2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-2013

Keith Anderson v. Bowman

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1844

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Recommended Citation

"Keith Anderson v. Bowman" (2013). 2013 Decisions. Paper 465.

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DLD-341 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1844

___________

KEITH ANDERSON,

Appellant

v.

LOUIS FOLINO, SUPERINTENDENT; VICTOR SANTOYA; BOGDEN; NELSON;

STUMP; RUSH; DUKE; BOWMAN; RICK SHAFFER; RAUENSWINDER; 

KERFELT; WILSON; DONNA DOE; ROXANNE DOE; MEGA; TANNER; 

MICHELE HOWARD-DIGGS; WALTERS; GRIM; JOHN MCNANY

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 10-cv-00937)

District Judge: Honorable Gary L. Lancaster

____________________________________

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

July 18, 2013

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: July 30, 2013)

_________

OPINION

_________
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PER CURIAM

Keith Anderson appeals the District Court’s order granting Appellees’ motions for 

summary judgment. For the reasons below, we will summarily affirm the District 

Court’s order.

Because we write primarily for the parties and the District Court thoroughly set 

forth the factual and procedural background in its opinion, we will limit our discussion to 

the facts that are helpful to our analysis. Anderson, a prisoner proceeding pro se, filed a 

civil rights complaint. After Appellees’ motions to dismiss were granted in part, 

Anderson filed an amended complaint and then a second amended complaint. After 

discovery, Appellees filed motions for summary judgment. The Magistrate Judge 

recommended that the motions be granted. The District Court adopted the Report and 

Recommendation as its opinion and granted the motions. Anderson then filed his 

objections to the Report and Recommendation and a motion to amend or alter the 

judgment. The District Court reviewed the belated objections and denied the motion to 

amend or alter the judgment. Anderson filed a notice of appeal. Appellee Howard-Diggs 

has filed a motion for summary affirmance.

We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s 

order granting summary judgment de novo and review the facts in the light most 

favorable to the nonmoving party. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d 

Cir. 2011). A grant of summary judgment will be affirmed if our review reveals that 
3

“there is no genuine dispute as to any material fact and that the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

In his response to the summary judgment motions, Anderson did not discuss the 

merits of any of his claims. He simply argued that the Appellees’ motions addressed the 

first amended complaint instead of the second amended complaint. He did not specify 

any claims which had not been addressed or contest any of the Appellees’ evidence. He 

did not respond to or dispute the Appellees’ Concise Statements of Material Facts.

Despite Anderson’s limited response, the Magistrate Judge thoroughly described 

and addressed his claims in her Report and Recommendation. She noted that she would 

not address any claims which had been dismissed with prejudice in the earlier order. In 

his objections to the Report and Recommendation, Anderson repeated the same 

arguments he made in opposition to the summary judgment motions. He also challenged

the Magistrate Judge’s determination that his lack of response to the concise statements 

should be considered an admission of the facts therein. He again did not discuss the 

merits of his claims or dispute any specific factual statements by the Appellees. The 

District Court adopted the Report and Recommendation and granted summary judgment 

to Appellees.

On appeal, Anderson repeats his argument that the Appellees addressed the wrong 

complaint. He admits that he failed to respond to Appellees’ Concise Statements of 
4

Material Facts. He has not pointed to any mistake made by the District Court in 

evaluating his claims or disputed any of the facts in the Appellees’ Concise Statements.

A review of the procedural history of Anderson’s claims indicates that his claims 

have been appropriately addressed. In his original complaint, Anderson brought claims 

against twenty defendants. The District Court dismissed several claims with prejudice. 

However, it dismissed Anderson’s claims of denial of medical care, failure to intervene, 

and conspiracy without prejudice to his filing an amended complaint. It denied the 

motion to dismiss with respect to Anderson’s claims of failure to intervene and 

conspiracy against Rauswinder and his state law tort claims. Appellees had not moved to 

dismiss Anderson’s claims of excessive force and retaliation against Shaffer.

In his first amended complaint, Anderson raised two claims—excessive force and 

failure to intervene—against three defendants, Folino, Shaffer, and Rauswinder. After 

Appellees filed motions to dismiss, Anderson was given the opportunity to file a second 

amended complaint. When Anderson asked for clarification, the Magistrate Judge noted 

that if Anderson included any new claims or claims previously dismissed, they would be 

struck from the complaint.

In his second amended complaint, he brought claims against twenty defendants 

including violations of his First Amendment right to petition the government, excessive 

force, denial of medical care, and denial of Equal Protection. Appellees again filed 
5

motions to dismiss. The Magistrate Judge dismissed the motions to dismiss without 

prejudice to Appellees filing motions for summary judgment.

The claims remaining at the time of Appellees’ motions for summary judgment 

were those claims that had survived the initial motions to dismiss (excessive force and 

retaliation against Shaffer, failure to intervene and conspiracy against Rauswinder and the 

state law tort claims) and those claims Anderson was permitted to amend (denial of 

medical care, failure to intervene, and conspiracy). While the Correctional Appellees 

may have mistakenly referred to the first amended complaint in their motion for summary 

judgment, they addressed Anderson’s claims of denial of medical care, excessive force, 

conspiracy, and failure to intervene, and argued that Anderson had not exhausted his 

administrative remedies with respect to several claims. They noted that Anderson denied

bringing any state law tort claims. In the District Court and on appeal, Anderson has not 

pointed to any claim that was not addressed by Appellees or the District Court. The 

failure to raise an issue in the District Court results in its waiver on appeal. Webb v. City 

of Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009). 

Summary action is appropriate if there is no substantial question presented in the 

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by 

the District Court, we will summarily affirm the District Court’s order. See Third Circuit 

I.O.P. 10.6. Appellee Howard-Diggs’s motion for summary affirmance is granted.