2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

7-30-2013 

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- 341 NOT PRECEDENTIAL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 SHA FFER; 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

_________2

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 prison er proceeding pro se , filed a civil rights complaint

. After A ppellees ’ motion s to dismiss w ere granted in part, Anderson filed an amended complaint and then a second amended complaint. After discovery, Appellees filed mo tions 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 Recommendatio n and a motion to amend or alter the judgment. The District Court revie wed the belated objections and denied the motion to amend or alter the judgment. Ande rson 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 that3

“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 mo tions, 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 con test 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 Recommend ation. 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 mo tions . 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 claim s or dispute any specific factual s tatements 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 Appellee s addressed the wrong complaint. He admits that he failed to respon d to Appellees’ Concise Statements of4

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’ C oncise S tatements. A review of the procedural history of Anderson ’s claims indicates that hi s claims have been appropriately addressed. In his origi nal complaint, Anderson brought claims against twenty defendants. The District Court dismissed several claims with prejudice. However, it dismissed Anderson’s claims of d enial 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 claim s

— excess ive force and failure to intervene

— against three defendants, Folino, S haffer, and Rauswinder. After Appe llees 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 ca re, and denial of Equal Protection. Appellees again filed5

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 Appellee s’ motion s 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 Rauswinde r 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 denia l o f medical care, excessive force , conspiracy, and failure to intervene, and argued that Anderson had not exhausted his administrative remedies with respect to seve r al claims. They noted that Anderson denied bringing any state law tort claims. In the Di strict Court and on appeal, Anderson has not pointed to any claim that was not addressed by Appellees or the District Court. T he failure to raise an issue in the District Court results in its waiver on appeal. Webb v. City of Philadelphia , 562 F.3d 256, 2 63 (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 Cou rt’s order. See Third Circuit
I.O.P. 10.6. Appellee Howard

- Diggs’s motion for summary affirmance is granted.