Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-8-2025 
Marcel Green v. Irvington Police Department 
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Recommended Citation 
"Marcel Green v. Irvington Police Department" (2025). 2025 Decisions. 636. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3078 
___________ 
 
MARCEL GREEN; BRIANA BANKS; S. G. 
 
v. 
 
IRVINGTON POLICE DEPARTMENT; DET BRECHNER JEANNOT; JOHN DOES 1-100; 
DET MITCHELL MOLINA; DET JENKINS 
 
MARCEL GREEN, 
  Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.N.J. Civil Action No. 2:19-cv-20239) 
District Judge: Honorable Susan D. Wigenton 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 8, 2025 
 
Before: BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed August 8, 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 
 
Pro se appellant Marcel Green appeals from the District Court’s grant of summary 
judgment for defendants on his civil rights claims.  For the reasons that follow, we will 
affirm the District Court’s judgment. 
I. 
In February 2016, Green’s apartment was searched pursuant to a state court 
warrant.  Officers found dozens of bottles of prescription drugs and signed prescriptions 
for various individuals.  Detectives consulted with the prescribing doctor on several of 
the prescriptions, who stated that he had never signed the prescriptions.  Green was 
arrested, but the charges were dismissed in April 2018 after there was a complication 
with testing the pills that the police found.   
 Detectives continued to investigate Green, and in December 2018, he was arrested 
again.  In November 2019, Green pleaded guilty to one count of possession of a 
prescription legend drug in violation of N.J. Stat. Ann. § 2C:35-10.5(e)(1).  This 
conviction has not been invalidated. 
 Green initiated a civil rights action pursuant to 42 U.S.C. § 1983 in the District 
Court, bringing claims stemming from his arrests.  After discovery was complete, the 
District Court granted summary judgment in favor of defendants.  Green timely 
appealed.1 
 
1  Green sought reconsideration after the District Court’s summary judgment decision, 
but he does not discuss the District Court’s denial of reconsideration in his opening brief.  
Green also does not discuss the claims he sought to bring on behalf of his daughters.  He 
has thus forfeited these issues and we do not address them.  See In re Wettach, 811 F.3d 
99, 115 (3d Cir. 2016).   
 
3 
 
II. 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review 
over the District Court’s summary judgment decision.  See Blunt v. Lower Merion Sch. 
Dist., 767 F.3d 247, 265 (3d Cir. 2014).  Summary judgment is 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).  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). 
III. 
We agree with the District Court’s grant of summary judgment for defendants.  
Green’s claims based on his 2016 arrest were time-barred.  “A section 1983 claim is 
characterized as a personal-injury claim and thus is governed by the applicable state’s 
statute of limitations for personal-injury claims.”  Dique v. N.J. State Police, 603 F.3d 
181, 185 (3d Cir. 2010).  In New Jersey, § 1983 claims are subject to the two-year statute 
of limitations for personal injury actions.  Id.; see also N.J. Stat. Ann. § 2A:14-2. 
The District Court appropriately concluded that Green’s claims regarding his first 
arrest accrued in February 2016.  See Kach v. Hose, 589 F.3d 626, 634-35 (3d Cir. 2009) 
(“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.”) (citation and internal quotation marks omitted).  Green filed his federal 
complaint over three years later, in November 2019, which was too late.  He does not 
 
4 
 
address this issue in his opening brief, arguing instead that his 2016 search warrant was 
altered.  He does not explain how that affects the timeliness of his claims. 
 Green also raised a false arrest claim under the Fourth Amendment stemming from 
his 2018 arrest.  He had to show that “the arrest was made without probable cause.”  
James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).  Green argues that there 
was no basis for his arrest because he lawfully possessed the drugs that police found.  
However, Green was charged with multiple offenses and ultimately pleaded guilty to one 
charge — possession of a prescription legend drug in violation of New Jersey law.    
Establishing probable cause on just one of multiple charges will defeat a claim of false 
arrest.  See Startzell v. City of Phila., 533 F.3d 183, 204 n.14 (3d Cir. 2008).  Summary 
judgment was thus appropriately granted for defendants on this claim.2 
Accordingly, we will affirm the judgment of the District Court.3 
 
 
2  Green does not address any other claims in his opening brief and has thus forfeited 
them.  See Wettach, 811 F.3d at 115.  To the extent that Green discusses any additional 
claims or other issues for the first time in his reply brief, we do not consider them.  See 
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146 (3d Cir. 2017). 
 
3  We grant Appellees’ motion to file a supplemental appendix with additional documents 
that were part of the District Court record.   


Marcel Green v. Irvington Police Department

USDC for the Middle District of Pennsylvani

USA v. Torey Dobbin

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-14-2025 
Gartor Brown v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Gartor Brown v. Attorney General United States of America" (2025). 2025 Decisions. 665. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/665 
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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. 24-1092 
   
 
 
GARTOR KIKI BROWN, 
Petitioner 
v. 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
 
       
On Petition for Review of an Order of the 
Board of Immigration Appeals 
(Agency No. A094-007-050) 
Immigration Judge: Kuyomars Golparvar 
       
 
 
Submitted under Third Circuit L.A.R. 34.1(a) 
on June 27, 2025 
 
Before: MONTGOMERY-REEVES, ROTH, AMBRO, Circuit Judges 
 
(Opinion filed: August 14, 2025) 
 
 
 
2 
___________ 
OPINION* 
___________ 
AMBRO, Circuit Judge 
An Immigration Judge (IJ) ordered Gartor Kiki Brown, of Liberia, removed in 2013. 
The Department of Homeland Security (DHS) later released her from its custody because 
it could not carry out her removal. Brown, however, never appealed that 2013 removal 
order. Nearly ten years later, DHS redetained her and began removal proceedings after she 
committed another crime. Brown moved to reopen her initial removal proceeding twice, 
once before a new IJ and again before the Board of Immigration Appeals (BIA), arguing 
that she was entitled to asylum and withholding of removal. She also moved the BIA to 
reopen her case sua sponte and to remand her case on the ground that she had been incom-
petent in 2013. The BIA did not abuse its discretion in denying any of those motions, and 
we lack jurisdiction to review the BIA’s decision denying Brown’s request to reopen sua 
sponte, so we will dismiss her petition in part and deny it in part. 
I. BACKGROUND 
A. An IJ Ordered Brown Removed in 2013. 
Brown arrived in the United States in September 1998 as a temporary visitor for 
pleasure. In March 2006, she became a lawful permanent resident under 8 U.S.C. § 1225. 
 
* This disposition is not an opinion of the full Court and under I.O.P. 5.7 is not binding 
precedent. 
 
3 
Nearly two years later, Brown was convicted of theft in Minnesota, and five years after 
that, of criminal trespass in Pennsylvania.  
After Brown’s second conviction, DHS brought removal proceedings against her. In 
its Notice to Appear (NTA), DHS charged her with removability for having been convicted 
of two crimes involving moral turpitude in violation of 8 U.S.C. § 1227(a)(2)(A)(ii), and 
having been convicted of an aggravated felony, id. § 1227(a)(2)(A)(iii). DHS issued three 
hearing notices to Brown, and she attended each hearing in person.  
The IJ overseeing those hearings determined that Brown was removable and ordered 
her removed from the country. She did not appeal that decision, and the order became final. 
See 8 U.S.C. § 1101(a)(47)(B)(ii). DHS nonetheless released Brown because it could not 
carry out her removal to Liberia.  
B. Brown Moved to Reopen for the First Time and an IJ Denied Her Motion. 
Because Brown continued to commit criminal offenses, DHS reinstated her removal 
and redetained her in 2021. In January 2023, she moved to reopen her removal proceedings 
so she could apply for asylum, withholding of removal, and protection under the Conven-
tion Against Torture. She argued that she would fear for her life if she returned to Liberia 
because she is a transgender woman, the daughter of a Liberian telecommunications bu-
reaucrat who fell out of favor with the government in 2018, and part of a disfavored ethnic 
minority.  
The IJ denied Brown’s motion to reopen as untimely. Although there is a timeliness 
exception for asylum claims, the movant must show a change in country conditions that 
 
4 
materially affects her asylum claim. 8 C.F.R. § 1003.23(b)(4)(i). The IJ found that Brown 
had failed to provide that evidence.  
C. Brown Appealed the IJ’s Order and Moved the BIA to Remand, Reconsider, 
and Reopen Again.  
After the IJ denied her motion to reopen, Brown filed a pro se appeal with the BIA. 
She then retained counsel, who filed a brief in support of the appeal, along with an inde-
pendent second motion to reopen. She also moved the BIA to reconsider the IJ’s order on 
the grounds that (1) her NTA was defective and (2) she was not removable as charged be-
cause an intervening Supreme Court case held that the federal criminal code’s definition of 
“crime of violence” was impermissibly vague. On top of her motions to reopen and recon-
sider, Brown sought to remand her case so an IJ could determine in the first instance 
whether she was mentally competent. And finally, Brown asked the BIA to reopen her case 
sua sponte.  
D. The BIA Affirmed the IJ’s Denial of Brown’s First Motion to Reopen and 
Denied Her Other Motions.  
The BIA dismissed Brown’s appeal, affirmed the IJ’s denial of her first motion to 
reopen, denied her second motion to reopen, denied her motion to reconsider, denied her 
motion to remand, and vacated the order staying her removal. According to the BIA, the 
first motion to reopen was untimely and the IJ correctly found that Brown had failed to 
demonstrate changed country conditions. The BIA also denied Brown’s second motion to 
reopen as time- and number-barred for the same reasons. The BIA next declined to consider 
Brown’s argument that she was not removable as charged on the ground that her Pennsyl-
vania criminal-trespass conviction was not a crime of violence after Sessions v. Dimaya, 
 
5 
584 U.S. 148 (2018). According to the BIA, that argument was time-barred and not subject 
to equitable tolling because Brown did not diligently pursue it.  
The BIA also denied Brown’s motion to remand. She requested remand for an IJ to 
conduct a mental competency hearing in the first instance as required by Matter of M-A-M-, 
25 I. & N. Dec. 474 (BIA 2011). The BIA observed that Brown pointed to no record 
evidence suggesting that she was incompetent. 
Finally, the BIA declined to reopen proceedings sua sponte because Brown’s claim 
did not present an “exceptional situation” that warranted its “extraordinary intervention.” 
AR 7.1 She timely petitioned us for review. 
II. JURISDICTION AND STANDARD OF REVIEW  
The BIA had jurisdiction under 8 C.F.R. §§ 1003.2, 1003.1(b)(2). We have jurisdic-
tion under 8 U.S.C. § 1252. We ordinarily lack jurisdiction when, as here, a petitioner 
challenges a final removal order on account of a covered criminal offense. 8 U.S.C. 
§ 1252(a)(2)(C). We retain jurisdiction, however, over petitions that raise constitutional 
claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). We also ordinarily lack jurisdiction 
to review the BIA’s refusal to reopen proceedings sua sponte. See Calle-Vujiles v. Ashcroft, 
320 F.3d 472, 474–75 (3d Cir. 2003). But there are exceptions when the BIA relied on an 
“incorrect legal premise” or violated a “settled course of adjudication.” Sang Goo Park v. 
Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017). 
 
1   “AR” refers to the administrative record, which is found at Dkt. No. 10.  
 
6 
We generally review the BIA’s orders denying a motion to reopen for abuse of dis-
cretion. INS v. Doherty, 502 U.S. 314, 323 (1992). But we give fresh review to its 
“determination of an underlying procedural due process claim,” Fadiga v. Att’y Gen., 488 
F.3d 142, 153 (3d Cir. 2007), and whether the BIA properly applied “the equitable tolling 
standard ‘to undisputed or established facts,’” Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d 
Cir. 2021) (citation omitted). Finally, we review the BIA’s underlying factual findings for 
substantial evidence. Tilija v. Att’y Gen., 930 F.3d 165, 170 (3d Cir. 2019).  
III. ANALYSIS 
A. The BIA Did Not Abuse Its Discretion in Affirming the IJ’s Denial of Brown’s 
First Motion to Reopen. 
A motion to reopen ordinarily must be filed within 90 days of the date of the final 
removal order that the noncitizen seeks to revisit. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. 
§§ 1003.2(c)(2), 1003.23. There is an exception, however, when a noncitizen files “an ap-
plication for asylum or withholding of removal” that is “based on changed country 
circumstances” and “supported by material evidence unavailable at the previous hearing.” 
Darby v. Att’y Gen., 1 F.4th 151, 160 (3d Cir. 2021) (citing Bamaca-Cifuentes v. Att’y Gen., 
870 F.3d 108, 111 (3d Cir. 2017)). The deadline can also be equitably tolled when a noncit-
izen “shows ‘(1) that he has been pursuing his rights diligently, and (2) that some 
extraordinary circumstance stood in his way’ and prevented timely filing.” Nkomo, 986 
F.3d at 272–73 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). 
Brown’s first motion failed to trigger the timeliness exception for asylum and with-
holding-of-removal claims because she included neither an application for that form of 
 
7 
relief nor evidence of changed country conditions. See 8 C.F.R. § 1003.23(b)(3). She did 
attach the United States Department of State Human Rights Reports for Liberia for 2017 
and 2019. But she did not provide evidence of conditions in 2012 and 2013, without which 
the IJ could not conduct a comparative analysis.  
Equitable tolling did not apply to Brown’s claims either because she was not diligent 
in moving to protect her rights. See Munchinski v. Wilson, 694 F.3d 308, 331 (3d Cir. 2012). 
She could have moved to reopen based on her change in gender identity or her father’s role 
in Liberian politics once those facts became available. Instead, Brown waited until she was 
ordered removed. That was not diligent. The BIA thus acted within its discretion in affirm-
ing the IJ’s order denying her first motion to reopen.  
B. The BIA Did Not Abuse Its Discretion in Denying Brown’s Second Motion to 
Reopen. 
Brown’s second motion to reopen raised the same asylum and withholding-of-re-
moval claims. But she also argued that the BIA abused its discretion in denying her motion 
because the NTA that triggered her initial removal proceeding lacked certain information 
and because she was not removable as charged. Again, the order she is challenging is from 
2013, so it is time-barred unless an exception applies or her claims were equitably tolled. 
Both arguments fail. 
 
8 
1. Brown’s withholding-of-removal claims are time-barred. 
Brown renewed her asylum and withholding-of-removal claims before the BIA, but 
with more detail. They still fail for the same reasons.2 
Gender identity. Brown still produced no evidence about the treatment of 
transgender women in Liberia in 2013 against which the BIA could compare the country’s 
current conditions. That she now identifies as a woman does not trigger the timeliness ex-
ception unless she can also identify a change in country conditions with respect to 
transgender rights. Liu v. Att’y Gen., 555 F.3d 145, 151 (3d Cir. 2009). 
Mandingo ethnicity. The BIA acted within its discretion in finding that Brown 
failed to submit evidence that conditions for those of Mandingo ethnicity have worsened 
since 2013. Indeed, the evidence of country conditions that Brown did submit indicates 
that Mandingos have been “discriminated against for years.” AR 6; see also Bamaca-
Cifuentes, 870 F.3d at 113 (BIA did not abuse its discretion in finding no changed country 
conditions when problems identified in application were “ongoing”).  
Liberian politics. The BIA also acted within its discretion in finding that Brown 
failed to establish that country conditions have changed because of her father’s role as 
Liberia’s telecommunications regulator. She produced evidence that her father was fired 
because he changed his views on a tax proposal, but none showing that he suffered political 
retribution or that she should expect to either.  
 
2  Brown argues for the first time before us that she would suffer persecution in Liberia be-
cause she is disabled. But she never exhausted this argument before the agency, so we 
cannot consider it. See 8 U.S.C. § 1252(d)(1).  
 
9 
2. Equitable tolling does not apply to Brown’s claims. 
The BIA was within its discretion in holding that equitable tolling did not apply to 
Brown’s renewed asylum claim in her second motion to reopen for the same reason it did 
not apply to her asylum claim in her first motion: she was not diligent in moving to protect 
her rights. See supra at 6–7. 
Brown’s argument that equitable tolling paused the clock on her claim that she is 
not removable as charged also fails. Recall that she was ordered removed under 8 U.S.C. 
§ 1227(a)(2)(A)(iii) because she was convicted of an aggravated felony as defined in 
8 U.S.C. § 1101(a)(43)(F), which includes crimes of violence as defined in 18 U.S.C. § 16. 
Brown now argues that the Supreme Court’s decision in Dimaya, which held that § 16(b) 
is unconstitutionally vague in the immigration context, retroactively applies to her. The 
record shows that Brown made no effort between 2013 and when DHS redetained her to 
hire a lawyer or otherwise pursue her rights. To be diligent, she must at least try to do so. 
See Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011). Here, she did nothing. That was 
not diligent either.  
3.  The purported deficiencies in Brown’s NTA do not justify reopening.  
Brown also argues that the NTA she received on September 17, 2013 was deficient 
because it did not contain the date of her hearing. See 8 U.S.C. § 1229(a)(1); Niz-Chavez 
v. Garland, 593 U.S. 155, 170 (2021). Section 1229 is “akin to a claims-processing rule.” 
Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 143 (3d Cir. 2021). The Supreme Court has held 
that “[n]o reasonable construction of [claim]-processing rules … would allow a litigant” to 
prevail when she objects to the claim-processing violation only “after [she] has litigated 
 
10 
and lost the case on the merits.” Kontrick v. Ryan, 540 U.S. 443, 460 (2004). Yet that is 
what happened here. Brown never raised these procedural objections during her initial re-
moval hearings, so she cannot litigate them now. 
C. The BIA Did Not Abuse Its Discretion in Denying Brown’s Motion to Remand. 
Brown moved the BIA to remand her case to an IJ for a mental competency hearing. 
Noncitizens in removal proceedings are presumed competent. M-A-M-, 25 I. & N. Dec. 
at 477. Absent “indicia of mental incompetency,” an IJ need not review a noncitizen’s com-
petency. Hernandez Garmendia v. Att’y Gen., 28 F.4th 476, 486 (3d Cir. 2022).  
The BIA here did not abuse its discretion in denying Brown’s motion to remand 
because there were no indicia of incompetency in the record. Brown submitted evidence 
that in 2023 she experienced “Post-Traumatic Stress Disorder,” “Transsexualism,” and 
“Unspecified Gender Dysphoria,” and that she was at risk for suicide. AR 70– 77. But she 
provided no evidence about her mental health in 2012 or 2013, which is when she argues 
the IJ should have considered her competency. See M-A-M-, 25 I. & N. Dec. at 480 
(“[M]ental competency is not a static condition … [and] can vary over time.”).  
D. We Lack Jurisdiction to Review the BIA’s Decision Not to Reopen Brown’s 
Case Sua Sponte. 
Brown next argues that the BIA abused its discretion by declining to reopen her case 
sua sponte. The BIA denied her motion because it found that she had failed to show an 
“exceptional situation[]” warranting reopening. AR 7. “If the reasoning given for a decision 
not to reopen sua sponte reflects an error of law, we have the power and responsibility to 
point out the problem, even though ultimately it is up to the [Board] to decide whether it 
 
11 
will exercise its discretion to reopen.” Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011) 
(italicization omitted). Although Brown invokes this exception, she does not identify the 
allegedly incorrect legal premise, so this argument fails. 
“[I]f an agency announces and follows—by rule or by settled course of adjudica-
tion—a general policy by which its exercise of discretion will be governed, that exercise 
may be reviewed for abuse” too. Sang Goo Park, 846 F.3d at 651 (quoting Calle-Vujiles v. 
Ashcroft, 320 F.3d 472 (3d Cir. 2003)). Brown argues that the BIA has “limited its own 
discretion through its ‘settled course’ of reopening cases sua sponte based on Sessions v. 
Dimaya.” Pet. Br. 59– 60 (italicization omitted). But she cites no authority for that propo-
sition, so this argument also fails as well. 
E. Brown’s Due-Process Arguments Are Unexhausted. 
Finally, Brown raises a bevy of due-process arguments for the first time in her peti-
tion for review. She claims that the IJ in her 2013 hearing violated her due-process rights 
by “abrogat[ing] his responsibility to ensure that [she] fully understood the removal pro-
ceedings,” failing to “advise [her] of her eligibility for relief from removal,” finding her 
removable, and failing to quash her NTA. Pet. Br. 25. But these first-time arguments are 
unexhausted and we cannot review them. See 8 U.S.C. § 1252(b)(4)(A); id. § 1252(d). 
Brown also claims that the second IJ violated her due-process rights by denying her 
first motion using a form order without “address[ing] the substance of [her] motion in any 
way.” Pet. Br. 26. But an IJ’s decision to grant or deny a motion to reopen is discretionary. 
Darby, 1 F.4th at 165. Because noncitizens “do not have a liberty or property interest in 
 
12 
discretionary relief,” Brown does not have a cognizable due-process interest in reopening. 
Id. 
Brown’s last due-process argument is that the BIA should have itself produced the 
transcript from her 2012–13 removal hearing so that it could evaluate her motion to re-
mand. She cites no authority, however, for her claim that it is the BIA’s responsibility to 
produce transcripts when a remand movant advances an incompetency claim for the first 
time in a motion to reopen nearly ten years later. This argument fails too fails. 
* * * 
The BIA did not abuse its discretion in holding that Brown’s (1) asylum and with-
holding-of-removal claims were time-barred, (2) claim that she is unremovable as charged 
was time-barred, (3) due-process claims were either time-barred or unexhausted, (4) claim 
that her NTA was deficient and untimely, and (5) motion for remand was unwarranted. And 
we lack jurisdiction to review the BIA’s decision not to reopen her removal proceedings 
sua sponte. We thus deny the petition in part and dismiss it in part.  


Gartor Brown v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-15-2025 
Allaeldin Elhattab v. Attorney General United States of America 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Allaeldin Elhattab v. Attorney General United States of America" (2025). 2025 Decisions. 670. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/670 
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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. 24-1482 
_________________ 
 
ALLAELDIN ELHATTAB, 
Petitioner 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
  ________________ 
On Petition for Review of a Decision of the   
Board of Immigration Appeals 
(BIA-1 : A075-872-143) 
Immigration Judge: Alberto J. Riefkohl 
________________ 
Submitted Under Third Circuit L.A.R. 34.1(a) 
December 5, 2024 
 
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges 
 
(Opinion filed: August 15, 2025)  
 
______________ 
 
OPINION* 
______________ 
 
McKEE, 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 
 
Allaeldin Elhattab petitions this Court for review of a Board of Immigration 
Appeals order denying his motion to reopen. For the following reasons, we will deny his 
petition.1  
I. 
“As a general rule, motions to reopen are granted only under compelling 
circumstances.”2 We review the BIA’s denial of a motion to reopen for abuse of 
discretion.3 The decision will be reversed only if it is arbitrary, irrational, or contrary to 
law.4  
Elhattab’s main contention on appeal is that the BIA abused its discretion in 
denying his motion to reopen. The BIA will not grant a motion to reopen unless the 
evidence offered was previously unavailable and could not have been discovered or 
presented at an earlier stage in the proceedings.5 Generally, a noncitizen may file 
one motion to reopen within ninety days of a removal order.6 
 
1 The BIA had jurisdiction over the motion to reopen under 8 C.F.R. § 1003.2(a). We 
generally have jurisdiction to review the denial of a motion to reopen under 8 U.S.C. § 
1252(a)(1) unless a jurisdiction-stripping provision under § 1252(a)(2) applies. See Khan 
v. Att’y Gen., 691 F.3d 488, 492 (3d Cir. 2012). Although § 1252(a)(2)(B) otherwise 
strips us of jurisdiction to review judgments regarding the sort of discretionary relief 
Elhattab seeks, because his challenge presents a question of law, Nkomo v. Att’y Gen., 
986 F.3d 268, 272 (3d Cir. 2021) (“Application of the equitable tolling standard to 
undisputed or established facts is a question of law.” (internal quotation marks and 
citation omitted)), we have jurisdiction to review the BIA’s order. § 1252(a)(2)(D). 
Because removal proceedings before the IJ were held in Newark, New Jersey, venue is 
proper in this Court. § 1252(b). 
2 Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).  
3 Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). 
4 Id.  
5 8 C.F.R. § 1003.2(c)(1). 
6 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i); § 1003.2(c)(2). 
3 
 
It is undisputed that Elhattab’s motion is facially time and number-barred because 
it is his fourth motion to reopen and filed more than fifteen years after the removal order 
issued. He therefore argues that the BIA should have equitably tolled the time and 
number limitations and erred in finding that equitable tolling was unwarranted. Equitable 
tolling generally requires a petitioner to show “(1) that he has been pursuing his rights 
diligently, and (2) that some extraordinary circumstance stood in his way” and prevented 
a proper filing.7 Elhattab cannot satisfy either requirement. 
Elhattab asserts that the BIA has an established policy of equitably tolling the 
motion deadline where there is a significant change in law. He claims that In re X-G-W-
was a change in law that created an extraordinary circumstance warranting equitable 
tolling. In In re X-G-W-, the BIA announced a new policy that allowed non-citizens to 
pursue untimely motions to reopen based on coercive population control policies.8 That 
decision was in response to Congress amending the definition of “refugee” under § 
601(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 
1996 (“IIRIRA”).9 The amendment was enacted to recognize that a person persecuted 
under a coercive population control program has been persecuted on account of political 
opinion.10 This policy remained in effect for four years until the BIA, in In re G-C-L-, 
 
7 Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted) 
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Alzaarir v. Att’y Gen., 
639 F.3d 86, 90 (3d Cir. 2011) (“The time limit for filing a motion to reopen is subject to 
equitable tolling, and perhaps the numerical limit is as well.”). 
8 See 22 I. & N. Dec. 71, 74 (B.I.A. 1998). 
9 See id at 72. 
10 See id. 
4 
 
declared it no longer considers untimely motions to reopen based upon In re X-G-W-.11 
Elhattab has never asserted any such claim of persecution, and in any event, the policy 
was rescinded years ago. Moreover, In re X-G-W- involved the BIA’s exercise of its 
discretionary authority to reopen a proceeding sua sponte,12 which the BIA expressly 
declined to do here—a decision which this Court lacks jurisdiction to review.13 
Similarly, Elhattab claims that the BIA should have equitably tolled the limitations 
based on the Supreme Court’s decisions in Pereira v. Sessions14 and Niz-Chavez v. 
Garland.15 In Pereira, the Supreme Court held that a Notice to Appear (“NTA”) must 
include the date and place of a removal hearing to trigger the “stop-time rule” for 
cancellation of removal.16 Niz-Chavez further held that a subsequent notice specifying the 
date and place of a hearing does not cure a defective NTA.17 Elhattab’s NTA did not 
include the date or time of his removal hearing. However, Elhattab offers no explanation 
for why he failed to raise any argument before the BIA based on Niz-Chavez until 150 
days after the decision was issued—60 days beyond the 90-day deadline imposed by 8 
U.S.C. § 1229a(c)(7)(C).18 More significantly, he offers no explanation for why he 
waited nearly a year and nine months after this Court’s decision in Guadalupe v. Attorney 
 
11 See In re G-C-L-, 23 I. & N. Dec. 359, 361–62 (B.I.A. 2002).  
12 22 I. & N. Dec. at 73. 
13 See Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021). 
14 585 U.S. 198 (2018). 
15 593 U.S. 155 (2021). 
16 Pereira, 585 U.S. at 209. 
17 Niz-Chavez, 593 U.S. at 171-72. 
18 See Niz-Chavez, 593 U.S. 155. 
5 
 
General, which established the binding rule as Niz-Chavez in this Circuit.19 Absent such 
an explanation, these limitations cannot be equitably tolled.20 
Finally, Elhattab argues that the BIA committed error by failing to consider the 
record as a whole in reaching a due diligence finding. The BIA, however, is entitled to a 
“presumption of regularity.”21 The petitioner bears the burden of proof that the BIA did 
not review the record when it considered the appeal.22 In this case, fifteen years have 
elapsed since he was ordered removed and Elhattab has not come close to overcoming 
that presumption. The BIA thus did not abuse its discretion in declining to equitably toll 
the limitations for his fourth untimely motion to reopen.  
II. 
For the foregoing reasons, we will deny the petition. 
 
19 951 F.3d 161, 162 (3d Cir. 2020). 
20 See Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005) (holding that failure to 
seek relief for over year does not demonstrate diligence necessary to apply equitable 
tolling). 
21 Darby v. Att’y Gen., 1 F.4th 151, 166 (3d Cir. 2021) (quoting Abdulai v. Ashcroft, 239 
F.3d 542, 550 (3d Cir. 2001)). 
22 See Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir. 2005). 


Allaeldin Elhattab v. Attorney General United States of America

Rolando Muniz v. USA

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-18-2025 
Stephanie Ricketts v. Titusville Area School District 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Stephanie Ricketts v. Titusville Area School District" (2025). 2025 Decisions. 677. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/677 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-2569 
_______________ 
STEPHANIE RICKETTS, as parent of L.G., a minor, 
    Appellant 
v. 
TITUSVILLE AREA SCHOOL DISTRICT; ROCHELLE CRESSMAN 
_______________ 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. No. 1:21-cv-00129) 
District Judge: Honorable Susan Paradise Baxter 
_______________ 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
April 28, 2025 
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES, Circuit Judges 
(Filed:  August 18, 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 
 
KRAUSE, Circuit Judge. 
Sometimes, despite diligent efforts, school administrators are not able to protect a 
student from harm.  Despite such efforts here, administrators from the Titusville Area 
School District (District) failed to protect one of their students, L.G., from sexual assault 
by a teacher.  The circumstances are tragic, but because the District’s response neither 
rises to the level of deliberate indifference nor shocks the conscience, we will affirm the 
District Court’s grant of summary judgment in favor of the District. 
I. BACKGROUND 
In the fall of 2018, Rochelle Cressman, a gym teacher at Titusville Middle School 
and a close family friend of appellant Stephanie Ricketts, began sexually abusing 
Ricketts’s son, L.G., as he was starting eighth grade.  Rumors of a relationship between 
L.G. and Cressman prompted the District to take steps to limit Cressman’s access to L.G. 
pending investigations by the District, Children and Youth Services (CYS), and the 
District Attorney’s office.  When each of these investigations failed to turn up evidence 
of an inappropriate relationship, and with the consent of L.G.’s mother, Stephanie 
Ricketts, the District lifted its restrictions and permitted Cressman to spend time alone 
with L.G.  In May 2019, as the school year came to a close, evidence of Cressman’s 
sexual relationship with L.G. came to light and Cressman was ultimately convicted of 
three counts of statutory sexual assault and sentenced to 5-10 years’ imprisonment.   
In the civil action that gives rise to this appeal, Ms. Ricketts filed a complaint 
against the District alleging a Fourteenth Amendment failure to protect claim and a state-
created danger claim under 42 U.S.C. § 1983.  The District Court granted summary 
3 
 
judgment against her, and this appeal followed. 
II. DISCUSSION1 
To prevail on a failure-to-protect claim against a school district based on a 
teacher’s sexual abuse of a student, a plaintiff must show that the district’s policy, 
practice, or custom played an affirmative role in bringing about the sexual abuse and that 
the district acted with “deliberate indifference” to that abuse.  See Black ex rel. Black v. 
Indiana Area Sch. Dist., 985 F.2d 707, 712 (3d Cir. 1993).  To establish deliberate 
indifference, a plaintiff must show “something more culpable on the part of the officials 
than a negligent failure to recognize the high risk” of harm.  Colburn v. Upper Darby 
Twp., 946 F.2d 1017, 1025 (3d Cir. 1991).  She must show that officials had knowledge 
of either actual past abuse or a substantial risk of future abuse.  See Johnson v. Elk Lake 
Sch. Dist., 283 F.3d 138, 144 n.1 (3d Cir. 2002); Bielevicz v. Dubinon, 915 F.2d 845, 851 
(3d Cir. 1990).  Mere suspicion or rumors of abuse are insufficient.  See Johnson, 283 
F.3d at 144 n.1.   
That high threshold is not met here.  It is undisputed that the District had no 
knowledge of any past abuse by Cressman.  And once the District became aware of facts 
and rumors that suggested the possibility of an inappropriate relationship between 
Cressman and L.G., it took prompt action by reporting Cressman’s behavior to CYS, 
conducting its own investigation under Title IX, and limiting Cressman’s contact with 
 
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343 and we have 
jurisdiction under 28 U.S.C. § 1291.  We review de novo the District Court’s order 
granting summary judgment.  Lomando v. United States, 667 F.3d 363, 371 (3d Cir. 
2011). 
4 
 
L.G. and other students.  That investigation, along with those conducted by CYS and the 
District Attorney’s office, did not find evidence of abuse and concluded that the rumors 
of an inappropriate relationship were unfounded.  Throughout this time, L.G. denied any 
sexual contact with Cressman, and his family, including Ms. Ricketts, insisted that 
Cressman was simply a close family friend.  It was only after these investigations were 
completed, and with Ms. Ricketts’s consent, that the District permitted Cressman again to 
spend time alone with L.G.   
On this record, we agree with the District Court that no rational jury could find 
that the District had knowledge of either past abuse or a substantial risk of future abuse 
before May 2019.  See Black, 985 F.2d at 712–13.  Ms. Ricketts urges that, 
notwithstanding the results of the investigations, the District knew of a risk of harm to 
L.G. based on District Superintendent Karen Jez’s statements that she believed that the 
investigations had been mistaken and that Cressman’s relationship with L.G. was 
inappropriate.  But Superintendent Jez’s beliefs were based on suspicion, not facts or 
evidence, and thus cannot satisfy the knowledge requirement for deliberate indifference.2  
See Johnson, 283 F.3d at 144 n.1. 
Ms. Ricketts’s state-created-danger claim fails for similar reasons.  To prevail on a 
state-created danger claim, a plaintiff must prove, among other things, that “a state actor 
 
2 Because we hold that the District was not deliberately indifferent, we need not consider 
whether its policy, practice, or custom played an affirmative role in bringing about the 
abuse.  See Black ex rel. Black v. Indiana Area Sch. Dist., 985 F.2d 707, 712 (3d Cir. 
1993). 
 
5 
 
acted with a degree of culpability that shocks the conscience.”  Bright v. Westmoreland 
County, 443 F.3d 276, 281 (3d Cir. 2006).  Although “[t]he exact degree of wrongfulness 
necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a 
particular case,” Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999), a 
plaintiff must generally show either deliberate indifference, gross negligence that shocks 
the conscience, or actual intent to harm, see Phillips v. County of Allegheny, 515 F.3d 
224, 241 (3d Cir. 2008).  Here, as discussed above, the District’s conduct did not amount 
to deliberate indifference, its prompt response to the rumors of abuse and conduct 
following the investigations does not shock the conscience, and there is no evidence that 
the District intended to harm L.G.  In short, the District Court did not err in holding that 
no rational jury could find that the District acted with the degree of culpability required 
for a state-created danger claim.  
III. CONCLUSION 
For the foregoing reasons, we will affirm the District Court’s judgment. 


Stephanie Ricketts v. Titusville Area School District

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-19-2025 
USA v. Lukner Rene 
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Recommended Citation 
"USA v. Lukner Rene" (2025). 2025 Decisions. 681. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/681 
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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. 24-1528 
   
 
UNITED STATES OF AMERICA, 
 
    v. 
 
LUKNER RENE, 
   Appellant 
         
 
Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
 (District Court No. 2:09-cr-00060-001) 
District Judge: Honorable Kai N. Scott 
       
Submitted under Third Circuit L.A.R. 34.1(a) 
June 27, 2025 
 
Before: MONTGOMERY-REEVES, ROTH, and AMBRO, Circuit Judges 
 
(Opinion filed: August 4, 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 
 
AMBRO, Circuit Judge  
 Lukner Rene appeals from his resentencing, contending that the District Court did 
not adequately incorporate the Sentencing Guidelines, his history and characteristics, the 
sentences of his co-defendants, and his motion for a downward variance. But the Court 
indeed considered these factors, plus it gave sound reasons for departing from the 
Guidelines. Because the latter sentence meets the standard for substantive reasonableness, 
evincing no abuse of discretion by the District Court, we affirm. 
I 
 In 2010, Rene pled guilty to one count of conspiracy to commit robbery; six 
counts of Hobbs Act robbery and aiding and abetting it, in violation of 18 U.S.C. §§ 1951 
and 2; and two counts of carrying and using a firearm during a crime of violence. These 
offenses involved armed robberies of fast-food restaurants in and around Philadelphia. 
The presentence report (PSR) calculated a Guideline range of 514 to 546 months. The 
Court imposed a term of 240 months. 
 The sentencing, however, involved complications that muddy the waters: a 
Guideline-calculation error and a change of law prompting resentencing.  But these do 
not change our opinion of the District Court’s reasonableness at the resentencing stage. 
First, the Probation Office miscalculated the Guideline range at Rene’s initial 
sentencing. The parties agreed that Rene’s total offense level was 27 and that he fell into 
criminal history category I. However, the PSR applied the range for an offender in 
criminal history category VI, and neither the parties nor the Court caught the error. The 
proper range would have been 454 to 471 months. 
3 
 
 Second, a change in jurisprudence required a reconsideration of Rene’s 
convictions after he had served some 13 years in prison. The Government and defense 
filed a joint motion for resentencing after United States v. Taylor, 596 U.S. 845, 851 
(2022), established that attempted Hobbs Act robbery is not necessarily a crime of 
violence. Rene had been convicted of two counts under 18 U.S.C. § 924(c) for using or 
carrying a firearm during or in relation to a crime of violence, predicated on his Hobbs 
Act robbery charges—one of which was a completed robbery and the other an attempt. 
Post Taylor, attempted Hobbs Act robbery does not qualify as a § 924(c) predicate 
offense. 596 U.S. at 860. The District Court granted the motion and vacated the count 
that corresponded to Rene’s attempted robbery. 
 At the resentencing, the Government urged the Court to eschew the categorical 
approach from Taylor’s asserting that even if attempted Hobbs Act robberies do not 
necessarily entail violence, Rene’s attempt offense did. And Rene had avoided four 
additional § 924(c) charges, stemming from actual rather than attempted robberies, that 
the Government dropped at the initial sentencing pursuant to a plea agreement. So, in the 
Government’s view, it was “pure happenstance” that the Taylor-invalidated charge, the 
only one derived from attempted robbery, was one that remained. Gov’t. Br. 10–11. 
The District Court resentenced Rene in March 2024. A supplemental presentence 
investigation report prepared by the Probation Office calculated a new Guideline range of 
162 to 181 months, based upon Rene’s revised, post-Taylor total offense level and (now 
accurate) criminal history category. The Government argued for reinstatement of the 240-
month sentence, citing Rene’s numerous disciplinary infractions while in prison, the 
4 
 
reduction already created by the dismissed counts, and the shortcomings of the 
categorical approach here. 
Counsel for Rene discussed the miscalculation underlying his original sentence 
and said that the 240-month sentence had been a 53% reduction from the bottom of the 
incorrect Guideline range. She noted that a 53% reduction from the corrected, pre-Taylor 
Guideline range would have yielded a sentence of 212 months instead. To defense 
counsel, that should be the starting point for a further downward variance, based on 
Rene’s program accomplishments in prison, strong family support, and that he was only 
18 years old at the time of conviction. 
But the Court emphasized the 75 disciplinary infractions that Rene received during 
his recent years in prison. It alighted on the defense counsel’s calculation and imposed a 
212-month sentence. Rene now appeals that ruling, arguing substantive 
unreasonableness.  
II1 
 Rene argues on appeal that the upward variance at the resentencing was 
substantively unreasonable. We disagree. 
 We review the substantive reasonableness of a sentence under an abuse-of-
discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 
If a sentence is procedurally sound, as all agree was the case here, we presume it to be 
substantively reasonable “unless no reasonable sentencing court would have imposed the 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 
5 
 
same sentence on that particular defendant for the reasons the [D]istrict [C]ourt 
provided.” Id. at 568. We evaluate substantive reasonableness by considering whether the 
District Court rationally and meaningfully considered the factors listed in 18 U.S.C. 
§ 3553(a). United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). There is no 
presumption of unreasonableness if a sentence is outside the Guideline range; it is within 
the District Court’s discretion to depart from it. Gall v. United States, 552 U.S. 38, 51 
(2007).  
 Rene preserved the issue of his sentence’s reasonableness by arguing for a lower 
sentence before the District Court. See United States v. Flores-Mejia, 759 F.3d 253, 256 
(3d Cir. 2014) (en banc); Grier, 475 F.3d at 571 n.11. On appeal, he argues that the 
upward variance was substantively unreasonable because it “fail[ed] to reflect the defense 
motion for a downward variance, the history and characteristics of the defendant, and 
[the] consideration of the . . . Guideline range.” Rene Br. 17.  
But the sentencing transcript shows that the District Court discussed and applied 
each of these factors. Even after considering the defense’s motion for a downward 
variance and the new Guideline range, the Court emphasized Rene’s disciplinary 
infractions in prison as a reason for its revised sentence. It discussed Rene’s youth at the 
time of his offense, his educational achievements and program participation while 
incarcerated, and the difficulties and dangers he faces in prison—all concerns emphasized 
by the defense in its brief. But the Court observed that Rene came into his resentencing in 
an even worse position than at the first sentencing, given the long trail of disciplinary 
infractions dating even to the year before the resentencing hearing. It considered the 
6 
 
updated Guideline range of 162 to 181 months, which neither the Government nor Rene 
had disputed. Because Rene had already served 183 months at the time of the hearing, 
comporting with the Guidelines would essentially mean an immediate release. The Court 
was unwilling to be so lenient nor to ratchet the sentence up as far as the Government’s 
requested 240 months. It chose the 212-month sentence mentioned by Rene’s counsel—
the initial Guideline sentence she contended it would have been without the calculation 
error—as an appropriate middle ground. 
 Rene also argues that departing from the updated Guideline range leads to 
“unwanted disparities.” Rene Br. 4. We have held that a “[d]isparity [in] sentence[s] 
between co-defendants does not of itself show an abuse of discretion.” United States v. 
Cifuentes, 863 F.2d 1149, 1156 n.5 (3d Cir. 1988). The § 3553(a) factors facilitate similar 
treatment of similarly situated defendants across the nation, but do not compel 
“uniformity among co-defendants in the same case.” United States v. Parker, 462 F.3d 
273, 277 (3d Cir. 2006). The District Court here discussed its obligation to avoid 
sentencing disparities amongst defendants with similar conduct and records and used that 
principle to inform its decision. Even if its sentence were “significantly outside the 
Guidelines range,” our Court must review it under a “deferential” abuse-of-discretion 
standard. Gall, 552 U.S. at 41. The District Court’s decision clears Tomko’s low bar: we 
cannot conclude that no reasonable court would act as it did. 562 F.3d at 568.  
* * * 
We do not “find that a district court’s failure to give mitigating factors the weight 
a defendant contends they deserve renders the sentence unreasonable.” United States v. 
7 
 
Bungar, 478 F.3d 540, 546 (3d Cir. 2007). We look for a “reasoned and rational 
justification for a sentence.” Grier, 475 F.3d at 572. Though Rene disagrees with his 
sentence, we conclude that the Court considered his variance motion and history and 
personal circumstances, along with the correct Guideline calculation and his co-
defendants’ sentences. Its ruling was justified for the reasons it cited. Because the Court 
acted within its discretion, we affirm. 


USA v. Lukner Rene

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-20-2025 
Andrew Fields v. BOP 
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Recommended Citation 
"Andrew Fields v. BOP" (2025). 2025 Decisions. 684. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/684 
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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. 24-2329 
__________ 
 
ANDREW FIELDS, 
   Appellant 
 
v. 
 
FEDERAL BUREAU OF PRISONS; WARDEN BRADLEY; A. W. ECKHART; JOHN 
DOE, Custody Warden; JOHN DOE, Captain; LIEUTENANT C. FRISK; S.O.S. C. 
HEENAN; S.O.S. J. VODA; S.O.S. J. SCHWARTZ; S.O.S. A. BURGH; S.O.S. 
OFFICER ROLLISON; S.O.S. OFFICER P. MILLER; UNIT MANAGER FRIES; 
COUNSELOR T. OLIVER; OFFICER DEFEBO; S.O.S. Officer John Doe; S.O.S. 
Officer Jane Doe; S.O.S. OFFICER SICLARI; OFFICER OBLOSHNY 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 3:21-cv-01038) 
District Judge: Honorable Malachy E. Mannion 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 11, 2025 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed August 20, 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 
 Pro se appellant Andrew Fields appeals the District Court’s order granting 
summary judgment. We will affirm.  
 Fields, a federal prisoner, filed a civil-rights complaint pursuant to Bivens v. Six 
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging 
that he was mistreated at the United States Penitentiary, Canaan. He asserted that he was 
transferred to Canaan in retaliation for filing prior civil complaints. Shortly after his 
arrival there, Fields was placed in the Special Housing Unit while under investigation for 
having a history of engaging in sexual acts. According to Fields’s complaint, his 
belongings, including his bed, mattress, sheets, blankets, and personal papers, were 
frequently confiscated from his cell, which was “freezing cold.” Fields claimed that on at 
least one occasion, the prison officers placed him in paper clothing when his cell was 
below zero degrees. He also claimed that his corrections counselor refused to visit him 
and failed to provide him with grievance forms and legal papers. 
 After two months in the Special Housing Unit, Fields returned to the general 
population. There, he alleged, he was denied phone calls, and funds were wrongfully 
deducted from his inmate trust fund account. Fields also described incidents where 
inmates beat and stabbed him, and where, on another occasion, prison officers banged his 
head into a wall, and punched, kicked, and stomped on him while he was in handcuffs. 
Fields eventually returned to the Special Housing Unit, where, he claimed, the prison 
 
3 
 
employees intentionally placed him in a cell with an inmate affiliated with a rival gang. 
According to Fields, the prison officers continued to confiscate his personal belongings, 
deny him access to the law library and mail, and instigate fights between him and other 
inmates. 
Liberally construed, Fields’s complaint alleged that the prison employees: 
1) interfered with his access to courts and retaliated against him in violation of the First 
Amendment; 2) discriminated against him based on his sexual history, unlawfully 
confined him in the Special Housing Unit, and deprived him of his property in violation 
of the Fifth Amendment; and 3) used excessive force, failed to protect him from inmate 
assault, and subjected him to harsh confinement conditions in violation of the Eighth 
Amendment. Fields sought monetary damages.1 
The defendants moved to dismiss and for summary judgment, arguing that Fields 
failed to exhaust his administrative remedies, that Fields had no Bivens remedy, that the 
Bureau of Prisons was entitled to sovereign immunity, and that Fields failed to file an 
administrative tort claim, as required under the Federal Tort Claims Act (“FTCA”). The 
District Court granted summary judgment in the defendants’ favor, determining that 
Fields failed to exhaust his administrative remedies. Fields appealed.  
 
1 To the extent that Fields sought release from custody, such relief is not available in a 
civil-rights action. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 
 
4 
 
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the 
District Court’s summary judgment ruling. See Blunt v. Lower Merion Sch. Dist., 767 
F.3d 247, 265 (3d Cir. 2014). We may affirm the “judgment on any basis supported by 
the record.” United States ex rel. Spay v. CVS Caremark Corp., 875 F.3d 746, 753 (3d 
Cir. 2017). Here, we will affirm the District Court’s judgment because, even assuming 
that administrative remedies were not available to Fields, he failed to state a claim for 
relief under Bivens.2 See 42 U.S.C. § 1997e(c)(2).  
The Supreme Court recognizes a Bivens cause of action to redress constitutional 
violations by federal officers in three limited contexts: 1) under the Fourth Amendment 
for an unreasonable search and seizure of a residence, see Bivens, 403 U.S. at 397; 
2) under the Fifth Amendment Due Process Clause for sex discrimination, see Davis v. 
Passman, 442 U.S. 228, 248–49 (1979); and 3) under the Eighth Amendment for failure 
to provide adequate medical treatment to a prisoner, see Carlson v. Green, 446 U.S. 14, 
19 (1980). See Egbert v. Boule, 596 U.S. 482, 490–91 (2022). But further expanding the 
Bivens remedy is “disfavored.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). Thus, to 
determine whether a Bivens claim may proceed, a court first considers “whether the case 
presents a new Bivens context—i.e., is it meaningfully different from the three cases in 
which the Court has implied a damages action.” Egbert, 596 U.S. at 492 (citation 
 
2 Fields has forfeited any argument that he had a remedy under the FTCA. See In re 
Wettach, 811 F.3d 99, 115 (3d Cir. 2016).  
 
5 
 
modified) (quoting Ziglar, 582 U.S. at 139). If the context is new, a Bivens remedy is not 
available “if there are special factors indicating that the Judiciary is at least arguably less 
equipped than Congress to weigh the costs and benefits of allowing a damages action to 
proceed.” Id. (citation modified) (quoting Ziglar, 582 U.S. at 136). “Any special 
factor—even one—suffices to foreclose a new Bivens cause of action.” Fisher v. 
Hollingsworth, 115 F.4th 197, 207 (3d Cir. 2024). 
“For the past 45 years, [the Supreme Court] has consistently declined to extend 
Bivens to new contexts.” Goldey v. Fields, No. 24-809, 2025 WL 1787625, at *2 (U.S. 
June 30, 2025) (per curiam) (declining to recognize a Bivens claim for excessive force in 
violation of the Eighth Amendment); see also Egbert, 596 U.S. at 498–99 (rejecting a 
Bivens cause of action for a First Amendment retaliation claim). So have we. See, e.g., 
Fisher, 115 F.4th at 206–08 (no Bivens remedy against federal officials who fail to 
prevent inmate-on-inmate assault); Xi v. Haugen, 68 F.4th 824, 835–37 (3d Cir. 2023) 
(no Bivens remedy for racial discrimination in violation of the Fifth Amendment); Kalu 
v. Spaulding, 113 F.4th 311, 337–40 (3d Cir. 2024) (no Bivens remedy for Eighth 
Amendment conditions-of-confinement claim).  
Here, all of Fields’s claims present new Bivens contexts—they each differ “in a 
meaningful way” from Bivens, Carlson, and Davis. Ziglar, 582 U.S. at 139. Furthermore, 
“special factors” counsel against extending the Bivens remedy to Fields’s claims. For 
one, “Congress has actively legislated in the area of prisoner litigation but has not 
 
6 
 
enacted a statutory cause of action for money damages.” Fields, 2025 WL 1787625, at 
*2. Furthermore, “[e]xtending Bivens to alleged First Amendment violations would pose 
an acute risk of increasing [litigation] costs.” Egbert, 596 U.S. at 499. And extending 
Bivens to allow Eighth Amendment claims for excessive force, confinement conditions, 
and failure to protect would substantially burden prison operations. See Fields, 2025 WL 
1787625, at *2; Kalu, 113 F.4th at 339; Fisher, 115 F.4th at 207–08. Judicially 
recognizing Fields’s due process claims would similarly deprive the prison employees of 
the “wide-ranging deference they need to preserve order and maintain security.” Fisher, 
115 F.4th at 208; see also Mays v. Smith, 70 F.4th 198, 206 (4th Cir. 2023). 
Finally, the existence of an alternative remedial structure also counsels against 
extending Bivens, even if we assume that prison employees did not afford Fields 
adequate opportunities to utilize the prison’s grievance system. See Fields, 2025 WL 
1787625, at *2; see also Egbert, 596 U.S. at 497–98 (“[W]e have never held that a Bivens 
alternative must afford rights to participation or appeal.”). In the “special factors” 
analysis, “the focus is not on the individual’s recovery at all[,]” but rather on the fact that 
Congress created a remedial process that it found sufficient to deter unconstitutional 
action against prisoners. Xi, 68 F.4th at 837.  
Accordingly, we decline to recognize a Bivens remedy for any of Fields’s claims, 
and we will affirm the District Court’s judgment in favor of the defendants. 


Andrew Fields v. BOP

Estate of John Schroeder, by and through Dawn Tuck v. Port Authority Transit Corp

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-26-2025 
Rashonna Ransom v. GreatPlains Finance LLC 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Rashonna Ransom v. GreatPlains Finance LLC" (2025). 2025 Decisions. 706. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/706 
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 
 
 
No. 24-1908  
 
RASHONNA M. RANSOM, on behalf of herself and others similarly situated 
 
v. 
 
GREATPLAINS FINANCE, LLC, doing business as 
Cash Advance Now; JOHN DOES 1-10 
 
          GreatPlains Finance, LLC, 
                                                 Appellant  
 
(D.N.J. No. 2:22-cv-01344) 
 
To:  Clerk 
 
1. Motion by Appellee to Amend Opinion to Correct Counsel 
 
 
_________________________________ORDER________________________________
The foregoing motion is granted at the direction of the Court.  The opinion will be 
amended contemporaneously with this order.  As the changes to the opinion are clerical 
in nature, the judgment is unaffected and remains as originally filed. 
 
 
 
For the Court, 
 
 
s/ Patricia S. Dodszuweit 
Clerk 
 
Dated: August 26, 2025 
CJG/cc:  Daniel Baczynski, Esq. 
  Mark H. Jensen, Esq. 
  Yongmoon Kim, Esq. 
  Adam H. Charnes, Esq. 
  Mark H. Reeves, Esq. 
  Rob R. Smith, Esq. 
  Stephen R. Ward, Esq. 
 
 


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