NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-2683

___________

CHARLES WHITNEY, Appellant

v.

M. LAMAS; MAJOR TOD ROBINSON; DEPUTY BOYLES; DEPUTY MILLER; 

CPT. DYKE; LT. HOOVER; SGT. T. ROGERS; SGT. POWELL; LT. HARDY; C/O 1 

PORTERS; C/O 1 OSBOURNE; J. HORTON; CPT. ETON; MAJOR SNEDEKER; 

MAJOR MCNAHON; D.A. KUHN; C/O 1 NEARHOOD; C/O 1 M. ANTHONY; LT. 

BAILEY; C/O 1 DRUCKIMILLER; FED RIEBSOME; MR. DOUGHERTY; C/O 1 

CEPRISHA; C/O 1 TAYLOR; C/O 1 ANNSKI; CFSI JEDRZEJIK; C/O 1 SULLIVAN; 

NURSE JANE DOE; C/O 1 JOHN DOE 1-5

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Civil Action No. 3-14-cv-00357)

District Judge: Honorable James M. Munley

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 2021

Before: MCKEE, SHWARTZ, and RESTREPO, Circuit Judges

(Opinion filed: August 3, 2023)

___________

OPINION*

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

constitute binding precedent.
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PER CURIAM

Charles Whitney, proceeding pro se, appeals an order of the United States District 

Court for the Middle District of Pennsylvania granting the defendants’ motion for 

summary judgment in his civil rights action. We will dismiss the appeal for lack of 

appellate jurisdiction.

Whitney, a Pennsylvania state prisoner, filed a lengthy complaint against more 

than 30 defendants, most of whom worked at the Rockview State Correctional Institution. 

Whitney claimed that prison staff conspired and retaliated against him for filing a lawsuit 

and grievances. The alleged retaliation included, among other things, false misconduct 

charges and a transfer to SCI-Benner Township, where Whitney was incarcerated when 

he filed his complaint. Whitney also averred that he was confined in extremely cold 

cells, assaulted, and denied medical treatment for his injuries. He claimed violations of 

his First, Eighth, and Fourteenth Amendment rights and asserted state law claims, 

including defamation, battery, and intentional infliction of emotional distress.

The District Court partially granted the defendants’ motion to dismiss the 

complaint. The defendants successfully moved to dismiss Whitney’s claims against 

several defendants whose liability was premised on the handling of his grievances or who 

lacked personal involvement in the alleged violations. The District Court also dismissed, 

among other claims, Whitney’s retaliation claims related to his lawsuit because that suit 

was too remote in time to support his claims. The District Court denied the defendants’ 

motion to dismiss Whitney’s Eighth Amendment claim of intentional confinement in an 
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extremely cold cell, his retaliation claims related to his filing of grievances, and his claim 

of a conspiracy to deny his civil rights. 

The District Court required Whitney to submit an amended complaint “solely 

regarding his surviving claims . . . .” 2/13/15 Memorandum at 21. It explained that the 

amended complaint “should provide a brief factually specific description of each 

surviving alleged unconstitutional act,” and it advised him of the requirements for stating 

a viable civil rights claim. Id. The District Court stated in its order that Whitney’s 

claims of a conspiracy to retaliate for filing grievances by falsifying misconduct charges 

and engaging in other retaliatory acts, and his Eighth Amendment claims of excessive 

force, denial of medical treatment, and confinement in an extremely cold cell, survived. 

The District Court did not address Whitney’s state law claims, which the defendants had 

noted in their filing but did not move to dismiss.

Whitney filed an amended complaint raising his constitutional and state law 

claims as well as a federal statutory claim involving his right to practice his religion. The 

District Court allowed the defendants to file bifurcated motions for summary judgment, 

first addressing exhaustion of administrative remedies and then addressing the merits of 

Whitney’s claims. 

The District Court granted the defendants’ motion for partial summary judgment 

on many of Whitney’s claims for failure to exhaust administrative remedies, which is 

required before a prisoner may pursue claims regarding prison conditions under 42 

U.S.C. § 1983 or any other federal law. See 42 U.S.C. § 1997e(a). The claims included, 

among others, those related to the alleged cold cell conditions, assault, and denial of 
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medical treatment. The District Court ruled that Whitney had properly exhausted his 

administrative remedies as to several grievances involving damage to his property and 

tampering and interference with his mail. Whitney’s claims related to these grievances, 

as well as his claims related to two alleged false misconduct reports, were allowed to 

proceed. Thereafter, the District Court granted summary judgment in favor of the 

defendants on the merits of these claims. This appeal followed.

Our appellate jurisdiction “is conferred and limited by Congress’s grant of 

authority.” Berckeley Inv. Grp., Ltd. v. Colkitt, 259 F.3d 135, 139 (3d Cir. 2001). 

Appellate jurisdiction under 28 U.S.C. § 1291, the applicable statute here, requires a 

“final decision” by a district court. Id. at 139-40. “‘Ordinarily, an order which 

terminates fewer than all claims, or claims against fewer than all parties, does not 

constitute a ‘final’ order for purposes of appeal under 28 U.S.C. § 1291.’” Id. at 140 

(quoting Carter v. City of Philadelphia, 181 F.3d 339, 343 (3d Cir. 1999)). 

As noted above, the defendants did not move to dismiss Whitney’s state law 

claims and the District Court did not address these claims in adjudicating the motion to 

dismiss. Although the District Court did not identify the state law claims as surviving 

claims in its order partially granting the motion to dismiss, its memorandum reflects that 

it was specifying Whitney’s surviving civil rights claims. 

The defendants also recognized in their motions for summary judgment that 

Whitney had raised state law claims in his amended complaint, but they did not move for 

summary judgment as to those claims. When the District Court granted the summary 

judgment motions, it did not address the state law claims or direct the entry of a final 
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judgment pursuant to Federal Rule of Civil Procedure 54(b). In addition, there is no 

indication that Whitney abandoned his state law claims. See Bethel v. McAllister Bros., 

81 F.3d 376, 382 (3d Cir. 1996) (stating a non-appealable order may become final where 

the plaintiff voluntarily abandons his claims). Because the District Court has not issued a

final order resolving all of Whitney’s claims, appellate jurisdiction is lacking.

It is also not entirely clear whether the District Court decided all of Whitney’s 

claims under § 1983 against all of the defendants. The District Court granted partial 

summary judgment and then summary judgment in favor of some, but not all, of the 

named defendants. While claims against the other named defendants may have been 

implicitly encompassed in its decision granting partial summary judgment, the District 

Court should clarify its decision when it addresses Whitney’s state law claims. To the 

extent Whitney contends in his brief that the District Court has not decided all of his 

federal claims, he should raise this contention when the case proceeds in the District 

Court. 

Accordingly, we will dismiss this appeal for lack of jurisdiction.