BLD-030 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3059

___________

ELWOOD SMALL; PEARLIE DUBOSE, JR.

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

DAVID PITKINS, Superintendent of the State of Correctional Institution

at Laurel Highlands, in his Official and Personal Capacities; TIM

PLEACHER, Deputy Superintendent for the Centralized Services at

SCI Laurel Highlands, in his Official and Personal Capacities; WILLIAM

MAILMAN, Classification and Program Manager for SCI Laurel Highlands

in his Official and Personal Capacities; LIEUTENANT CONTI; HARRY

MAUST; JOHN DOES 1 THROUGH 4

Elwood Small,

Appellant

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-12-cv-00083)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

November 14, 2014

Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Opinion filed: November 19, 2014)
2

_________

OPINION*

_________

PER CURIAM

Elwood Small, a Pennsylvania inmate proceeding pro se and in forma pauperis, 

appeals from the District Court’s order granting summary judgment to the defendants on 

his equal protection claim. For the reasons set forth below, we will summarily affirm.

I.

This appeal marks our second review of Small’s case. See Small v. Wetzel, 528 F. 

App’x 202 (3d Cir. 2013) (not precedential) (“Small I”). On our first review, we vacated 

the District Court’s dismissal of Small’s equal protection claim because we found that he 

adequately alleged that participating in fasting and feasting holy days was more onerous 

for Muslim inmates than Jewish inmates. Id. at 210. We affirmed dismissal of Small’s 

remaining claims. Id.

On remand, the Magistrate Judge ordered Small to identify the Jewish holy days of 

fasting and feasting that are comparable to Ramadan. Small’s attorney then withdrew, 

and Small requested more time to complete discovery, which the Magistrate Judge 

denied. Small then submitted documentation on the prison’s treatment of two Jewish fast 

days and compared them with the prison’s treatment of Ramadan. 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

After reviewing Small’s submissions, the Magistrate Judge recommended granting 

summary judgment to the defendants because Small failed to demonstrate that Muslim 

inmates seeking to celebrate Ramadan were similarly situated to Jewish inmates seeking 

to celebrate the two one-day fasts. The District Judge adopted the recommendation and 

granted summary judgment to the defendants. Small filed a motion for reconsideration, 

which the District Court denied. Small then timely appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District 

Court’s order granting summary judgment is plenary. See State Auto Prop. & Cas. Ins. 

Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Summary judgment is 

appropriate if, viewing the facts in the light most favorable to the non-moving party, there 

is no genuine issue of material fact and the moving party is entitled to judgment as a 

matter of law. Fed. R. Civ. P. 56(a). We will summarily affirm the District Court’s grant 

of summary judgment because this appeal does not present a substantial question. See 3d 

Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

The District Court granted summary judgment to the defendants on Small’s equal 

protection claim because Small failed to establish a necessary factual predicate: that he 

was similarly situated to those allegedly treated better. We agree. “The Equal Protection 

Clause of the Fourteenth Amendment . . . is essentially a direction that all persons 

similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living 

Ctr., 473 U.S. 432, 439 (1985). As such, we found no equal protection violation in 
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DeHart v. Horn, 390 F.3d 262, 272 (3d Cir. 2004), because the plaintiff, a Buddhist 

inmate, failed to prove that he was similarly situated to Muslim and Jewish inmates 

regarding his religious dietary restrictions. DeHart was not similarly situated because his 

proposed diet imposed a greater burden on the prison than Muslim and Jewish inmates’ 

diets. Id. Thus, although the prison treated DeHart differently, it did not violate the 

Equal Protection Clause.

The same is true here. The two Jewish fasting days Small identified are not 

comparable to Ramadan. As the Magistrate Judge noted, Ramadan is much longer, 

involves more logistical challenges, and ends with a communal feast. Therefore, inmates 

seeking to participate in Ramadan are not similarly situated to inmates seeking to 

participate in the Jewish fasting days, and the prison did not violate the Equal Protection 

Clause by treating such inmates differently. Under DeHart, summary judgment for the 

defendants was appropriate.

III.

Small raises several unavailing arguments in support of his appeal. First, he 

contends that the District Court erred by granting summary judgment without a motion. 

The rules clearly authorize this process. See Fed. R. Civ. P. 56(f).

Next, Small contends that summary judgment was premature because he needed 

more discovery. “Whether a district court prematurely grants summary judgment is 

reviewed for abuse of discretion.” Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir. 1989). 

A court may defer ruling on a summary judgment motion if the “nonmovant shows by 
5

affidavit or declaration that, for specified reasons, it cannot present facts essential to 

justify its opposition.” Fed. R. Civ. P. 56(d). In addition to filing an affidavit or 

declaration, the rule “requires that a party indicate to the district court its need for 

discovery, what material facts it hopes to uncover and why it has not previously 

discovered this information.” Radich, 886 F.2d at 1393-94.

Small did not attempt to comply with Rule 56(d), but he did request more time for 

discovery, which the Magistrate Judge denied with good reason. The only issue Small 

needed to address was which Jewish holy days of fasting and feasting were comparable to 

Ramadan. At that point, Small’s case had been pending for more than two years; the 

District Court did not abuse its discretion in declining to give him even more time to 

support this simple factual allegation.1

Small also contends that the District Court erred by considering an unsworn 

affidavit that the defendants submitted with their response to his objections to summary 

judgment. The District Judge adopted the Magistrate Judge’s report and recommendation 

on summary judgment as the opinion of the court without any changes. Even assuming 

that the District Judge considered the defendants’ allegedly improper evidence, it makes 

no difference because the report and recommendation was drafted before the defendants’ 

 

1 Further, despite the time constraints, Small was able to obtain and submit documents on 

the prison’s treatment of Jewish fasting holidays, which formed the basis of his 

opposition to summary judgment.
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response to Small’s objections. Therefore, the District Court’s opinion did not rely on 

and could not have been affected by the allegedly improper evidence.

Lastly, Small raises concerns related to an alleged statewide change in policy that 

requires all inmates wishing to participate in fasting and feasting holidays to sign an 

agreement similar to the Ramadan agreement, regardless of their religion. In Small I, we 

affirmed dismissal of many of Small’s claims for prospective relief because he was 

moved to a different prison, and thus his claims were moot. See 528 F. App’x at 208-09. 

Small contends that the change in policy revives his claims,2 but remand “does not 

reopen the order appealed from; instead, remand commences a new proceeding which 

will ultimately terminate in another final order.” United States v. Pultrone, 241 F.3d 306, 

308 (3d Cir. 2001) (internal quotation marks omitted). Thus, on remand, the District 

Court properly denied Small’s attempts to relitigate claims that were “conclusively 

determined by the original judgment.” Id. Only Small’s equal protection claim survived 

his first appeal, and the District Court did not err in limiting its focus to that claim.3

 

2 Small also contends that the change in policy entitles him to a declaratory judgment that 

the old policy was unconstitutional. Small relies on Main Rd. v. Aytch, 565 F.2d 54, 59 

(3d Cir. 1977), but that case is distinguishable because the policy changes were in 

response to court orders.

3 Although Small’s contentions about the change in policy are outside the scope of this 

action, he is of course free to raise his concerns in a new action after he has exhausted his 

administrative remedies.
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IV.

There being no substantial question presented on appeal, we will summarily 

affirm.