Villanova University School of Law: Digital Repository

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-29-2025 
Matthew Jones v. United States District Court for the Eastern 
Distr 
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"Matthew Jones v. United States District Court for the Eastern Distr" (2025). 2025 Decisions. 602. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1414 
___________ 
 
MATTHEW JONES, 
   Appellant 
 
v. 
 
USA DISTRICT COURT OF EASTERN PENNSYLVANIA 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:25-cv-00940) 
District Judge:  Honorable Mark A. Kearney 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 23, 2025 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: July 29, 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 
 
 Appellant Matthew Jones appeals pro se the District Court’s order dismissing his 
complaint as frivolous.  We will affirm.  
 In his complaint, Jones claimed that sometime in 2001, security officials employed 
at the U.S. District Courthouse located in Philadelphia, Pennsylvania subjected him to 
“anal rape and gunshots” from the moment he entered the courthouse and continued to do 
so for a duration of three days.  See ECF Dkt. No. 2 at 4–6.  He asserted civil claims for 
attempted murder of an officer or government employee in violation of 18 U.S.C. 
§§ 1113, 1114.1  He sought $250,000 in damages for every day he was subjected to this 
abuse, totaling $750,000.  
 The District Court granted Jones leave to proceed in forma pauperis and screened 
his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).  The District Court determined that 
Jones did not have standing to impose criminal liability against the U.S. District Court for 
the Eastern District of Pennsylvania, concluded his complaint seeking monetary damages 
under criminal statutes was frivolous, and dismissed the matter with prejudice.2  Jones 
timely appealed.  
 
1 Jones has not alleged that he is an officer or government employee.  
 
2 The District Court correctly noted that Jones is a frequent litigant.  This Court has 
expressly warned him about filing frivolous appeals on at least three occasions. See Jones 
v. Kent Cnty. Super. Ct., Del., 767 F. App’x 225, 226 n.1 (3d Cir. 2019) 
(per curiam); Jones v. Bridgeville Police Dep’t, 758 F. App’x 235, 236 (3d Cir. 2019) 
(per curiam); Jones v. Just. of the Peace Ct. No. 3, 714 F. App’x 119, 121 n.1 (3d Cir. 
2018) (per curiam). 
 
3 
 
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the 
District Court’s dismissal.  See Dooley v. Wetzel, 957 F.3d 366, 373–74 (3d Cir. 
2020).  “To be frivolous, a claim must rely on an ‘indisputably meritless legal theory’ or 
a ‘clearly baseless’ or ‘fantastic or delusional’ factual scenario.”  Mitchell v. Horn, 318 
F.3d 523, 530 (3d Cir. 2003) (quoting Neitzke v. Williams, 490 U.S. 319, 327–28 
(1989)).   
We agree that Jones’ complaint lacks an arguable basis in law or fact, as he does 
not have standing to impose criminal liability and he is not entitled to monetary damages 
under either statute.  See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] 
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution 
of another.”); see also Cent. Bank of Denv., N.A. v. First Interstate Bank of Denv., N.A., 
511 U.S. 164, 190 (1994) (“[W]e have not suggested that a private right of action exists 
for all injuries caused by violations of criminal prohibitions.”).  Even construing the 
complaint liberally, we find no factual allegations from which we can reasonably infer 
that Jones has raised, or could raise, a plausible claim for relief.  We therefore hold the 
District Court did not err in dismissing Jones’ complaint as frivolous pursuant to 28 
U.S.C. § 1915(e)(2)(B)(i) without leave to amend.  See Neitzke, 490 U.S. at 325; see also 
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).  Nothing in his 
appellate brief—in which he provides lengthy quotations from various statutes and 
“conclusions” that lack factual or legal connection to this appeal—upsets this conclusion.    
 
4 
 
Accordingly, we will affirm the District Court’s judgment. 


Matthew Jones v. United States District Court for the Eastern Distr

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-30-2025 
Solishum Shields v. Township of East Lampeter 
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Recommended Citation 
"Solishum Shields v. Township of East Lampeter" (2025). 2025 Decisions. 610. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1209 
__________ 
 
SOLISHUM SUMER SHIELDS, 
            Appellant 
 
v. 
 
EAST LAMPETER TOWNSHIP; SUE PERROTTY, Ex Tower Health CEO; KERRY 
MORRIS; CHARLES F. BARBERA, Tower Health MD; BLAIR TURNBULL; 
KATHLEEN ELIZABETH RAMIREZ; DEBORAH SHALLCROSS; TRAVIS K. HILL; 
NICHOLAS REGINELLA; COLTON DEMBERGER; KYLE SCHLITZ; RYAN 
WIEGAND; MICHAEL P. DUGAN; ALEXANDER BARRY; JOSHUA LINEMAN; 
MICHAEL J. CABRY, III; CHESTER COUNTY PENNSYLVANIA; LANCASTER 
COUNTY PENNSYLVANIA, Sued in their individual capacities; DEFENDANTS 
EAST LAMPETER TOWNSHIP CHESTER COUNTY AND LANCASTER COUNTY, 
Sued in their municipal capacities 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 5:24-cv-05475) 
District Judge:  Honorable Gerald J. Pappert 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 29, 2025 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: July 30, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
2 
 
PER CURIAM  
On December 2, 2019, the appellant, Solishum Sumer Shields, was arrested in 
East Lampeter Township after a police pursuit that ended with Shields crashing his car.  
He was transported to the hospital in the early morning hours of December 3, 2019.1  
Nearly five years later, on October 11, 2024, Shields filed a complaint in the District 
Court asserting constitutional violations and state-law tort claims relating to his arrest and 
hospital visit.  He sought a declaratory judgment, injunctive relief, punitive damages, and 
compensatory damages totaling $500 trillion.  The District Court screened the complaint 
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and dismissed it on the ground that Shields’s 
claims were barred by the applicable statute of limitations.  Shields appealed.2  
We will affirm.  We have reviewed the record and agree with the District Court 
that, for the reasons stated in its Memorandum Opinion, Shields’s claims were time-
barred.  See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (“The statute of limitations 
for a § 1983 claim arising in Pennsylvania is two years.”); 42 Pa. Cons. Stat. § 5524 
(providing two-year limitation period for personal injury claims); Jones v. Bock, 549 U.S. 
 
constitute binding precedent. 
 
1 Shields ultimately pleaded guilty to driving under the influence and attempting to elude 
an officer and served a sentence at Chester County Prison.  Commonwealth v. 
Shields, No. CP-15-CR-0004375-2019 (Pa. Ct. Com. Pl.). 
 
2 We have jurisdiction pursuant to 28 U.S.C. § 1291.  We review a dismissal under  
28 U.S.C. § 1915(e)(2)(B)(ii) de novo.  See Allah v. Seiverling, 229 F.3d 220, 223 (3d 
Cir. 2000). 
 
3 
 
199, 215 (2007) (explaining that a court may dismiss an untimely complaint sua sponte 
under 28 U.S.C. § 1915(e)(2)(B)(ii) if it is apparent from the face of the complaint that it 
is time-barred and not subject to tolling).  Shields’s sole objection to the District Court’s 
timeliness ruling is that claims for sexual assault and rape “are never time barred.”  Br. 8, 
ECF No. 5.  Contrary to his contention, these torts are subject to the two-year limitation 
period.  See 42 Pa. Cons. Stat. § 5524(1), (7).   
Accordingly, we will affirm.3  
 
3 To the extent that Shields contends that the District Court ignored his motions for a 
protective order, Br. 9, ECF No. 5, he may be referring to motions he filed in a different 
district-court action, Shields v. Wiegand, Civ. No. 5:20-cv-02999 (E.D. Pa.).   


Solishum Shields v. Township of East Lampeter

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-30-2025 
USA v. Suzanne Ray King 
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Recommended Citation 
"USA v. Suzanne Ray King" (2025). 2025 Decisions. 613. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/613 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 24-1956 
_____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
SUZANNE RAY KING, 
  Appellant 
_______________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. No. 1:22-cr-00006-001) 
District Judge: Hon. Susan Paradise Baxter 
_______________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
March 7, 2025 
 
Before: MATEY, FREEMAN, and ROTH, Circuit Judges. 
 
(Filed: June 6, 2025) 
_______________ 
 
OPINION∗ 
_______________ 
 
 
 
 
 
 
∗This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not 
constitute binding precedent. 
 
 
 2 
MATEY, Circuit Judge. 
Suzanne King pleaded guilty to possessing a firearm in violation of 18 U.S.C. 
§ 922(g)(1). She now appeals her sentence, contending that § 922(g)(1) is 
unconstitutional. But King waived her Second Amendment challenge, so we will affirm.  
I. 
While officers responded to a domestic dispute at King’s home, King stashed 
multiple firearms at her place of work. She left a note for her employer: “Please take care 
of these for me. Don’t call the cops.” App. 84. A grand jury later indicted King for 
possessing 1) a firearm in violation of 18 U.S.C. § 922(g)(1) following her prior felony 
conviction, and 2) a transferred firearm not registered in the National Firearms 
Registration and Transfer Record in violation of 26 U.S.C. § 5861(d). 
King eventually decided to plead guilty to these charges. At her plea hearing, the 
District Court asked whether King needed time to review this Court’s first decision in 
Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023), vacated sub nom. Garland v. 
Range, 144 S. Ct. 2706 (2024). King’s counsel responded that “consistent with [his] 
advice, Suzanne King is choosing to not litigate Second Amendment issues, even though 
the prior—that is the prior that puts her in count one, is the possession with intent to 
deliver; the substance being roughly a quarter pound of marijuana.” App. 31. And when 
asked if she had “discussed the recent changes in the law or the recent application of the 
law regarding a felon in possession of a firearm,” King responded “[y]es.” App. 39. King 
reaffirmed this position in her sentencing memorandum, choosing to accept responsibility 
despite her view that her conduct may be constitutionally protected in the light of recent 
 
 
 3 
developments in Supreme Court and Third Circuit jurisprudence. The District Court 
sentenced King to eighteen months’ imprisonment followed by a three-year term of 
supervised release.  
II. 
King now argues § 922(g)(1) is facially unconstitutional,1 but “we cannot reach 
waived arguments.” United States v. Davis, 105 F.4th 541, 547 (3d Cir. 2024). “Waiver is 
the ‘intentional relinquishment or abandonment of a known right.’” United States v. 
Dowdell, 70 F.4th 134, 140 (3d Cir. 2023) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 
(1938)). That is the case here, as King repeatedly renounced any Second Amendment 
challenge. King’s waiver arises not from the entry of her plea, see Class v. United States, 
583 U.S. 174, 178 (2018), but from her expressed intent to forgo a constitutional defense, 
see Khadr v. United States, 67 F.4th 413, 420–21 (D.C. Cir. 2023). Nor does the 
fundamental nature of the Second Amendment change our analysis since “even 
constitutional objections” may be forfeited by a failure to raise them at a proper time. 
Curtis Publ’g Co. v. Butts, 388 U.S. 130, 143 (1967); see Yakus v. United States, 321 
U.S. 414, 444 (1944). 
Given King’s waiver, we will affirm the District Court’s judgment.  
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have 
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Questions of waiver are 
reviewed de novo. In re RFE Indus., Inc., 283 F.3d 159, 164 (3d Cir. 2002). 


USA v. Suzanne Ray King

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-6-2025 
In Re: Aaron Mazie 
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Recommended Citation 
"In Re: Aaron Mazie" (2025). 2025 Decisions. 626. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/626 
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ALD-189 NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
No. 25-2161 
___________ 
IN RE: AARON CORBIN MAZIE, 
Petitioner 
____________________________________ 
On a Petition for Writ of Mandamus  
____________________________________ 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
July 24, 2025 
Before:  BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges 
(Opinion filed August 6, 2025) 
_________ 
OPINION* 
_________ 
PER CURIAM 
Pro se petitioner Aaron Mazie seeks a writ of mandamus relating to the issuance of 
a bench warrant by the New Jersey Superior Court, Chancery Division, Morris County.  
In his petition, Mazie asks us to direct the Superior Court to vacate the bench warrant, to 
adjudicate his motion for reconsideration, and to declare improper and void a May 2024 
hearing. We decline to issue the requested writ.   
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2 
 
Under 28 U.S.C. § 1651, we have the authority to “issue all writs necessary or 
appropriate in aid of [our jurisdiction] and agreeable to the usages and principles of law.”  
A writ of mandamus is a drastic remedy available only in extraordinary circumstances.  
See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005).  Traditionally, 
we issue such writs only “as the means to confine an inferior court to a lawful exercise of 
its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do 
so.”  United States v. Christian, 660 F.2d 892, 893 (3d Cir. 1981) (cleaned up).   
To the extent that Mazie asks us to direct the state court to take action, we lack 
authority to grant such relief.  See In re Richards, 213 F.3d 773, 781 (3d Cir. 2000) 
(explaining that federal courts of appeal ordinarily “lack appellate jurisdiction over their 
state counterparts, thus making writs of mandamus generally inappropriate”).   
For these reasons, we will deny the mandamus petition.1
 
1  To the extent Mazie’s petition seeks additional relief, it is denied.  He has also filed 
various motions in this Court.  To the extent the motions seek to compel adjudication of 
his IFP application, they are moot because IFP status has been granted.  To the extent the 
motions make supplementary claims and seek additional relief, they are denied.   
 
 
 


In Re: Aaron Mazie

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-6-2025 
Charles Jaramillo v. City of Coatesville 
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Recommended Citation 
"Charles Jaramillo v. City of Coatesville" (2025). 2025 Decisions. 629. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/629 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 23-2700 
______________ 
 
CHARLES JARAMILLO; FUEL CITY, LLC; PA AUCTION COMPANY, d/b/a 
“Bogey’s”; HOT STYLEZ BOUTIQUE, INC.; DOUGLAS LAMBERT, III; STEPHEN 
SMITH; SHIRLEY PARKER, 
  Appellants 
 
v. 
 
CITY OF COATESVILLE; LINDA LAVENDAR-NORRIS; CARMEN GREEN; 
MICHAEL TRIO; SCOTT MULDERIG; JOHN W. LAUFER, III; MARANATHA 
EVANGELISTIC TEMPLE CHURCH, a/k/a Maranatha Evangelistic Temple 
______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:19-cv-04936) 
District Judge: Honorable Mitchell S. Goldberg 
______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
September 17, 2024 
______________ 
 
Before:  RESTREPO, PHIPPS, and McKEE, Circuit Judges 
 
(Opinion filed: August 6, 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 
 
McKEE, Circuit Judge. 
Plaintiffs Charles Jaramillo and six of his tenants appeal the District Court’s grant 
of Defendants’ motion for summary judgment. Plaintiffs claim that Defendants violated 
their rights to equal protection of the laws, freedom from unreasonable seizures, and 
procedural due process. For the reasons set forth below, we will affirm.1 
I.  
Plaintiffs assert that its equal protection rights were violated when the City of 
Coatesville (“the City”) evicted its commercial and residential tenants from land located 
at 239, 245, 247, and 249 East Lincoln Highway (“the Properties”).2 Plaintiffs claim that 
Defendants treated them differently than Maranatha Evangelistic Temple – the previous 
owner and occupant of the Properties.3 They base their claim on the class-of-one theory. 
To state a claim under that theory, Plaintiffs must show that the City treated Jaramillo 
differently than similarly situated comparators and that it did so intentionally and without 
a rational basis.4  Plaintiffs have not satisfied any of the elements.  
 
1 We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of 
summary judgment de novo. Cranbury Brick Yard, LLC v. United States, 943 F.3d 701, 
708 (3d Cir. 2019). Summary judgment is only appropriate “if the movant 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). In making this determination, we “view the 
facts in the light most favorable to the non-moving party and make all reasonable 
inferences in that party’s favor.” Scheidemantle v. Slippery Rock Univ. State Sys. of 
Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).  
2 Because we must view the evidence in the light most favorable to the Plaintiffs, we 
assume that the contract dated October 7, 2015, between Jaramillo and Maranatha was 
valid, and Jaramillo had a right to occupy and manage the Properties. Opening Br. 5-6. 
3 Plaintiffs claim they were forcibly evicted from the Properties, when the standard 
procedure for a failure to obtain permits were fines and citations. Opening Br. 14. 
4 Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). 
3 
 
Persons are “similarly situated” for equal protection purposes when they are alike 
“in all relevant aspects.”5 Maranatha is not a similarly situated comparator to Jaramillo. 
Although Jaramillo and Maranatha were both at one point owners of the Properties, 
Maranatha’s congregants were forced to vacate because of a heating system issue, while 
Jaramillo’s tenants were forced to vacate because of code violations caused by a dispute 
of ownership. Plaintiffs have not identified any other party who sought to have the City 
process permits, while, at the same time, dealing with a dispute of ownership and a 
defective fire alarm. Even if Maranatha and Jaramillo were comparators, there is no 
evidence that any differential treatment was intentional. Further, the City’s safety 
concerns over the lack of inspections and possible defective fire alarm were a rational 
basis to shut down the Properties. Jaramillo’s tenants were given ten days to bring the 
properties into compliance in comparison to Maranatha’s congregants who needed to 
immediately vacate. Therefore, the District Court properly granted summary judgment in 
favor of the Defendants on this claim. 
II.  
 Plaintiffs’ Fourth Amendment claim fares no better. The Fourth Amendment 
protects “[t]he right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures.”6 “A seizure of property occurs 
where there is some meaningful interference with an individual’s possessory interests in 
 
5 Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. 
Hahn, 505 U.S. 1, 10 (1992)). 
6 U.S. Const. amend. IV.  
4 
 
that property.”7 Plaintiffs claim that the City seized their possessory interest in the 
Properties when it ordered its tenants to vacate. 
Plaintiffs also take issue with the fact that the District Court cited an affidavit by 
the Fire Chief Gary Alderman which detailed the safety concerns that existed on the 
Properties. This affidavit was submitted in connection with the Common Pleas Court 
litigation. Plaintiffs argue that res judicata applies because the litigation was ultimately 
dismissed.  
Plaintiffs fail to plead facts showing that the seizures were unreasonable.8 
Plaintiffs do not contest the City’s safety concerns over the Properties. Further, the July 
2, 2018, Common Pleas Court order denied the City’s request for a preliminary 
injunction without prejudice and stated that relief was available under other then-pending 
actions.9 Therefore, the court order did not constitute a final judgment on the merits for 
purposes of res judicata.10  
III.  
 
7 Soldal v. Cook Cnty., 506 U.S. 56, 63 (1992) (citing United States v. Jacobsen, 466 U.S. 
109, 113 (1984)) (internal citations omitted). 
8 See Cinea v. Certo, 84 F.3d 117, 124 (3d Cir. 1996) (“[A] seizure of property only 
violates the Fourth Amendment if it is unreasonable.”). 
9 See Venuto v. Witco Corp., 117 F.3d 754, 759 (3d Cir. 1997) (highlighting circuits that 
have held that claims dismissed “without prejudice” are not barred by res judicata). 
10 See Duhaney v. Att’y Gen., 621 F.3d 340, 347 (3d Cir. 2010) (“A party seeking to 
invoke res judicata must establish three elements: ‘(1) a final judgment on the merits in a 
prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on 
the same cause of action.’” (quoting In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008))).  
5 
 
Plaintiffs’ due process claim is misguided. It is Plaintiffs’ burden to show that “the 
procedures available to [them] did not provide due process of law.”11 Plaintiffs have not 
shown what process they were owed nor that any such process was denied. Therefore, 
Plaintiffs failed to carry their burden.  
IV.  
For the reasons above, we will affirm the judgment of the District Court.  
 
11 Mulholland v. Gov’t Cnty., 706 F.3d 227, 238 (3d Cir. 2013) (internal citations 
omitted); see also Iles v. de Jongh, 638 F.3d 169, 173 (3d Cir. 2011) (“[T]o establish 
a procedural due process claim, a plaintiff must demonstrate that ‘(1) he was deprived of 
an individual interest that is encompassed within the Fourteenth Amendment's protection 
of life, liberty, or property, and (2) the procedures available to him did not provide due 
process of law.’” (quoting Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 
214, 219 (3d Cir. 2009))). 


Charles Jaramillo v. City of Coatesville

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-7-2025 
USA v. Gerinardo Rivera 
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Recommended Citation 
"USA v. Gerinardo Rivera" (2025). 2025 Decisions. 634. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/634 
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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. 24-1496 
________________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
GERINARDO RIVERA, a/k/a Gerry, 
                                                                  Appellant 
_____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Criminal No. 3:22-cr-00346-001) 
District Judge: Honorable Malachy E. Mannion 
________________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on April 15, 2025 
 
Before: CHAGARES, Chief Judge, SCIRICA, and RENDELL, Circuit Judges. 
 
(Filed: August 7, 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 
 
SCIRICA, Circuit Judge. 
 
Gerinardo Rivera appeals his conviction for two drug offenses.  Rivera pleaded 
guilty to each count pursuant to a plea agreement, under which the Government dropped 
three other charges against him.1  At sentencing, Rivera raised two objections to the Pre-
Sentence Investigation Report.  The Government agreed to one—which led the District 
Court to alter a four-point role enhancement to a two-point enhancement—and Rivera 
withdrew the other.  Declining to accept Rivera’s proposed downward variance to 126 
months’ imprisonment, the District Court instead sentenced him to 168 months, the 
bottom of the Guidelines range.  Defense counsel now moves to withdraw under Anders 
v. California, 386 U.S. 738 (1967).2  See 3d Cir. L.A.R. 109.2(a) (2011). 
Under our local rules, we must answer two questions when ruling on an Anders 
motion.   First, we determine whether Rivera’s attorney “has thoroughly examined the 
record in search of appealable issues” and “explain[ed] why the issues are frivolous.”  
United States v. Brookins, 132 F.4th 659, 666 (3d Cir. 2025) (citation and internal 
quotation marks omitted).3  We conclude he has.  Defense counsel correctly identified the 
three issues Rivera is permitted to raise on appeal after pleading guilty: (1) the District 
Court’s jurisdiction, (2) the procedural validity or voluntariness of the guilty plea, and (3) 
 
1 Rivera initially entered a plea of not guilty to the indictment but, after signing the 
plea agreement, entered a guilty plea at a change of plea hearing. 
2 Although he was permitted to do so, Rivera did not file a pro se brief. 
3 An issue is frivolous if it “lacks any basis in law or fact.”  McCoy v. Ct. of 
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988). 
 
 
 
3 
 
the reasonableness of the sentence.  See United States v. Langley, 52 F.4th 564, 568, 574-
75 (3d Cir. 2022).  And counsel adequately explained in his Anders brief why, upon a 
“thorough[] search [of] the record,” United States v. Youla, 241 F.3d 296, 301 (3d Cir. 
2001), there is no non-frivolous argument on appeal as to each issue.  Counsel’s brief 
confirms the District Court’s jurisdiction under 18 U.S.C. § 3231 and explains why any 
challenge to Rivera’s guilty plea would be frivolous.  Counsel also points out the District 
Court correctly applied our framework in United States v. Gunter, 462 F.3d 237 (3d Cir. 
2006), and the 18 U.S.C. § 3553(a) factors in imposing its sentence and rejecting 
defendant’s proposed downward variance. 
Second, we must “decide whether the case is wholly frivolous” based on our 
review of the record.  Brookins, 132 F.4th at 666 (citation and internal quotation marks 
omitted).4  We agree with counsel that no nonfrivolous issues remain on appeal.  First, 
since each count Rivera pleaded guilty to is a federal offense, see 21 U.S.C. §§ 846, 
841(a)(1), 841(b)(1)(C), any challenge to the District Court’s jurisdiction would be 
baseless.  See 18 U.S.C. § 3231 (granting original jurisdiction over “all offenses against 
the laws of the United States”).5  Second, Rivera’s guilty plea was procedurally 
reasonable and voluntary, because all charges, underlying offense conduct, and the nature 
 
4 Our review of the record is plenary, but because Rivera’s counsel adequately 
performed his step-one duties in his Anders brief, “we may limit our review to the issues 
counsel raised.”  Brookins, 132 F.4th at 666 (citation and internal quotation marks 
omitted).  We choose to do so here.  
5 Moreover, we have jurisdiction under 28 U.S.C. § 1291. 
 
 
 
4 
 
of the change to the original plea were clearly explained to Rivera in the indictment, in 
the written and signed plea agreement, and/or at the change of plea hearing.  Third, 
Rivera’s sentence was procedurally and substantively reasonable.  At sentencing, the 
Government agreed to Rivera’s objection concerning a role enhancement, and the District 
Court consequently reduced his total offense level and arrived at the correct Guidelines 
range.  And because Rivera withdrew his other objection, the District Court did not need 
to rule on it.  The District Court then methodically considered the § 3553(a) factors in 
exercising its discretion to reject Rivera’s proposed downward variance and sentence him 
instead to the bottom of the Guidelines range, noting inter alia Rivera’s prior criminal 
history and good behavior while in state custody.  See United States v. Cooper, 437 F.3d 
324, 329 (3d Cir. 2006).  Accordingly, the court met its obligations under this Circuit’s 
sentencing protocol and imposed a substantively reasonable sentence.  See Gunter, 462 
F.3d at 247; United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). 
For these reasons, we will grant the motion to withdraw and affirm the District 
Court’s judgment. 


USA v. Gerinardo Rivera

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-15-2025 
Josue Sanchez v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Josue Sanchez v. Attorney General United States of America" (2025). 2025 Decisions. 666. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/666 
This August is brought to you for free and open access by the Opinions of the United States Court of Appeals 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. 24-2279 
____________ 
 
JOSUE ROMAN SANCHEZ, 
Petitioner 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
___________ 
 
On Petition for Review of a 
Decision of the Board of Immigration Appeals 
(BIA-1: A204-600-853) 
Immigration Judge: Adrian N. Armstrong 
 
___________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
March 10, 2025 
___________ 
 
Before: SHWARTZ, RESTREPO, and CHUNG, Circuit 
Judges 
(Filed: August 15, 2025) 
 
2 
 
___________ 
 
OPINION 
___________ 
 
Michael G. Brucki 
Law Office of Michael G. Brucki 
911 N Wood Avenue 
Linden, NJ 07036 
 Counsel for Petitioner 
 
 
Erik R. Quick 
Jonathan A. Robbins 
Yaakov M. Roth 
United States Department of Justice 
Office of Immigration Litigation 
P.O. Box 878 
Ben Franklin Station 
Washington, DC 20044 
 Counsel for Respondent 
 
RESTREPO, Circuit Judge 
 
Josue Roman Sanchez, a native and citizen of Mexico, 
petitions this Court for review of the denial of his applications 
for asylum, withholding from removal, protection under the 
Convention Against Torture (CAT), and cancellation of 
removal.  The Board of Immigration Appeals (BIA) did not 
abuse its discretion in finding that Sanchez waived his 
challenges to the denial of asylum, withholding of removal, 
and CAT protection, rendering the claims unexhausted below 
and unreviewable by this Court.  We also agree with the BIA 
3 
 
that Sanchez failed to raise a meritorious issue of law in 
challenging the denial of his cancellation of removal.  In 
addition, we hold the BIA properly rejected Sanchez’s Fifth 
Amendment due process claim.  We will therefore dismiss in 
part and deny in part his petition for review. 
I. 
Sanchez was born in Mexico in 1997 and illegally 
entered the United States in 2000. Between June 2019 and 
December 2021, Sanchez was charged with an array of crimes, 
including arrests for assault by automobile, aggravated driving 
while intoxicated, theft, and drug offenses.  In August and 
December 2021, he was convicted of driving under the 
influence (DUI) pursuant to Pennsylvania and New Jersey 
laws, respectively.   
In June 2023, the Department of Homeland Security 
(DHS) detained Sanchez and charged him as removable under 
8 U.S.C. § 1182(a)(6)(A)(i).  Sanchez conceded the 
removability charge.  In July 2023, he applied for asylum, 
statutory withholding of removal, and CAT protection. In 
January 2024, Sanchez applied for cancellation of removal 
under 8 U.S.C. § 1229b(b)(1).   
Sanchez appeared before the Immigration Judge (IJ) for 
a merits hearing on March 20, 2024.  Regarding the application 
for cancellation of removal, the IJ found that Sanchez failed to 
rebut the presumption that he lacked good moral character due 
to his DUI convictions or demonstrate that his removal would 
cause sufficient hardship for his wife, whom he married while 
in immigration detention. Deeming their testimony 
unnecessary, the IJ declined to have Sanchez’s psychologist 
and wife testify as witnesses, choosing instead to rely on the 
4 
 
reports and exhibits submitted as evidence.1  On April 3, 2024, 
the IJ denied all forms of relief.   
Sanchez appealed to the BIA, which dismissed the 
appeal on July 8, 2024. The BIA deemed waived any issue 
regarding the denial of his asylum, withholding from removal, 
and CAT protection applications.  It agreed with the IJ that the 
DUI convictions precluded a finding that Sanchez possessed 
good moral character.  It also denied Sanchez’s due process 
claim, concluding that he was afforded a “full and fair hearing” 
before the IJ.  A8.  Sanchez petitioned this Court, seeking 
review of the denial of his application for relief.  
This Court has jurisdiction to review the Agency’s 
rulings under 8 U.S.C. § 1252(a).  Because the BIA issued a 
separate opinion that incorporated only some aspects of the IJ’s 
decision, this Court must review both decisions.  See Voci v. 
Gonzales, 409 F.3d 607, 613 (3d Cir. 2005) (directing the Court 
to review both IJ and BIA opinions if the opinions address 
different aspects of the petitioner’s claims).  
II. 
 
1 The record included, among other things, the psychologist’s 
thirty-page report that outlined Sanchez’s mental health 
conditions and their linkage to his abusive use of alcohol.  The 
record also included a report of the physical and psychological 
conditions suffered by his wife, including her diagnoses of 
depression, anxiety, and polycystic ovarian syndrome. In 
addition to the reports, the record included several letters from 
Sanchez’s counselors, wife, family, and friends discussing his 
participation in rehabilitation and counseling.   
5 
 
First, the BIA did not abuse its discretion in deeming 
Sanchez’s claims for asylum, withholding of removal, and CAT 
protection waived.  Because Sanchez failed to exhaust these 
claims before the BIA, we lack jurisdiction to review them 
now.  
We may review final orders of removal “only if . . . the 
[petitioner] has exhausted all administrative remedies available 
to the [petitioner] as of right.”  8 U.S.C. § 1252(d)(1).  To fully 
exhaust administrative remedies, a petitioner must challenge 
the IJ’s determinations denying relief in its appeal to the BIA.  
Lin v. Att’y Gen., 543 F.3d 114, 120–21 (3d Cir. 2008); see also 
Abdulrahman v. Ashcroft, 330 F.3d 587, 594–95 (3d Cir. 2003) 
(petitioner must “raise . . . each claim or ground for relief” 
before the BIA).  Even issues raised before the BIA may be 
deemed waived and precluded from review if a petitioner fails 
to “meaningfully challenge[]” an IJ’s decision.  Uddin v. Att’y 
Gen., 870 F.3d 282, 287–88 (3d Cir. 2017).  We review the 
BIA’s waiver determinations for an abuse of discretion.  See id. 
at 288.  If deeming a claim waived was a proper act of 
discretion, the petitioner has not exhausted all available 
remedies, and the claim may not be reviewed by this Court.  
Here, the IJ barred Sanchez’s asylum application 
because it was filed in 2023, twenty-three years after he first 
arrived in the United States and therefore well past the one-
year deadline.  8 U.S.C. § 1158(a)(2)(B).  The IJ rejected 
Sanchez’s argument that changed conditions in Mexico either 
justified the delay in filing or qualified as an exception to the 
one-year time limit under 8 U.S.C. § 1158(a)(2)(D). On appeal 
to the BIA, Sanchez did not challenge the barring of his asylum 
application, either in his notice of appeal or in his brief to the 
BIA.  Because the BIA did not abuse its discretion in finding 
6 
 
this claim waived, it is unreviewable on appeal.2  Uddin, 870 
F.3d at 288; see also Zheng v. Gonzales, 422 F.3d 98, 107–08 
(3d Cir. 2017).   
For the withholding claim, the IJ concluded that 
Sanchez failed to show that it was more likely than not that he 
would face persecution based on his identity as an 
Americanized Mexican, or that he had faced past persecution 
in Mexico. For the CAT claim, the IJ found Sanchez failed to 
demonstrate that he faced a personalized risk of torture as an 
Americanized Mexican, or that officials in Mexico would 
acquiesce to any such torture. As with his asylum claim, the 
BIA did not abuse its discretion in ruling that Sanchez failed to 
meaningfully challenge the IJ’s determinations, by not raising 
the issue in the notice of appeal or his briefing, and thereby 
waived any claim of error. We will thus not review these 
withholding and CAT claims on appeal.  See Santos-Zacaria v. 
Garland, 598 U.S. 411, 416, 423 (2023) (holding, subject to 
waiver and forfeiture principles, § 1252(d)(1) allows a court to 
 
2 To the extent Sanchez asserts the IJ failed to consider the 
“other serious harm” he would face if removed to 
Mexico, see AR 11-14 (Pet. Br. before the BIA); Pet. Br. at 36-
28, and does so in an effort to seek a humanitarian asylum 
claim, it fails because he did not establish past persecution, a 
necessary element for such a claim.  See 8 C.F.R. § 
1208.13(b)(1)(iii)(A)-(B); Al-Fara v. Gonzales, 404 F.3d 733, 
740 (3d Cir. 2005) (holding that, because an applicant failed to 
establish past persecution, his claim for humanitarian asylum 
also failed).  Thus, the BIA correctly rejected his claim for 
humanitarian asylum.   
 
7 
 
review final immigration orders only after administrative 
remedies are fully exhausted).3 
We will thus dismiss Sanchez’s petition as to these 
claims. 
III. 
Regarding the denial of Sanchez’s application for 
cancellation of removal, the BIA agreed with the IJ’s 
conclusion that his “multiple drunk driving [] convictions 
preclude him from establishing the requisite good moral 
character.”  A8.  Because we conclude that substantial evidence 
supports the BIA’s determination that Sanchez lacked good 
moral character to avail himself of cancellation of removal, we 
will deny the petition.  
To qualify for cancellation of removal, 8 U.S.C. § 
1229b(b)(1) requires the removable individual to show, inter 
alia, that he “has been a person of good moral character” 
during at least a ten-year continuous period within the United 
States.  See 8 U.S.C. § 1229b(b)(1)(A-B).4  Multiple DUI 
 
3 Even if we were to entertain the claims raised before this 
Court, we would conclude that the IJ properly found Sanchez 
was not entitled to relief.  Before the IJ, Sanchez did not 
provide any proof beyond mere speculation that he would be 
subjected to torture or persecution on account of being an 
Americanized Mexican upon removal to Mexico.  
 
4 Section 1229b(b)(1)(A-D) allows for cancellation of 
removal if the individual: 
 
8 
 
convictions during the ten-year statutory period of § 1229b 
“are strong evidence that an alien lacked good moral character 
 
(A) has been physically present in the United 
States for a continuous period of not less than 10 
years immediately preceding the date of such 
application; 
 
(B) has been a person of good moral character 
during such period; 
 
(C) has not been convicted of an offense under 
section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of 
this title, subject to paragraph (5); and 
 
(D) establishes that removal would result in 
exceptional and extremely unusual hardship to 
the alien’s spouse, parent, or child, who is a 
citizen of the United States or an alien lawfully 
admitted for permanent residence. 
 
The BIA did not address Sanchez’s additional claim under 8 
U.S.C. § 1229b(1)(D) that his United States citizen wife would 
suffer exceptional and extremely unusual hardship upon his 
removal.  The IJ determined that Sanchez did not demonstrate 
she would suffer hardship beyond what would ordinarily result 
from a relative’s removal. We need not address this hardship 
determination because the good moral character determination 
is dispositive.  See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(“As a general rule courts and agencies are not required to 
make findings on issues the decision of which is unnecessary 
to the results they reach.”). 
 
9 
 
during that time and is thus not eligible for cancellation of 
removal.”  In re Castillo-Perez, 27 I. & N. Dec. 664, 669 (A.G. 
2019).  Yet Castillo-Perez established a “rebuttable 
presumption” of a lack of such character, allowing the 
removable person to present “substantial relevant and [] 
contrary evidence” that he “had good moral character even 
during the period within which he committed the DUI 
offenses” and that the offenses “were an aberration.”  Id. at 
665, 671.   
The IJ found that Sanchez failed to rebut the 
presumption that he lacked good moral character where his 
four DUI arrests occurred in three states over the course of 19 
months and “were exacerbated by motor vehicle accidents with 
other cars, high blood alcohol content, [and] driving at high 
rates of speed.”  AR 66.  On appeal to the BIA, Sanchez argued 
that he could have rebutted that presumption had he been 
allowed to present his wife and psychologist as witnesses at his 
merits hearing.  
Generally, we have jurisdiction to review constitutional 
claims and questions of law but not the judgments denying 
discretionary relief from removal, including decisions 
regarding cancellation of removal under 8 U.S.C. § 1229b(b).  
8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 596 U.S. 
328, 347 (2022).  In Wilkinson v. Garland, the United States 
Supreme Court determined that the question of whether an 
applicant demonstrated “exceptional and extremely unusual 
hardship” for purposes of establishing eligibility for 
cancellation of removal was judicially reviewable because it 
was a “mixed question of law and fact,” that required an IJ to 
apply factual findings to a legal standard.  601 U.S. 209, 221, 
225 (2024) (Wilkinson I).  By contrast, in Patel, the Court held 
that factual determinations, including those involving witness 
10 
 
credibility, are not reviewable.  596 U.S. at 334, 340.  Like the 
hardship standard in Wilkinson I and unlike the factual 
determinations in Patel, the good moral character standard is 
an “application of a legal standard to undisputed or established 
facts,” and thus, reviewable.  See Wilkinson I, 601 U.S. at 221 
(quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 234 
(2020)).  We review the good moral character determination 
under a substantial evidence standard.  See Wilkinson v. Att’y 
Gen., 131 F.4th 134, 138–40 (3d Cir. 2025) (applying the 
substantial evidence standard to the “exceptional and 
extremely unusual hardship” determination) (Wilkinson 
II).  Sanchez was convicted of multiple DUI offenses between 
2019 and 2021 in multiple states.  His scholastic achievements 
and rehabilitative efforts are insufficient to rebut the 
presumption that he did not have good moral 
character,  because the record shows that the DUI convictions 
were not an “aberration” given their frequency of his 
convictions.  A8 (BIA’s Op.); AR 67 (IJ’s Op.), 199, 201, 341.  
Accordingly, substantial evidence supports the determination 
that Sanchez did not demonstrate good moral character to 
qualify for cancellation of removal.   
To the extent Sanchez is raising a legal argument that he 
was deprived the opportunity to present witnesses to rebut the 
presumption, in violation of his due process rights, we join the 
BIA in rejecting this claim.  See Serrano-Alberto v. Att’y Gen., 
859 F.3d 208, 213 (3d Cir. 2017) (explaining that the Fifth 
Amendment guarantees an individual in removal proceedings 
the opportunity to be meaningfully heard and reasonably 
present their case).  The BIA properly concluded that Sanchez 
did not establish how his wife’s and psychologist’s testimony 
would have rebutted the IJ’s finding, or that they would have 
provided information not already contained in the report and 
11 
 
statements submitted as exhibits.  For this reason, Sanchez 
failed to prove that he suffered substantial prejudice, which is 
fatal to his Fifth Amendment claim.   See id.; see also 
Bonhometre v. Gonzalez, 414 F.3d 442, 448 (3d Cir. 2008) 
(explaining that due process claim requires a showing of 
substantial prejudice).  Because we agree no legal error 
occurred, we will deny the petition for review regarding the 
denial of his cancellation of removal. 
Because the claim regarding the denial of Sanchez’s 
cancellation of removal application necessarily addresses the 
merits of his due process claim, we need not address the alleged 
Fifth Amendment violation except to reiterate that he failed to 
prove he suffered substantial prejudice. Sanchez’s failure to 
establish that the exclusion of his wife’s and psychologist’s 
testimony before the IJ caused him prejudice is dispositive of 
his constitutional claim.  Jarbough v. Att’y Gen., 483 F.3d 184, 
192 (3d Cir. 2007) (citing Singh v. Gonzales, 432 F.3d 533, 541 
(3d Cir. 2006)). 
IV. 
For the above reasons, we will therefore dismiss in part 
and deny in part the petition for review. 


Josue  Sanchez v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-15-2025 
East Ohio Capital LLC v. City of Pittsburgh Zoning Board of 
Adjustment 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
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"East Ohio Capital LLC v. City of Pittsburgh Zoning Board of Adjustment" (2025). 2025 Decisions. 671. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/671 
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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. 24-1453 
_______________ 
EAST OHIO CAPITAL LLC, 
Appellant 
 
v. 
 
CITY OF PITTSURGH ZONING BOARD OF ADJUSTMENT; LASHAWN M. 
BURTON FAULK, individually 
              
_______________ 
On Appeal from the United States District Court  
for the Western District of Pennsylvania 
(D.C. No. 2:23-cv-00681) 
District Judge: Honorable J. Nicholas Ranjan 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a) on November 1, 2024 
Before: CHAGARES, Chief Judge and PORTER, and CHUNG, Circuit Judges. 
(Filed: August 15, 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 
PORTER, Circuit Judge. 
East Ohio Capital, LLC (“East Ohio”) sued Pittsburgh’s Zoning Board of 
Adjustment (“ZBA”) and one of its members after Pennsylvania’s Supreme Court ruled 
that a conflicted zoning board member’s failure to recuse herself from decision making 
violated due process. The District Court dismissed East Ohio’s suit as untimely. Although 
we disagree with the District Court’s determination that East Ohio’s suit was untimely, 
we nevertheless will affirm the District Court’s dismissal on the merits. 
I 
East Ohio and Northside Leadership Conference (“NLC”) undertook a 
development project in Pittsburgh’s Northside neighborhood. On August 23, 2018, the 
ZBA granted East Ohio and NLC necessary zoning variances over the objections of two 
Northside residents. But there was a problem. At the time of the ZBA’s decision, 
Lashawn Burton-Faulk was both a partner at NLC and a member of the ZBA. She did not 
recuse herself from the ZBA’s decision making process. 
Two objecting Northside residents challenged the variances in Pennsylvania state 
court. The Allegheny County Court of Common Pleas and the Commonwealth Court of 
Pennsylvania upheld the variances, but the Pennsylvania Supreme Court reversed. In a 
decision dated September 22, 2021, it held that Burton-Faulk’s conflicted status violated 
“well-settled due process principles” and remanded the matter “for a new hearing on 
[NLC’s] zoning applications before a newly constituted panel of the ZBA.” Pascal v. 
City of Pittsburgh Zoning Bd. of Adjustment, 259 A.3d 375, 385 (Pa. 2021). 
 
3 
The ZBA did not hold a new hearing for almost two years. East Ohio alleges that 
while it waited, it suffered various forms of economic injuries. On April 25, 2023—at 
which point the ZBA had still not held a new hearing on the variances—East Ohio 
brought this Section 1983 suit against the ZBA and Burton-Faulk. In July of 2023, the 
ZBA held a new hearing without Burton-Faulk, and it reapproved the variances on 
August 10, 2023. Even with the variances, East Ohio has pursued this action against the 
ZBA and Burton-Faulk. The District Court held that East Ohio’s action was barred by the 
applicable statute of limitations. East Ohio appealed.1 
II 
We review a “District Court’s decision on a motion to dismiss de novo.” McTernan 
v. City of York, 577 F.3d 521, 526 (3d Cir. 2009). At the motion to dismiss stage, “all 
well-pleaded allegations of the complaint must be taken as true and interpreted in the 
light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.” 
Id. (quoting Schrob v. Catterson, 948 F.2d 1402, 1408 (3d Cir. 1991)). 
III 
A 
“The length of the statute of limitations for a § 1983 claim is governed by the 
personal injury tort law of the state where the cause of action arose.” Kach v. Hose, 589 
F.3d 626, 634 (3d Cir. 2009). Because Pennsylvania’s statute of limitations for personal 
 
1 The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and we have 
jurisdiction over its final judgment under 28 U.S.C. § 1291. 
 
4 
injury claims is two years, East Ohio had two years to file suit from the time its cause of 
action accrued. See 42 Pa. Cons. Stat. § 5524. 
“Under federal law, a cause of action accrues, and the statute of limitations begins 
to run ‘when the plaintiff knew or should have known of the injury upon which its action 
is based.’ ” Kach, 589 F.3d at 634 (quoting Sameric Corp. v. City of Philadelphia, 142 
F.3d 582, 599 (3d Cir. 1988)). That makes sense because to state a Section 1983 claim, a 
plaintiff “must prove not only that [his rights were violated], but that [the complained of 
conduct] caused him actual, compensable injury.” Heck v. Humphrey, 512 U.S. 477, 487 
n.7 (1994). 
The issue on appeal is when East Ohio’s cause of action accrued, which depends 
on when it was aware of its alleged injury. East Ohio argues that the statute of limitations 
started on September 22, 2021, when the Pennsylvania Supreme Court vacated the 
variances. The ZBA and Burton-Faulk counter that the statute of limitations began to run 
on May 17, 2018, when, they submit, East Ohio “knew or should have known about the 
conflict of interest.” Appellee’s Br. at 9. 
We conclude that East Ohio’s cause of action did not accrue until it “knew or 
should have known” about the various economic harms it claims to have suffered on 
account of the variances being voided. Kach, 589 F.3d at 634 (quoting Sameric Corp, 142 
F.3d at 599). Because the earliest that East Ohio could have known about those alleged 
injuries was the date of the Pennsylvania Supreme Court’s adverse ruling on September 
22, 2021, its suit was timely. 
 
5 
East Ohio correctly notes that not until the Pennsylvania Supreme Court voided 
the variances would it have actually suffered the injury that it alleges—various economic 
harms caused by the delay. Both the Pennsylvania state trial court and intermediate 
appellate court had sustained the variances, so East Ohio had yet to suffer the alleged 
injury that has furnished the basis of its suit. 
The District Court’s conclusion that “the ‘harm’ here occurred when East Ohio and 
its partner, NLC, obtained variances that were tainted by the conflict of interest,” 
impermissibly rewrites East Ohio’s allegations of its own injury. App. 7. Admittedly, East 
Ohio has not been entirely clear as to whether it was directly injured by the violation of 
its due process rights or whether it was injured by the delay caused by said violation. As 
best we can tell, East Ohio’s theory is that the ZBA and Burton-Faulk violated its due 
process rights, but it was not actually injured until the state Supreme Court’s ruling 
voided the original variances causing various economic harms. Interpreting its allegations 
in a light most favorable to the non-moving party, as we must at the motion to dismiss 
stage, it was wrong for the District Court to characterize East Ohio’s alleged injury to be 
the violation of its due process rights in the summer of 2018. 
B 
Although we agree with East Ohio that the District Court erred in dismissing its 
suit as untimely, we will affirm the District Court’s dismissal of East Ohio’s suit on the 
merits. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (“We . . .  may affirm 
the District Court’s judgment on any basis supported by the record”). In Pascal, the 
Pennsylvania Supreme Court held that Burton-Faulk’s participation in the hearing and 
 
6 
decision to grant zoning variances requested by East Ohio and NLC constituted a conflict 
of interest that violated the due process rights of the objecting residents. Pascal, 259 A.3d 
at 385. Quoting language originally from the United States Supreme Court’s opinion in 
Tumey v. Ohio, the Pascal Court explained that “every procedure which would offer a 
possible temptation to the average man as a judge . . . not to hold the balance nice, clear, 
and true between the State and the accused, denies the latter due process of law.” 259 
A.3d at 383 (quoting Horn v. Twp. of Hilltown, 337 A.2d 858, 860 (Pa. 1975) (omission 
in original)). While “the latter” in the quoted material, refers to “the accused,” the same 
principle applies to parties in non-criminal contexts. Id; see also Londoner v. City of 
Denver, 210 U.S. 373, 385–86 (1908). 
But in this dispute, East Ohio was never unconstitutionally subjected to a 
“procedure which would offer a possible temptation . . . not hold the balance, nice, clear, 
and true between the State and [it].” Tumey v. Ohio, 273 U.S. 510, 532 (1927). Burton-
Faulk’s conflict of interest did not visit a due process violation upon East Ohio because 
East Ohio was never deprived of the constitutionally mandated opportunity of “a fair trial 
in a fair tribunal.” Pascal, 259 A.3d at 338 (quoting Horn, 337 A.2d at 860). Because 
East Ohio was not subjected to a fundamentally unfair process contrary to the principle 
that “no man can be a judge in his own case and no man is permitted to try cases where 
he has an interest in the outcome,” it is without a cognizable due process claim. Id. 
(quoting Horn, 337 A.2d at 860). 
* * * 
For the reasons stated above, we will affirm. 


East Ohio Capital LLC v. City of Pittsburgh Zoning Board of Adjustment

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-21-2025 
Kayann Atkinson v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Kayann Atkinson v. Attorney General United States of America" (2025). 2025 Decisions. 687. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/687 
This August is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
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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. 25-1546 
___________ 
 
KAYANN ATKINSON, 
     Petitioner 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
____________________________________ 
 
On Petition for Review of an Order of the 
Board of Immigration Appeals 
(Agency No. A043-220-885) 
Immigration Judge:  Richard Bailey 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 21, 2025 
Before:  BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed August 21, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
Kayann Atkinson petitions for review of a decision by the Board of Immigrations 
Appeals (BIA).  For the reasons that follow, we will deny the petition for review. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Atkinson, a citizen of Jamaica, was admitted to the United States as a lawful 
permanent resident in 1992.  In 2024, he was charged as removable as an individual 
convicted of two crimes involving moral turpitude (sexual conduct for a fee and indecent 
assault).  See 8 U.S.C. § 1227(a)(2)(A)(ii) (providing that noncitizen is removable if 
convicted of two or more crimes involving moral turpitude).  Represented by counsel, he 
conceded removability and applied for cancellation of removal.  An Immigration Judge 
(IJ) concluded that Atkinson was eligible for cancellation.  Finding that the negative 
factors of his criminal history outweighed the “very limited positive factors” of his long 
residence in the United States and limited family ties in Jamaica, the IJ determined that 
Atkinson had not established that he merited a favorable exercise of discretion and denied 
the application.  Atkinson then filed a counseled motion to reopen with medical records 
and letters from family members.  The IJ denied the motion, noting that Atkinson had not 
shown that the evidence was previously unavailable.  A.R. at 65-67. 
Proceeding pro se, Atkinson appealed to the Board of Immigration Appeals (BIA) 
and filed a motion to remand.  The BIA summarily dismissed the appeal for failure to file 
a brief and denied the motion to remand, having determined that the documents Atkinson 
sought to submit were not previously unavailable.  Atkinson filed a pro se petition for 
review.  We have jurisdiction pursuant to 8 U.S.C. § 1252. 
As noted above, the BIA dismissed Atkinson’s appeal for failing to file a brief.  In 
his brief before us, he does not challenge that dismissal.  Atkinson does argue that he is 
 
3 
 
not removable and challenges the validity of the predicate convictions.1  He asserts that 
one of his predicate convictions was dismissed.2  However, while represented by counsel, 
he conceded removability.  A.R. at 204; see also Calla-Collado v. Att’y Gen., 663 F.3d 
680, 683 (3d Cir. 2011) (per curiam) (noting that “an [non-citizen] is generally bound by 
the actions of his attorney”).  Thus, Atkinson’s removability is not before us.3  
 
1 Atkinson contends that his charge of removability requires that he had been incarcerated 
for a year or more for the predicate convictions.  It does not.  He is conflating his charge 
of removability (two crimes involving moral turpitude) with the requirements for 
removing a noncitizen convicted of one crime involving moral turpitude.  See 8 U.S.C. § 
1227(a)(2)(A)(i). 
 
2 In September 2002, Atkinson “admitted to facts sufficient for a finding of guilty” for the 
offense of paying for sexual conduct.  A.R. at 567-573.  The written plea form advised 
Atkinson that the conviction could have immigration consequences.  A.R. at 573.  It 
appears that he was sentenced to a $1000 fine, $300 in court costs, and 15 hours of 
community service.  The record for the conviction does contain an entry three years later 
dated October 19, 2005, with the word “dismissed” stamped at the end.  A.R. at 568.  
Even if Atkinson could show that this unexplained entry means his conviction was 
vacated (as opposed to administratively closed), he would still be considered convicted 
for immigration purposes unless the conviction was vacated based on a substantive or 
procedural defect.  See Rodriguez v. Att’y Gen., 844 F.3d 392, 396 (3d Cir. 2016).  
Moreover, Atkinson is not treating the conviction as if it was vacated in 2005.  In March 
2024, an attorney filed a motion to “withdraw admission to sufficient facts.”  A.R. at 334.  
The motion was denied in July 2024, and Atkinson filed a notice of appeal.  A.R. at 335. 
 
3 With respect to his conviction for indecent assault, Atkinson argues in his brief that he 
was unaware of the immigration consequences when he took a plea deal for that charge.  
The records, however, do not reflect any guilty plea.  Rather, it appears that he was found 
guilty after a jury trial.  See A.R. at 574; see also Commonwealth v. Atkinson, No. 07P-
1769, 2009 WL 258906 (Mass. App. Ct. 2009).  In his reply brief, Atkinson also 
challenges his conviction for paying for sexual conduct, alleging that he was entrapped 
by a female police officer.  We note that convictions that are the basis of a removal order 
may not be collaterally challenged in a petition for review.  See Drakes v. INS, 330 F.3d 
600, 603 (citing Giammario v. Hurney, 311 F.2d 285, 287 (3d Cir. 1962)). 
 
 
4 
 
Atkinson suggests that the IJ focused on his criminal history and should have 
considered the circumstances of the charges against him.  To the extent that Atkinson is 
challenging the IJ’s exercise of discretion, we lack jurisdiction over such a challenge.  
See 8 U.S.C. § 1252(a)(2)(B)(i) (stripping courts of jurisdiction to review a judgment 
regarding the discretionary relief of cancellation of removal); § 1252(a)(2)(D) (allowing 
jurisdiction over constitutional claims or questions of law); Wilkinson v. Garland, 601 
U.S. 209, 218, 225 n.4 (2024).4 
Atkinson contends that his competency should have been addressed before the IJ.  
Thus, he appears to challenge the BIA’s denial of his motion to remand the matter to the 
IJ to consider additional evidence of his mental health.  A motion to remand is the 
functional equivalent of a motion to reopen.  Korytnyuk v. Ashcroft, 396 F.3d 272, 282 
(3d Cir. 2005).  We review the denial of a motion to reopen for an abuse of discretion.  
Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).  In denying the motion, the BIA 
noted that Atkinson had not shown that the records were previously unavailable.  See 8 
C.F.R. § 1003.2 (stating that a motion to reopen shall not be granted unless evidence 
offered was not available and could not have been presented earlier).  It also observed 
that counsel did not try to obtain these records or ask Atkinson about his mental health 
 
4 Atkinson also argues that he has a statutory right to reopen his removal proceeding if his 
removal would cause mental anguish to his citizen daughter.  He does not cite to any 
statute in support.  It is possible that Atkinson is referring to 8 U.S.C. § 1229b(b), which 
sets forth the requirements for a deportable noncitizen to be eligible for cancellation of 
removal.  One of these requirements is that removal would cause “exceptional and 
extremely unusual hardship” to, in relevant part, the applicant’s citizen child.  As a lawful 
permanent resident, Atkinson’s application for cancellation of removal fell under 
§ 1229b(a) and did not require a showing of such hardship. 
 
5 
 
during the hearing.  Atkinson does not explain why these records could not have been 
presented earlier.  Moreover, while the medical records he submitted to the BIA indicate 
that he may suffer from anxiety, panic disorder, depressive disorder, and post-traumatic 
stress disorder, there is nothing to support a determination that he is not competent.  The 
BIA did not abuse its discretion in denying Atkinson’s motion to remand. 
For the reasons above, we will deny the petition for review. 
 


Kayann  Atkinson v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-21-2025 
Carl Williams v. Linode Limited Liability Co 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Carl Williams v. Linode Limited Liability Co" (2025). 2025 Decisions. 688. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/688 
This August is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
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. 24-1793 
____________ 
 
CARL WILLIAMS, 
Appellant 
 
v. 
 
LINODE LIMITED LIABILITY CO, DBA Linode LLC; LINODIAN LLC,  
DBA Linode LLC; DANIEL SPATARO; THOMAS ASARO 
____________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:22-cv-01618) 
District Judge:  Honorable Joshua D. Wolson 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
July 10, 2025 
____________ 
 
Before:  KRAUSE, MATEY, and PHIPPS, Circuit Judges 
 
(Filed: August 21, 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 
 
PHIPPS, Circuit Judge. 
An employee was fired shortly after a newspaper published an article about his then-
romantic partner, a man who had been charged with hiring a hitman to kill the boy with 
whom he had exchanged sexually explicit photographs.  The terminated employee sued his 
former employer, claiming that his termination was the result of unlawful discrimination 
based on his age and sexual orientation.  After a trial, however, a jury resolved all counts 
in the employer’s favor.  On appeal, the terminated employee challenges several of the 
District Court’s discretionary rulings.  For the reasons below, we will affirm the judgment. 
FACTUAL BACKGROUND 
In the summer of 2020, Carl Williams was in his sixth year working as a network 
engineer at Linode, a cloud computing company in Philadelphia, Pennsylvania.  On 
August 13, 2020, the Philadelphia Inquirer published an article about Williams’s then-
partner, John Musbach.  The article reported that Musbach had previously pleaded guilty 
to charges related to exchanging sexually explicit images with a minor and was now being 
charged with hiring a hitman to kill that minor.  The article further reported that at a recent 
hearing concerning Musbach, Williams testified that he was aware of Musbach’s history 
with child pornography.  Six days after the article’s publication, Linode fired Williams.   
PROCEDURAL HISTORY 
After filing a charge with the Equal Employment Opportunity Commission and 
receiving a right-to-sue letter, Williams sued Linode LLC, his manager, and Linode’s Chief 
Operating Officer in the District Court.  He brought claims of unlawful workplace 
discrimination under two federal statutes: Title VII, see 42 U.S.C. § 2000e-2(a), and the 
Age Discrimination in Employment Act, see 29 U.S.C. §§ 623, 626(c)(1).  In exercising 
federal-question jurisdiction over the case, see 28 U.S.C. § 1331, on September 1, 2022, 
3 
 
after the Defendants had filed an answer, the District Court issued an initial scheduling 
order that set a deadline for motions to amend the complaint of September 15, 2022.  The 
case then proceeded through discovery and motion practice.   
On January 12, 2024, eleven days before the trial date, the District Court held a final 
pretrial conference.  In anticipation of that conference, Williams submitted a pretrial 
memorandum, which asserted that in addition to the claims under Title VII and the ADEA, 
the case involved claims under the Pennsylvania Human Relations Act, see 43 Pa. Stat. 
§ 953, and the Philadelphia Fair Practices Ordinance, see Phila. Code §§ 9-1101–9-1130.  
But during the conference, Linode pointed out that Williams did not allege PHRA or PFRO 
claims in his complaint.  Williams agreed but argued that he should be granted leave to 
amend his complaint to include those claims.  Over Linode’s objections, the District Court 
granted Williams until the end of the day to seek leave to amend.  The next day, Williams 
filed a motion to amend.  That motion was denied, and in the same order, the District Court 
dismissed the claims against Williams’s manager and Linode’s COO.   
Also prior to trial, Williams filed a motion in limine to exclude all evidence about 
Musbach under Federal Rule of Evidence 403 on the ground that it would unduly prejudice 
the jury.  The District Court denied Williams’s motion as it pertained to the article about 
Musbach, explaining that reading the article was the only way for the jury to assess 
Linode’s defense – that its legitimate, nondiscriminatory reason for firing Williams was 
what the article revealed about his relationship with Musbach.  The District Court further 
explained that although other information about Musbach’s crimes not contained in the 
article might ordinarily be inadmissible, here Williams was seeking damages for emotional 
distress, and so Linode was entitled to introduce evidence that his distress was caused not 
by his treatment at Linode but rather by the circumstances of his partner’s incarceration.   
4 
 
On January 23, 2024, the jury trial began.  As part of his case, Williams called two 
of Linode’s employees – the Director of People Operations and the COO – to testify about 
Linode’s rationale for firing Williams.  Williams sought to impeach those witnesses using 
a position statement drafted by Linode that contradicted the justification for Williams’s 
firing that they provided during trial.  But both witnesses denied ever seeing the document, 
and so the District Court sustained Linode’s objections to questioning about the document 
for lack of foundation.  Once Williams provided a foundation for the position statement, 
however, he was permitted to cross-examine the COO about it.   
Also at trial, during his questioning of Linode’s Director of People Operations, 
Williams attempted to establish that Linode had improperly withheld documents during 
discovery.  But at no point during the litigation had the District Court found that Linode 
improperly withheld discovery.  And the District Court sustained Linode’s objection to that 
line of questioning.  
In addition, the District Court permitted Linode to admit the Inquirer article into 
evidence and to reference it during trial.  During its opening statement on the first day of 
trial, Linode mentioned the article and its report of Williams’s relationship with Musbach.  
On the third day of trial, Linode cross-examined Williams about the article.  Before trial 
began on the fourth day, Williams requested a limiting instruction that the Inquirer article – 
which had not yet been introduced into evidence – could be considered only for the effect 
it had on Linode, not for its truth.  The District Court told Williams that he would have to 
wait until the charge conference to request any limiting instructions.  Williams did not 
request any limiting instructions when the article was admitted into evidence on the fifth 
day of trial.   
5 
 
During the charge conference, when the District Court reviewed the proposed jury 
instructions with the parties section by section, Williams did not request any limiting 
instructions with respect to the article.   
On January 31, 2024, after a seven-day trial, the jury found in favor of Linode on 
all counts.  Two weeks later, Williams filed a motion for a new trial.  In that motion, he 
again argued that the evidence about Musbach should have been excluded under Rule 403.  
Relatedly, he asserted that Linode had made false statements about Williams, Musbach, 
and the relationship between the two, which he contended misled the jury.  He further 
argued that he should have been allowed to cross-examine Linode’s witnesses about the 
position statement and the documents not turned over during discovery.  The District Court 
denied that motion in full.   
Through a timely notice of appeal, Williams invoked this Court’s appellate 
jurisdiction, and he now challenges those rulings.  See 28 U.S.C. § 1291. 
DISCUSSION 
Each of the rulings that Williams now challenges – the denial of leave to amend, the 
denial of his motion in limine, the evidentiary rulings at trial, the jury instructions, and the 
denial of his motion for a new trial – are reviewed for an abuse of discretion.  See DLJ 
Mortg. Cap., Inc. v. Sheridan, 975 F.3d 358, 370 (3d Cir. 2020) (denials of leave to 
amend); United States v. Miah, 120 F.4th 99, 106, 112 (3d Cir. 2024) (motions in limine); 
United States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (evidentiary rulings and 
refusals to provide jury instructions); Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) 
(motions for a new trial).1 
 
1 Williams also asserts that he is entitled to relief under the cumulative-error doctrine, but 
that doctrine has been rejected in the civil context.  See U.S. Sec. & Exch. Comm’n v. 
Infinity Grp. Co., 212 F.3d 180, 196 (3d Cir. 2000).  Additionally, although he listed in his 
brief as an “issue[] presented for review” whether the District Court erred in denying his 
6 
 
A. The Pretrial Rulings  
1. The Denial of Williams’s Motion to Amend 
Williams argues that the District Court abused its discretion by denying his motion 
to amend.  Williams first expressed an interest in amending his complaint at the final 
pretrial conference in January 2024 – over sixteen months after the September 15, 2022, 
deadline imposed by the initial scheduling order and less than two weeks before the start 
of trial.  At that point, it was late in the litigation for the proposed amendment of adding 
two more claims.  Even so, the District Court allowed until the end of the day for 
amendment.  Williams missed that extended deadline and did not attempt to show good 
cause for doing so.  See Fed. R. Civ. P. 16(b).  It was not an abuse of discretion for the 
District Court to deny the requested amendment after Williams missed that second, 
extended deadline. 
2. The Denial of Williams’s Motion in Limine to Exclude Evidence 
Regarding Musbach’s Crimes and Incarceration 
Williams contends that the District Court abused its discretion in denying his motion 
in limine, which sought to exclude the Inquirer article as unduly prejudicial.  Under 
Rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially 
outweighed by a danger of . . . unfair prejudice.”  Fed. R. Evid. 403.  Williams’s argument 
focuses on the degree of unfair prejudice, not the probative value of the article: he asserts 
that evidence relating to child pornography was so “inherently inflammatory” that it would 
 
motion to disqualify counsel, Williams’s Opening Br. 1, he did not cite any cases or 
evidence in support of that argument, and so he failed to preserve it for appeal, see Barna 
v. Bd. of Sch. Dirs., 877 F.3d 136, 145 (3d Cir. 2017) (“To be preserved, all arguments 
must be supported specifically by ‘the reasons for them, with citations to the authorities 
and parts of the record on which the appellant relies.’  As a result, we have consistently 
refused to consider ill-developed arguments or those not properly raised and discussed in 
the appellate briefing.” (internal citation omitted) (quoting Fed. R. App. P. 28(a)(8)(A))); 
Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 821 n.10 (3d Cir. 2006) (“[P]assing 
and conclusory statements do not preserve an issue for appeal.”). 
7 
 
“cloud[] jurors’ judgment and lead[] to verdicts based on disgust rather than fairness.”  
Williams’s Opening Br. 18.  But the District Court also acknowledged the article’s 
probative value, since Linode asserted that it terminated Williams because of the article.  
Thus, in light of the article’s centrality to Linode’s defense, the District Court did not abuse 
its discretion in concluding that the risk of unfair prejudice did not substantially outweigh 
the article’s probative value.  See Miah, 120 F.4th at 112 (explaining that a district court’s 
weighing of probativeness and prejudice is “due great deference” – it may be reversed 
“only if the court’s conclusion is ‘arbitrary or irrational’” (quoting United States v. Bergrin, 
682 F.3d 261, 280 (3d Cir. 2012))). 
Nor was it an abuse of discretion for the District Court to rule that if Williams 
presented evidence of emotional distress, then Linode could introduce details of Musbach’s 
crimes and convictions not discussed in the article.  If Williams sought to prove emotional 
distress, then the cause of any such distress was fair game, and consequently, in that 
circumstance, Linode could introduce evidence that Musbach’s actions – not Linode’s – 
caused any such distress. 
B. The Rulings During Trial 
1. The Exclusion of the Position Statement for Lack of Foundation 
Williams further challenges the District Court’s exclusion of questioning about the 
position statement.  He contends that the witnesses’ assertions that they did not recognize 
the document were not valid bases for prohibiting the document’s use during cross-
examination.  But when the witnesses were unable to authenticate that document – and 
Williams had not otherwise done so – it was not an abuse of discretion for the District 
Court to deny inquiries based on the substance of the document.  See Leonard v. Stemtech 
Int’l Inc., 834 F.3d 376, 401 (3d Cir. 2016) (recognizing the need to have a witness to 
identify documents used during trial); see also Forrest v. Beloit Corp., 424 F.3d 344, 356, 
8 
 
360 (3d Cir. 2005) (explaining that questioning that lacks a proper foundation risks 
prejudicing or confusing the jury). 
2. The Exclusion of Questioning About Alleged Discovery Misconduct 
Williams also argues that the District Court abused its discretion in sustaining 
Linode’s objection to his attempt to introduce evidence that would support an adverse 
inference instruction for discovery abuses by Linode.  See generally Gumbs v. Int’l 
Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983) (explaining that an adverse inference 
instruction is an instruction that the jury may infer from a party’s failure to produce 
particular evidence that the unproduced evidence was unfavorable to that party).  While 
the appropriateness of such an adverse inference instruction is usually determined through 
discovery motions, see Fed. R. Civ. P. 37(a) (describing the process for compelling 
discovery), it may still be requested at trial.  But given the nature of the topic at issue here, 
the underlying admissibility of that evidence is a matter most appropriately evaluated 
outside of the presence of a jury, see Fed. R. Evid. 104(a), (c)(3) (stating that hearings on 
preliminary questions should be conducted without the jury when “justice so requires”).  
Yet in front of the jury, Williams sought to question a witness who would not know whether 
Linode had withheld any requested discovery materials and who had not referenced any 
unproduced documents during their testimony.  The District Court did not abuse its 
discretion in preventing Williams from engaging in that line of questioning. 
3. The Denial of Limiting Instructions About the Inquirer Article 
Williams further faults the District Court for not providing a limiting instruction 
regarding the Inquirer article about Musbach.  But Williams did not request such an 
instruction when Linode first mentioned the article in its opening statement or even when 
Linode used the article to cross-examine Williams himself.  Rather, Williams waited until 
9 
 
the conference before the fourth day of trial to raise that point.  Cf. Fed. R. Evid. 105 (“If 
the court admits evidence that is admissible against a party or for a purpose – but not 
against another party or for another purpose – the court, on timely request, must restrict the 
evidence to its proper scope and instruct the jury accordingly.” (emphasis added)).  Even 
so, the District Court allowed Williams to raise that issue at the charge conference.  And 
when the article was introduced into evidence on the fifth day of trial, Williams did not 
then request a limiting instruction.  Nor did he request such an instruction at the subsequent 
charge conference.  See Smith v. Borough of Wilkinsburg, 147 F.3d 272, 277 (3d Cir. 1998) 
(explaining that when “counsel was given that opportunity [to make objections to the jury 
charge] and never objected to the charge at issue, the objection was deemed waived” (citing 
Piechoski v. Grace Lines, Inc., 409 F.2d 66, 70 (3d Cir. 1969))); cf. Fed. R. Civ. P. 51(b)–
(c) (stating that a request for jury instructions is timely if made at the court’s designated 
opportunity to make requests on the record).  Without Williams making a more 
contemporaneous, targeted request for a limiting instruction with respect to the article – 
either to be given during the trial or when charging the jury – the District Court did not 
abuse its discretion. 
C. The Post-Trial Motion 
Williams argues that the District Court erred in denying his Rule 59(b) motion, 
which sought a new trial because, in his view, Linode’s trial witnesses made false and 
misleading claims about Williams and their motivations for firing him.  But an assertion 
that witnesses lied does not justify a new trial – assessing credibility is entrusted to the 
jury.  See William A. Graham Co. v. Haughey, 646 F.3d 138, 143 (3d Cir. 2011).  The 
District Court therefore did not abuse its discretion in denying the motion for a new trial. 
10 
 
CONCLUSION 
For the reasons above, we will affirm the judgment and order of the District Court. 


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East Ohio Capital LLC v. City of Pittsburgh Zoning Board of Adjustment

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