Gordon R. Der Weer v. United States of America

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1392
GORDON R. DER WEER,
Appellant
v.
UNITED STATES OF AMERICA;
FEDERAL BUREAU OF PRISONS
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF THE VIRGIN ISLANDS
D.C. Civil No. 01-cv-00118
District Judge: The Honorable Raymond L. Finch, Chief Judge
Argued: December 5, 2006
Before: McKEE, BARRY and STAPLETON, Circuit Judges
(Opinion Filed: January 5, 2007)
Renee D. Dowling, Esq. (Argued)
P.O. Box 1047
Christiansted, Saint Croix
USVI, 00821
Counsel for Appellant

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Ernest F. Batenga, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, Saint Croix
USVI, 00820
Counsel for Appellees
OPINION
BARRY, Circuit Judge
After five years of proceedings before the District Court, the Court dismissed the
complaint of appellant Gordon R. Der Weer. Der Weer concedes that he failed to
properly plead either a Bivens action or a claim under 42 U.S.C. § 1983, but argues that
the District Court should not have dismissed his complaint on those “purely technical
grounds” and should have permitted him to file the identical amended complaint the
Court rejected in March 2002. He asks, in the alternative, that we permit him to amend
his complaint under 28 U.S.C. § 1653 so he can, at this late date, cure what he describes
as his defective allegations of subject matter jurisdiction.
We have considered the submissions of the parties and have heard oral argument.
Nothing need be said other than that in November 2002, the District Court granted leave
to Der Weer to file an amended complaint and in January 2003, April 2003, and April
2004, confirmed its intent to accept an amended complaint in proper form. Der Weer
filed nothing.

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The order of the District Court will be affirmed.

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