NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3128

___________

MONIR GEORGE,

 Appellant

v.

WARDEN; NANCY PERSALL; DR. WATSON; DR. SELIG;

VENNE FABER, Health Compliance Coordinator, DDOC;

YEEMI AWODIYA, CMS, Health Service Administrator;

RICHARD GAUDET, Psychologist; ROBERT STERN;

S. RASAD RASHID, Psychiatrist; MARK EWING, Deputy Warden;

PHILLIP PARKER, Major; CORRECTIONAL MEDICAL SERVICES;

C/O STROUPE; C/O BRAGG; C/O NORRIS

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1:09-cv-00962)

District Judge: Honorable Noel L. Hillman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 1, 2013

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: May 6, 2013)

_________

OPINION

_________
2

PER CURIAM

Monir George, a Delaware prisoner, filed a civil rights suit alleging mistreatment 

as a pretrial detainee. George amended his complaint several times. The District Court 

dismissed many claims pursuant to its screening responsibilities under the Prison 

Litigation Reform Act (PLRA); the remaining claims failed at the summary judgment 

stage, at least in part because George did not meaningfully oppose the defendants’ 

motions for summary judgment. The summary judgment order also dismissed a pending 

claim against a defendant for failure to effect timely service under Fed. R. Civ. P. 4(m). 

George now appeals those adverse orders, as well as rulings denying the appointment of 

counsel and restricting his requests for additional discovery. For the following reasons, 

we will affirm the majority of the District Court’s judgment, but will also vacate in part 

and remand for further proceedings.

I.

While awaiting trial on murder and associated charges,

1 George was alternately 

housed at the Howard R. Young Correctional Institution (HRYCI) and the Delaware 

Psychiatric Center (DPC). For a time, George was placed in “psychiatric close 

observation” (PCO) status, an “observational status initiated for offenders deemed to be 

at risk for suicide or experiencing extreme decompensation and requiring increased 

 

1 He was ultimately found guilty but mentally ill of the charges. See generally

George v. State, 5 A.3d 630 (Del. 2010) (table).
3

surveillance and management by staff.” Del. Dep’t of Corr. Policy G-05 § IV(E)(1), ECF 

No. 051-1, Ex. B.

2

In December 2009, George filed a bare-bones federal civil-rights complaint, which 

he quickly amended (ECF No. 005) to include a variety of claims aimed at numerous 

employees and contractors associated with the DPC and HRYCI. The amended 

complaint alleged inadequate medical care, Due Process and Equal Protection violations, 

enforced isolation, abuse by corrections officers, an “unhealthy diet,” interference with 

religious practice (sounding under the Free Exercise Clause and the Religious Land Use 

and Institutionalized Persons Act (RLUIPA)), and a systematic failure to protect George 

from inmate attacks (which were, in turn, based on his race and religious affiliation). 

Taking center stage were George’s claims about the conditions of his confinement in the 

HRYCI infirmary unit, which included twenty-four hour illumination in a cell (#196) that 

lacked either running water or a functional toilet with a cell-mate who displayed signs of 

an infectious condition – and, later, incarceration in another cell (#206) whose mattress 

was “partial[l]y squeezed on the floor under [the] toilet.”

In its first of three opinions, the District Court dismissed some claims as frivolous, 

dismissed others for failure to state a claim (but granted leave to amend), and allowed yet 

other claims to proceed past screening. See generally George v. Morgan, No. 09-962, 

2010 U.S. Dist. LEXIS 42667 (D. Del. Apr. 30, 2010). Specifically, the Court dismissed 

 

2 All ECF citations are to documents on the District Court’s electronic docket.
4

“the claims against Morgan, Persall, Watson, Selig, Rashid, Emig, Parker and Doe(s) . . .

with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and § 1915(e)(2)(B),” 

granted George leave to amend “the conditions of confinement claim,” and allowed him 

“to proceed on the remaining claims against defendants Faber,3 Awodiya, Gaudet, and 

Stern.” Id. at *17-18.

George filed his second amended complaint (ECF No. 017) shortly thereafter. He 

re-invoked the conditions of confinement, medical treatment, and Due Process claims, 

and expanded upon charges directed at three guards – Stroupe, Bragg, and Norris – who 

were alleged to have engaged in targeted harassment in 2008 and 2009. In its second 

opinion, the District Court eliminated some claims, allowed others to proceed, and 

granted leave to amend the claim against Bragg. See George v. Faber, No. 09-962, 2010 

U.S. Dist. LEXIS 69053, at *14 (D. Del. July 12, 2010). Remaining were “the 

psychiatric care observation Due Process claims against defendants Faber, Awodiya, 

Gaudet, and Stern, and the First Amendment religion claim and [RLUIPA] claims against 

Faber and Gaudet.” Id.

As per the Court’s instructions, George’s third and final amended complaint (ECF 

019) dealt solely with an October 2009 incident involving Bragg and a guard John Doe, 

who allegedly ignored and then aggravated George’s medical condition (by spraying him 

 

3 Defendant “Venne Faber” is actually “Vinnie Fabber.” Because the District 

Court opinions and Faber’s submissions generally use the incorrect spelling, we will do 

so to avoid confusion.
5

with a bleach solution while repeatedly mocking and demeaning him) before transferring 

him to a less-desirable cell. At this point, having screened the third amended complaint 

and concluding that it contained “cognizable” constitutional claims against defendants 

Bragg and Doe, the District Court ordered the relevant complaints served upon the 

respective parties. 10/29/2010 Order, ECF No. 022. The discovery phase then followed.

In its final opinion, the District Court granted the remaining defendants’ request 

for summary judgment, dismissed the claim against Bragg without prejudice under Fed. 

R. Civ. P. 4(m), denied George’s motion to compel, and granted the defendants’ motions 

to quash George’s subpoenas. See generally George v. Faber, No. 09-962, 2012 U.S. 

Dist. LEXIS 88875 (D. Del. June 27, 2012). George filed a timely notice of appeal.

II.

We have jurisdiction under 28 U.S.C. § 1291. Sua sponte dismissals under the 

PLRA receive plenary review, as do orders granting summary judgment. See Allah v. 

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000); Kurz v. Phila. Elec. Co., 994 F.2d 136, 138 

(3d Cir. 1993). The remaining orders, involving appointment of counsel, discovery 

matters, dismissals under Fed. R. Civ. P. 4(m), and leave to amend, are reviewed for 

abuse of discretion. See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 268 (3d Cir. 

2012); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Boley v. 

Kaymark, 123 F.3d 756, 758 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 

1993); cf. Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001). “[W]e can 

affirm on any ground supported by the record.” Grayson, 293 F.3d at 109.
6

III.

We examine first the narrow subset of claims that survived to the summaryjudgment stage. George failed to produce evidence in opposition to the defendants’ 

submissions, which he attributes to discovery evasion by the defendants. To the extent 

that George was attempting to acquire privileged or irrelevant material through his 

subpoenas, we conclude that the District Court did not abuse its discretion by limiting 

discovery and quashing the subpoenas.4 Otherwise, we agree with the District Court that, 

even construing the factual record in George’s favor, he failed to do more than “rest . . . 

on the allegations in [his] pleadings,” see Bhatla v. U.S. Capital Corp., 990 F.2d 780, 787 

(3d Cir. 1993), and as a result could not prevail against the remaining defendants.5 See, 

e.g., Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007) (“[T]he plaintiff shall bear 

the burden of persuasion on whether [the challenged practice or law] substantially 

burdens the plaintiff’s exercise of religion.” (quoting 42 U.S.C. § 2000cc-2(b))).

 

4

The subpoenas do not appear to have been untimely, because the District Court 

extended the fact-discovery deadline by an additional sixty days in a December 13, 2011 

order. See ECF No. 057.

5 George alleges that Gaudet and Stern unconstitutionally kept him in PCO status 

for an extended duration. While it appears that one or both may have had the power to 

downgrade George’s PCO status or discharge him, nothing in the record suggests that 

either was involved in this determination. We need not determine, in any event, whether 

this confinement otherwise “pass[ed] constitutional muster.” Bistrian v. Levi, 696 F.3d 

352, 373 (3d Cir. 2012).
7

Turning to the dismissed claims, we address first those pertaining to the conditions 

of confinement. In the second amended complaint,6 George described constant 

illumination, exposed sewage, and other conditions that could be deemed offensive. 

Courts are sensitive to situations suggesting an extended period of privation or hardship. 

See Hubbard v. Taylor, 538 F.3d 229, 231, 233–34 (3d Cir. 2008). However, we 

conclude that George’s complaint simply did not articulate sufficient facts to connect any 

of the defendants with these conditions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007). Accordingly, the District Court did not err in dismissing these claims.7 Nor 

did George plead sufficient personal involvement in any constitutional violation by the 

defendants dismissed in the District Court’s first opinion. See Evancho v. Fisher, 423 

F.3d 347, 353 (3d Cir. 2005). Also, the District Court did not abuse its discretion in 

declining to appoint George counsel after weighing the Tabron factors.

Finally, George argues that the District Court should not have dismissed his claim 

against defendant Bragg under Fed. R. Civ. P. 4(m) for failure to effect service. We 

agree. “As indicated by the plain language of Rule 4(m), notice to the plaintiff must be 

given prior to a sua sponte dismissal.” Thompson v. Maldonado, 309 F.3d 107, 110 (2d 

 

6 George’s amended allegations superseded the originals. See W. Run Student 

Hous. Assocs. v. Huntington Nat’l Bank, No. 12-2430, ___ F.3d ___, 2013 U.S. App. 

LEXIS 6804, at *19 n.4 (3d Cir. Apr. 4, 2013).

7

The District Court dismissed allegations against Stroupe and Norris at this stage. 

Because we independently conclude that those allegations were not well-pleaded, we will 

affirm this portion of the judgment. See Grayson, 293 F.3d at 109.
8

Cir. 2002) (per curiam). Hence, a District Court abuses its discretion when it dismisses 

sua sponte without giving notice to the plaintiff and providing an opportunity to show 

good cause. Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012). Although the District 

Court did discuss Rule 4(m) in its service order, see 10/29/2010 Order 2, it did so only in 

the context of explaining the Form 285 requirement, a step with which George complied; 

and while its final opinion suggests that George “ha[d] not otherwise shown good cause,” 

George, 2012 U.S. Dist. LEXIS 88875, at *3 n.2, George did not have the specific 

opportunity to make such a showing.8

 

8 On remand, the District Court may extend the time for proper service or order 

George to show good cause. Fed. R. Civ. P. 4(m). In a “good cause” determination, “the 

primary focus is on the plaintiff’s reasons for not complying with the time limit in the 

first place.” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 

1995). The District Court already articulated several of the factors that George will likely 

raise and has mentioned in his briefs before us, and we are not expressing an opinion on 

whether George can satisfy the good cause standard. We do note that George provided, 

inter alia, a physical description of the defendant in question, and may have come within 

a letter of identifying him by name. Cf. Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 

1997). We also note that while an IFP plaintiff is not penalized for service failures when 

they occur “through no fault of his own,” he must “remedy any apparent service defects” 

of which he becomes aware. Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992)

(quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)), superseded by statute 

on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000). Given 

the lengthy passage of time in this case, George’s belated attempts at discovery (tempered 

by his later success at extending the discovery period), and the defendants’ eleventh hour 

disclosure of the apparent identity of defendant “Bragg,” a “proper” resolution of the 

good cause determination is not easily found in the relevant cases on point. See also

Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013) (observing that 

while “courts need not provide substantive legal advice to pro se litigants,” they may “be 

flexible,” within reason, in certain circumstances). We commit the inquiry to the sound 

discretion of the District Court.
9

IV.

For the foregoing reasons, we will vacate the Rule 4(m) dismissal for failure to 

effect timely service upon defendant Bragg and remand for further proceedings. The 

judgment of the District Court will otherwise be affirmed. Judge Garth voted to affirm 

the District Court, noting that the District Court's order of October 29, 2010, gave the 

requisite notice to Monir George under Fed. R. Civ. P. 4(m). Judge Garth therefore 

dissents from the Court's disposition.