (or unlawful) force in response to his own unlawful actions.” Lora-Pena v. 
F.B.I., 529 F.3d 503, 506 (3d Cir. 2008) (per curiam).  
There are genuine issues of material fact regarding whether McPherson’s and 
Gillen’s actions were reasonable. McPherson’s and Gillen’s reports describe a “leg 
sweep” used to trip Kreis. But even in the brief excerpt of Kreis’ deposition provided by 
Appellees, Kreis recounts a notably more violent altercation: he describes the officers 
“slamming [him] to the ground” before he “got a chance to reply [their] orders,” such that 
his head bounced off the ground and induced a seizure. ECF No. 68-1 at 63; see Paladino 
v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) (“a single, non-conclusory affidavit or 
 
7 
 
witness's testimony, when based on personal knowledge and directed at a material issue, 
is sufficient to defeat summary judgment.” (quoting Lupyan v. Corinthian Colls., Inc., 
761 F.3d 314, 320 (3d Cir. 2014))). Gillen’s and McPherson’s reports also conflict with 
each other: Gillen states that McPherson tased Kreis after they all fell to the ground, and 
McPherson states that he tased Kreis as Gillen tripped him.  
We note that the record in this case is underdeveloped. Although the record 
contains the involved officers’ reports, Kreis’ criminal history records, and the transcript 
of his guilty plea proceeding, it includes only excerpts (eight nonconsecutive pages out of 
119) from Kreis’ deposition. In addition, though body worn camera footage from all 
involved officers was recorded and preserved, none of this footage was placed in the 
record.1  
In sum, we will affirm the District Court’s judgment with respect to the claims 
against Officers Clinese and Alercia. We will vacate the grant of summary judgment with 
respect to the claims against Officers McPherson and Gillen, and remand for further 
presentation of information to the District Court, including Kreis’ full deposition and 
body camera footage if the District Court seeks it, on those claims only. See DeHart v. 
Horn, 227 F.3d 47, 59-60 (3d Cir. 2000) (en banc) (reversing district court's grant of 
summary judgment and remanding for further development of the record). We express no 
 
1 Kreis states in this Court that he requested this footage from the defendants but never 
received it.  
 
 
8 
 
opinion about whether summary judgment would be appropriate in light of a more 
complete record. 
 


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