Juan Wiggins v. WILLIAM F. LOGAN; JOHN DOE, In Their Individual and Official Positions, a/k/a DEUCE K-9

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3102
___________
JUAN WIGGINS,
Appellant
v.
WILLIAM F. LOGAN; JOHN DOE, In Their Individual
and Official Positions, a/k/a DEUCE K-9
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No.06-cv-05845)
District Judge: Honorable Joseph H. Rodriguez
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 4, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion Filed: September 15, 2009)
_________
OPINION
_________
PER CURIAM

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The dismissal without prejudice for failure to serve was a final order. See Welch v.1
(continued...)
2
Juan Wiggins appeals pro se from an order of the District Court dismissing his
complaint. We will affirm.
I.
In 2000, Wiggins filed suit under 42 U.S.C. § 1983 against William F. Logan, an
Atlantic City police officer, and his canine partner, K-9 Agent “Deuce.” (D.N.J. Civ. No.
00-cv-05281.) Wiggins alleged that Logan ordered Deuce to bite him during an arrest
even though he had surrendered. The District Court granted Wiggins’s motion for leave
to proceed in forma pauperis and directed the United States Marshal to serve the summons
and complaint. See 28 U.S.C. § 1915(d). The copy of Logan’s summons delivered to the
United States Marshal bore the last name “Hogan” instead of “Logan,” a mistake that
Wiggins attributes to “a district court clerk.” When the Marshal attempted to serve the
complaint at the Atlantic City Police Department, he apparently was told that there was no
one there by the name of “Hogan,” and he filed returns of service unexecuted on January
2, 2001.
Wiggins took no further action and, eight months later, the District Court dismissed
the action without prejudice under Rules 4(m) and 41(b) for failure to effect service.
Wiggins appealed. On June 4, 2002, we dismissed his appeal for failure to prosecute, and
we later denied his subsequent motion to reopen (thus, we did not, as the District Court
later wrote and as Logan states in his brief, “affirm”). (C.A. No. 02-1985.)1

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(...continued)1
Folsom, 925 F.2d 666, 668 (3d Cir. 1991). On September 27, 2002, after we dismissed
his appeal, Wiggins purported to file an amended complaint in the dismissed New Jersey
action. The docket reflects no further activity in that case. Wiggins raises no issue
regarding that amended complaint on appeal, but we note that the filing of the amended
complaint did not cure the basis on which the District Court dismissed Wiggins’s initial
complaint (i.e., failure to serve).
3
Wiggins was incarcerated when he filed his complaint in 2000, but he was released
in November 2002. In December 2006, he filed the complaint at issue here. Wiggins
again named Logan and Deuce as defendants, and repeated his allegations that Logan had
ordered Deuce to bite him. The only claim he asserted, however, was one that Logan had
fraudulently refused to accept service of the 2000 complaint and thereby denied him
access to the courts in violation of the Fourteenth Amendment. Wiggins asserts in his
complaint that Logan refused service by “den[ying] ever working at the dog training
facility” and by having “individuals give[] false information to the courts” about
“defendants[’] whereabouts.” He also alleges that, in April 2005, he happened upon a
newspaper article with a picture of an officer he recognized. When he asked someone to
read the article to him, he “discovered” that the officer was Logan and that Logan worked
with Deuce. (Wiggins does not allege the significance of this discovery, but it apparently
confirmed for him that Logan and Deuce were indeed the officer and dog he had intended
to sue and the Marshal had attempted to serve.)
This time, the Marshal was able to serve the complaint, and Logan filed an answer.
Logan later filed a motion to dismiss, purportedly under Rule 12(b)(6), which is how the

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Logan could not file a motion under Rule 12(b)(6) because he already had answered2
Wiggins’s complaint. See Fed. R. Civ. P. 12(b). Thus, the District Court should have
treated the motion as a motion for judgment on the pleadings under Rule 12(c). That error
was harmless, however, because our disposition turns solely on an issue of law.
We have jurisdiction under 28 U.S.C. § 1291. Our review of legal issues is plenary3
whether the District Court dismisses a complaint under Rule 12(b)(6), see Phillips v.
County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008), or enters judgment under Rule
12(c), see Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002). We review decisions to
decline to exercise supplemental jurisdiction for abuse of discretion. See Figueroa v.
Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir. 1999).
4
District Court treated it. The District Court granted the motion by order entered June 25,2
2008. The District Court construed Wiggins’s complaint to reassert a claim based on the
2000 dog bite incident and to assert an additional claim based on Logan’s alleged refusal
to accept service. The District Court dismissed the dog bite claim under the statute of
limitations. It also concluded that Logan’s alleged refusal to accept service did not state a
federal claim. Instead, it concluded that the claim arose under state law, and it declined to
exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). Wiggins filed a notice
of appeal. The District Court later entered an order on July 15, 2008, clarifying that it was
also dismissing Wiggins’s claims against Deuce and any “John Doe” defendants.
Wiggins then filed a “motion for certificate of probable cause” expressing his intention to
appeal that order as well.3
II.
The only argument that Wiggins raises on appeal is that the District Court erred in
applying the statute of limitations because it assumed that he was asserting his original

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5
claim based on the 2000 dog bite incident. Wiggins insists instead that the only claim he
intended to assert was a Fourteenth Amendment claim based on Logan’s allegedly-
fraudulent refusal to accept service of his original complaint. Thus, even if the District
Court properly construed Wiggins’s complaint to reassert his underlying dog bite claim,
Wiggins has clearly abandoned it on appeal. Accordingly, we do not reach the issue of
whether the District Court properly dismissed it under the statute of limitations.
That leaves Wiggins’s claim regarding Logan’s refusal to accept service. The
District Court was properly troubled by these circumstances. As the District Court noted,
the failure of the Atlantic City Police Department to accept service of the 2000 complaint
may be “questionable” because the summons addressed to “Hogan” and identifying him
as an officer in the K-9 unit, together with a separate summons addressed to K-9 office
“Decue” [sic], likely should have alerted the Department that the summons for “Hogan”
was intended for “Logan.” Moreover, Wiggins attributes the misspelling to the District
Court, which was required to effect service, and his potentially-valid claim of excessive
force was dismissed solely because the Marshal failed to do so. Thus, we share the
District Court’s concerns.
The District Court concluded, however, that Wiggins’s allegations do not state a
federal claim, and we agree. Wiggins claims that Logan deprived him of his right to
access the courts, which he identifies as arising under the Fourteenth Amendment but
which has been found to arise under other constitutional provisions as well. See Gibson

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v. Superintendent of N.J. Dep’t of Law and Pub. Safety, 411 F.3d 427, 441-42 (3d Cir.
2005). Wiggins, however, has not been denied his right to access the courts. Wiggins
was permitted to file his 2000 complaint in forma pauperis, and thus was already in court
when the alleged denial of access occurred. Thus, any misconduct on Logan’s part might
have warranted relief in the existing 2000 action, but it would not allow Wiggins to bring
a separate action and assert an independent claim.
As we have explained, “[a] plaintiff typically cannot recover for any cover-ups or
discovery abuses after an action has been filed inasmuch as the trial court can deal with
such situations in the ongoing action. . . . Thus, only prefiling conduct that either prevents
a plaintiff from filing suit or renders the plaintiff’s access to the court ineffective or
meaningless constitutes a constitutional violation.” Estate of Smith v. Marasco, 318 F.3d
497, 511 (3d Cir. 2003) (emphasis added). See also Gibson, 411 F.3d at 441-42
(summarizing actionable right of access claims); Swekel v. City of River Rouge, 119 F.3d
1259, 1263 (6th Cir. 1997) (“When the abuse transpires post-filing, the aggrieved party is
already in court and that court usually can address the abuse, and thus, an access to courts
claim typically will not be viable.”).
Wiggins has alleged no such conduct here. Instead, he alleges merely that Logan
wrongfully interfered with service of process in some manner. As with other post-filing
conduct, that alleged conduct could have been redressed if appropriate by the District
Court in the 2000 action, even if Wiggins discovered it only after that action had been

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dismissed. See, e.g., Fed. R. Civ. P. 4(m) (allowing an extension of time to serve the
complaint for “good cause”); Fed. R. Civ. P. 60(b) (allowing relief from a judgment on
the grounds, inter alia, of mistake, newly-discovered evidence, or fraud). Wiggins also
may have been able to obtain relief in his appeal from the dismissal of his 2000 action.
See Welch, 925 F.2d at 669-70. See also Lindsey v. United States R.R. Retirement Bd.,
101 F.3d 444, 446-47 & n.4 (5th Cir. 1996) (vacating dismissal of in forma pauperis
complaint where failure to serve it was due to District Court’s oversight); Antonelli v.
Sheahan, 81 F.3d 1422, 1426 (7th Cir. 1996) (remanding for consideration of adequacy of
Marshal’s attempt to serve in forma pauperis complaint). Wiggins, however, failed to
prosecute that appeal, which led to its dismissal, so he forfeited any right to challenge the
dismissal of his 2000 action.
Thus, we agree that Wiggins did not state a federal claim. The District Court went
on to conclude that “the underlying facts of this claim sound in state law” and declined to
exercise supplemental jurisdiction. The District Court did not discuss what claim these
allegations might give rise to under state law, and we express no opinion on that issue. To
the extent that they can be construed to assert a claim under state law, however, the
District Court did not abuse its discretion in declining to exercise supplemental
jurisdiction, which it did for the statutorily-authorized reason that it had dismissed all
claims within its original jurisdiction. See 28 U.S.C. § 1367(c)(3); Figueroa, 188 F.3d at
181.
Accordingly, we will affirm.

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