NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1490

___________

JAMES M. OVERLY, 

Appellant

v.

CHRIS GARMAN, Unit Manager; BRADLEY FISHER, Correctional Counselor; 

HONSTINE, Correctional Officer; PARSON, Correctional Officer; HARPER, 

Correctional Officer; CLAPPER, Correctional Officer; HAZLETT, Correctional Officer

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-12-cv-00832)

District Judge: Honorable Edwin M. Kosik

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 14, 2014

Before: JORDAN, COWEN and BARRY, Circuit Judges

(Filed: March 16, 2015)

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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 James Overly seeks review of the District Court’s order 

dismissing his civil rights action. For the reasons discussed below, we will affirm.

Overly, a Pennsylvania state prisoner, filed suit pursuant to 42 U.S.C. § 1983 

against five correctional officers, a unit manager, and a counselor at the State 

Correctional Institution at Smithfield (SCI-Smithfield). Overly alleged that defendant 

Fisher violated his equal protection rights by failing to promptly inform him of his 

mother’s death. According to the complaint, Fisher was notified on November 7, 2011, 

by the prison chaplain that Overly’s mother had died; however, he failed to inform 

Overly of his mother’s passing until November 21, 2011. Overly maintains that the twoweek delay in notification was in violation of prison procedures and, as a result, he was 

not afforded “equal treatment as is his right.” The complaint also alleged that the 

remaining defendants violated Overly’s civil rights by harassing and retaliating against 

him. Specifically, Overly maintained, inter alia, that (1) he was transferred from cell-tocell, which exacerbated his ill-health, and (2) his cell was repeatedly searched, and his 

property was confiscated and destroyed. The defendants were sued in both their 

individual and official capacities. 

On defendants’ motion, the District Court dismissed the claims against the 

defendants in their official capacity because they were entitled to Eleventh Amendment 

immunity, and dismissed the remaining claims for failure to state a claim for relief. This 

appeal ensued.
3

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a motion to 

dismiss is plenary. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004). To avoid 

dismissal under Fed. R. Civ. P. 12(b)(6), a complaint must “state a claim to relief that is 

plausible on its face” by allowing a “reasonable inference that the defendant is liable for 

the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations 

omitted). 

On appeal, Overly challenges only the District Court’s dismissal of his equal 

protection claim. Appellees argue that Overly has waived his right to appeal the 

remaining claims because he failed to raise them in his brief; Overly did not file a reply 

brief, responding to this contention. We have consistently held that issues not raised in 

an opening brief are deemed waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 

1993) ; see also LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) 

(although “appellate courts generally do not hold pro se litigants rigidly to the formal 

briefing standards . . . we need not manufacture claims of error for an appellant 

proceeding pro se, especially when he has raised an issue below and elected not to pursue 

it on appeal.”). We therefore limit our review to Overly’s equal protection claim.1

We agree with the District Court that the complaint fails to properly state a claim 

for the violation of Overly’s equal protection rights. The Equal Protection Clause is 

 

1

 Overly sought and was granted an extension to file a reply brief, but he did not do so. 

We note that, even if we were to address his other claims, we would affirm the District 

Court’s dismissal for substantially the same reasons stated in its January 31, 2014 order. 
4

ordinarily applied to claims of class-based discrimination. See Engquist v. Oregon Dept. 

of Agr., 553 U.S. 591, 601 (2008) (“Our equal protection jurisprudence has typically 

been concerned with governmental classifications that ‘affect some groups of citizens 

differently than others.’”) (citation omitted). As the District Court noted, Overly has not 

alleged that he is a member of a suspect class. See Abdul-Akbar v. McKelvie, 239 F.3d 

307, 317 (3d Cir. 2001) (noting that prisoners are not a suspect class). He has further 

failed to successfully plead a “class of one” claim. Willowbrook v. Olech, 528 U.S. 562, 

564 (2000). To state a claim under the “class of one” theory, Overly must show that “(1) 

the defendant treated him differently from others similarly situated, (2) the defendant did 

so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill 

v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). Crucially, Overly failed to 

allege that he was intentionally treated differently than similarly-situated individuals. 

Indeed, he does not make allegations regarding the treatment of any other inmates. He 

merely notes that he was treated differently when his stepfather passed away; at that time, 

Overly was promptly informed of his stepfather’s death and was offered services. And 

although he argues generally that it was prison procedure to promptly inform inmates of 

family deaths, and that defendant Fisher failed to comply with that procedure in his case, 

he does not argue that the failure to follow procedure was intentional. Accordingly, 

dismissal of the claim was proper.

Based on the foregoing, we will affirm the judgment of the District Court.