NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-2420 ___________

JOHN HART, Appellant

v.

CITY OF PHILADELPHIA; LOUIS GIORLA, Individually and in his official capacity as Commissioner of the Philadelphia Prison System; JOHN DELANEY, Individually and in his official capacity as Warden of Curran-Fromhold Facility; MICHELE FARRELL, Individually and in her official capacity as Warden of House of Corrections; WILLIAM LAWTON, Individually and in his official capacity as Warden of Philadelphia Industrial Correctional Center and House of Correction; CHRISTOPHER THOMAS, Individually and in his official capacity as CMR Director; BRUCE HERDMAN, Individually and in his official capacity as Chief of Medical Operations of the Philadelphia Prison System; SHEILA BEDFORD, Individually and in her official capacity as Bail Commissioner of the City of Philadelphia; CORIZON; ARAMARK CORRECTIONAL SERVICE, INC.; LT. JOSEPH MURRAY, Individually and in his official capacity as a Lieutenant for the Philadelphia Prison System; C.O. RONALD EURE, Individually and in his official capacity as a Correctional Officer for the Philadelphia Prison System; C.O. JOHN #1 DOE, Unknown Correctional Officer, Individually and in his official capacity as a Hearing Examiner for the Philadelphia Prison System; GERALD MAY, Individually and in his official capacity as a Major for the Philadelphia Prison System; WARDEN KAREN BRYANT, Individually and in her official capacity as Warden of Philadelphia Industrial Correctional Center; C.O. JOHN #2 DOE, Unknown Correctional Officer, Individually and in his official capacity as a Hearing Examiner for the Philadelphia Prison System; JAMES ARNONE, Individually and in his official capacity as a Physician for the Philadelphia Prison System; C.O. CHARLES HARMER; C.O. DEIDRA THORNTON; JHEOVANNIE WILLIAMS; C.O. RAMEL YOUNG; SERGEANT SOHAIL AKHTAR; C.O. NATALIA BAPTISTE; SERGEANT ANNCELESTE GANGEMI ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-cv-06661) District Judge: Honorable Jeffrey L. Schmehl ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) June 6, 2019

Before: CHAGARES, BIBAS, and GREENBERG, Circuit Judges

(Opinion filed: June 20, 2019) ___________

OPINION* ___________

PER CURIAM

John Hart appeals multiple orders from the District Court: two orders granting mo-

tions to dismiss for failure to state a claim and an order granting a motion for summary

judgment. For the following reasons, we will affirm in part and vacate in part, and will

remand for further proceedings.

I.

In his second amended complaint, Hart brought claims under

,

stemming from his four-year incarceration in the Philadelphia Prison System (“PPS”)—

specifically during his incarceration at the Curran-Fromhold Correctional Facility

(“CFCF”) and at the Philadelphia Industrial Correction Center (“PICC”). Hart named

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

2 dozens of defendants, including many associated with the City of Philadelphia,1 as well as

Doctor James Arnone (a physician involved with Hart’s medical care at CFCF), and Cori-

zon Health, Inc. (“Corizon”) (the health care provider of PPS).2

As to the City of Philadelphia defendants, Hart claimed, among other things, that:

prison personnel failed to respond to his grievances; he suffered retaliation, allegedly for

filing those grievances and for filing this lawsuit; his legal work was destroyed by prison

personnel; false charges of misconduct were filed against him, and he was transferred to

administrative or punitive segregation as a result of those misconduct charges; and the City

of Philadelphia allegedly instituted unconstitutional policies. With regard to Dr. Arnone

and Corizon, Hart alleged that he was denied medical treatment, in violation of his Eighth

Amendment guarantee against cruel and unusual punishment.

The District Court granted Dr. Arnone’s motion to dismiss on July 28, 2017. Dkt.

#84. On September 21, 2017, the District Court granted the motion to dismiss filed by the

1 These include Louis Giorla, the Commissioner of PPS, John Delaney, the Warden of CFCF, Michele Farrell, the Warden of CFCF, William Lawton, the Warden of the PICC, Karen Bryant, the Warden of PICC, Christopher Thomas, the Director of Records at CFCF, Bruce Herdman, Chief of Medical Operations of PPS, Sergeants Annceleste Gan- gemi and Sohail Akhtar of CFCF, CFCF Correctional Officers Jheovannie Williams, Na- talia Baptiste, Ronald Eure, Ramel Young, Deidra Thornton, PICC Director of Security, Gerald May, PICC Correctional Officer Joseph Murray, Correctional Officer Charles Harmer, a hearing examiner for PPS, Correctional Officer John Doe #1, a hearing exam- iner for PPS, Correctional Officer John Doe #2, a hearing examiner for PPS and Correc- tional Officer John Doe #3, a mail officer for PPS (collectively, the “City of Philadelphia defendants”). 2 Hart also named Aramark Correctional Service, LLC (a food service provider for the PPS). The District Court granted Aramark’s motion to dismiss for failure to state a claim. Dkt. #87. Hart does not appeal this order. 3 City of Philadelphia defendants. Dkt. #89. A few days later on September 29, 2017, before

discovery had taken place, Corizon filed a motion for summary judgment. Dkt. #91. The

District Court granted that motion on March 2, 2018. Dkt. #98. Hart timely appealed.

II.

We have jurisdiction pursuant to

. We review the grant of the

motions to dismiss pursuant to Rule 12(b)(6) de novo. Newark Cab Ass’n v. City of New-

ark,

(3d Cir. 2018). “[A] complaint must contain sufficient factual al-

legations, taken as true, to ‘state a claim to relief that is plausible on its face.’” Fleisher v.

Standard Ins. Co.,

(3d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,

(2007)). We accept all factual allegations in the complaint as true and

construe those facts in the light most favorable to the plaintiff.

Similarly, we review the District Court’s ruling on a motion for summary judgment

de novo. Barefoot Architect, Inc. v. Bunge,

(3d Cir. 2011). Summary

judgment is proper when, viewing the evidence in the light most favorable to the nonmov-

ing party and drawing all inferences in favor of that party, there is no genuine dispute as to

any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Kaucher v. County of Bucks,

, 422–23 (3d Cir. 2006).

“To state a § 1983 claim, a plaintiff must demonstrate the defendant, acting under

color of state law, deprived him or her of a right secured by the Constitution or the laws of

the United States.” Kaucher,

. It is undisputed that the City of Philadelphia

defendants, Dr. Arnone, and Corizon are state actors for purposes of § 1983; thus our focus

is on whether Hart has adequately alleged a violation of his constitutional rights. We

4 address each party in turn.

A. City of Philadelphia defendants

Hart challenges the grant of the City of Philadelphia defendants’ Rule 12(b)(6) mo-

tion on procedural and substantive grounds. First, he argues that the Rule 12(b)(6) motion

was a serial motion barred by Rule 12(g)(2). Second, he argues that he set forth sufficient

facts to survive the motion to dismiss, and further argues that, even if he did not, he should

have been allowed to amend his complaint. We disagree.

Rule 12(g)(2) prohibits successive Rule 12(b)(6) motions raising “a defense or ob-

jection that was available to the party but omitted from its earlier motion.” See Fed. R.

Civ. P. 12(g)(2). However, “[a] district court’s decision to consider a successive Rule

12(b)(6) motion to dismiss is usually harmless, even if it technically violates Rule

12(g)(2).” Leyse v. Bank of Am. Nat’l Ass’n,

(3d Cir. 2015).

Relevant here, the City of Philadelphia defendants filed a motion pursuant to Rule

8(a)(2), asking the District Court to strike the second amended complaint because it was

unnecessarily long and cumbersome, and thus failed to satisfy Rule 8’s pleading standards.

Dkt. #56. The District Court denied this motion, and the City of Philadelphia defendants

subsequently filed a motion to dismiss pursuant to Rule 12(b)(6). Because the basis for the

first motion was Rule 8—that the complaint did not comply with the applicable pleading

standards—we do not view Rule 12(g)(2)’s bar of successive Rule 12 motions as being

applicable.3

3 In his reply brief, Hart argues that Rule 8(a)(2) does not provide any ground to “strike” a pleading, and thus contends the motion was, in reality, a motion to strike pursuant to 5 Turning to Hart’s substantive challenges, he argues on appeal that he sufficiently

alleged facts to support his claims against the numerous City of Philadelphia defendants.

Much of his brief on appeal is dedicated to pointing to paragraphs in his second amended

complaint where he believes he set forth these necessary facts, which he contends the Dis-

trict Court overlooked or ignored. Additionally, he continuously argues that Rule 8 re-

quires only a short and plain statement, and maintains that, if what he provided was insuf-

ficient, he should have been allowed to amend his complaint for a third time.4

A complaint must do more than allege entitlement to relief; rather a complaint has

to “show” such an entitlement with its facts. Fowler v. UPMC Shadyside,

(3d Cir. 2009). “As the Supreme Court instructed in Iqbal, ‘[w]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.’”

Rule 12(f). Appellant’s Reply Br. 3. Therefore, he argues, the subsequent Rule 12(b)(6) motion should have been barred as successive under Rule 12(g)(2). Appellant’s Reply Br. 3. Even if we accepted Hart’s contention that the City of Philadelphia defendants’ first motion was indeed a Rule 12(f) motion, we would not find reversible error, as any error was harmless. See

(when considering an appeal, we must give judgment “without regard to errors or defects which do not affect the substantial rights of the parties”); Leyse, 804 F.3d at 321–22 (“So long as the district court accepts all of the allegations in the complaint as true, the result is the same as if the defendant had filed an answer admitting these allegations and then filed a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h)(2)(B) expressly permits.”). 4 Hart does not challenge the District Court’s determination that he failed to allege a Mo- nell claim as to the City of Philadelphia. See Colburn v. Upper Darby Twp.,

, 1027 (3d Cir. 1991) (noting how a municipality may be held liable under § 1983). Accordingly, we need not address that issue. See F.D.I.C. v. Deglau,

(3d Cir. 2000) (finding an issue not raised in opening brief on appeal was waived and would not be addressed). 6 (quoting Ashcroft v. Iqbal,

(2009)) (alterations in original).

Here, the District Court meticulously went through Hart’s voluminous second

amended complaint, pulled out all of the allegations aimed at the City of Philadelphia de-

fendants, and ultimately determined that Hart failed to provide factual detail to support his

generic statements. For example, with respect to many of the City of Philadelphia defend-

ants, the District Court determined that Hart failed to allege personal involvement with

sufficient particularity. See Rode v. Dellarciprete,

, 1207–08 (3d Cir. 1988)

(noting a defendant in a § 1983 action must have personal involvement in the alleged

wrongs, and such personal involvement must be alleged with appropriate particularity); see

also Evancho v. Fisher,

(3d Cir. 2005) (noting “a civil rights complaint

is adequate where it states the conduct, time, place, and persons responsible”). With re-

spect to the false misconduct charges that Hart alleges various City of Philadelphia defend-

ants filed against him, the District Court determined Hart was given disciplinary hearings

to contest these allegedly false charges. See Smith v. Mensinger,

, 653–54

(3d Cir. 2002) (noting that “due process is satisfied where an inmate is afforded an oppor-

tunity to be heard and to defend against the allegedly falsified evidence and groundless

misconduct reports”); see also Freeman v. Rideout,

(2d Cir. 1986) (“The

prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly

accused of conduct which may result in the deprivation of a protected liberty interest.”).

Upon our review of Hart’s second amended complaint, we agree that Hart has al-

leged, but has not shown, that he is entitled to relief. Much of the second amended com-

plaint contains conclusory allegations that do not provide detail beyond averring that

7 “Defendant [X]” harmed Hart in some capacity, which is insufficient to state a claim.5 See

Iqbal,

(noting that, while the pleading standard of Rule 8 does not require

“‘detailed factual allegations,’” it requires “more than an unadorned, the-defendant-unlaw-

fully-harmed-me accusation,” and that a complaint is insufficient “if it tenders ‘naked as-

sertions’ devoid of ‘further factual enhancement’” (alteration omitted) (quoting Twombly,

)). Furthermore, given the circumstances of this case, including the fact

that Hart was allowed to amend his complaint twice, the District Court did not err in de-

clining to invite additional amendment of his complaint. See Grayson v. Mayview State

Hosp.,

(3d Cir. 2002).

B. Dr. James Arnone

Hart maintains that he adequately alleged a violation of the Eighth Amendment in

his second amended complaint. Specifically, Hart claims that Dr. Arnone violated his con-

stitutional right to adequate medical care because Dr. Arnone discontinued a prescription

for a lotion to treat a skin condition that was prescribed by another doctor. He also argues

that, if detail is lacking in his second amended complaint, he should be allowed to amend

his complaint again. We disagree.

In order to sustain his constitutional claim under

, Hart must “make

(1) a subjective showing that [Dr. Arnone was] deliberately indifferent to [his] medical

needs and (2) an objective showing that those needs were serious.” Pearson v. Prison

5 For purposes of brevity, we need not go through every single instance of alleged mis- conduct for every single City of Philadelphia defendant, including, inter alia, Hart’s retal- iation and access to the courts claims. The District Court has already addressed all of Hart’s claims, and we agree with the determinations detailed in the memorandum order. 8 Health Serv.,

(3d Cir. 2017) (internal quotation marks omitted); see also

Estelle v. Gamble,

(1976) (to state an Eighth Amendment claim, “a pris-

oner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indiffer-

ence to [2] serious medical needs” (emphasis added)). As to the subjective prong of the

Eighth Amendment test, mere errors in medical judgment or other negligent behaviors do

not meet the subjective mens rea requirement. See Estelle, 429 U.S. at 106–07; see also

White v. Napoleon,

(3d Cir. 1990) (“Mere medical malpractice cannot

give rise to a violation of the Eighth Amendment.”)

Our review of the operative second amended complaint reveals that Hart has failed

to satisfy the Estelle standard. Specifically, Hart does not provide sufficient factual alle-

gations to support the inference that Dr. Arnone had the requisite mental state for his ac-

tions to be considered deliberately indifferent to Hart’s medical needs. Cf. Spruill v. Gillis,

, 237–38 (3d Cir. 2004) (finding the plaintiff’s complaint sufficiently con-

nected his factual allegations to the alleged mental states of the treating physicians to state

an Eighth Amendment claim). Dr. Arnone’s decision to discontinue a lotion prescribed by

another doctor is not per se sufficient, and there are no facts alleged that support this action

was done maliciously. See White, 897 F.2d at 109–10 (noting that intentional interference

with prescribed treatment is one method of showing deliberate indifference to serious med-

ical needs, but that no claim under the Eighth Amendment is stated “when a doctor disa-

grees with the professional judgment of another doctor” (emphasis in original)).

On appeal, Hart argues that he has established the deliberate indifference prong be-

cause he asserted Dr. Arnone’s decision was based on an alleged policy of Corizon which

9 encouraged its employees “to cut costs for medical services and medication in order to

increase [profits].” Second Am. Compl. ¶¶ 97–98. While we have found deliberate indif-

ference in situations where “necessary medical treatment is delayed for non-medical rea-

sons,” Natale v. Camden Cty. Corr. Facility,

(3d Cir. 2003), a complaint

must include more than labels and conclusions, formulaic recitations of the elements of the

cause of action, and naked assertions devoid of further factual enhancement. Iqbal,

. The paragraphs cited by Hart in the second amended complaint are such naked

assertions, and do not nudge his claims of deliberate indifference “across the line from

conceivable to plausible.”

. In any event, as the District Court correctly deter-

mined, Hart also fails to state a claim because he has failed to allege facts that support the

conclusion that his skin condition6 is sufficiently serious for purposes of the Eighth Amend-

ment.7 See Colburn, 946 F.2d at 1023 (noting a prisoner’s condition “must be such that a

failure to treat can be expected to lead to substantial and unnecessary suffering, injury, or

death” (emphasis added)).8 For the reasons already noted above, the District Court did not

6 The operative second amended complaint does not specify what the skin condition is, but the first amended complaint stated that the condition is Keratosis Pilaris, which was described by Dr. Arnone as “a common skin condition that causes rough patches and small, acne-like bumps usually on the arms, thighs, cheeks and buttocks.” Dkt. #84 at 2. 7 Indeed, the second amended complaint omits the name of the skin condition, omits any description of the symptoms of the skin condition and how it affects Hart, and omits how failure to treat the condition could lead to further injury or unnecessary suffering. 8 Hart appears to argue on appeal that because he was prescribed medicine for his skin condition, he has satisfied the “serious medical need” prong of Estelle. We do not be- lieve the one-time prescription of medication is a per se indication that a condition is “se- rious” for purposes of Estelle. See White,

(“There may, for example, be several acceptable ways to treat an illness.”). Moreover, Hart has failed to allege that the 10 err in declining to invite additional amendment of the complaint. See Grayson,

.

C. Corizon

On appeal, Hart appears to argue that the District Court erred by prematurely grant-

ing summary judgment to Corizon before he had the chance to conduct discovery. We

agree, and will remand as to this issue.

“It is well established that a court is obliged to give a party opposing summary judg-

ment an adequate opportunity to obtain discovery.” Shelton v. Bledsoe,

(3d Cir. 2015) (internal quotation marks omitted). “This is necessary because, by its very

nature, the summary judgment process presupposes the existence of an adequate record.”

Doe v. Abington Friends Sch.,

, 257 (3d Cir. 2007) (emphasis added). Con-

sequently, if the non-moving party believes that additional discovery is required, the proper

course is to file a discovery request pursuant to Rule 56(d).9 Id.; see also Shelton, 775 F.3d

at 567–68 (noting that a formal motion is not required to request discovery under Rule 56

and consequently “nothing precludes a party from requesting an opportunity for discovery

under Rule 56(d) by simply attaching an appropriate affidavit or declaration to that party’s

response to a motion for summary judgment”). An adequate discovery request pursuant to

prescription was even necessary or how the failure to treat the condition could lead to fur- ther substantial injury or unnecessary suffering. 9 “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Rule 56(f) became Rule 56(d) after amendment in 2010. Shelton,

. 11 Rule 56(d) “specifies what particular information that is sought; how, if disclosed, it would

preclude summary judgment; and why it has not been previously obtained.” Shelton,

(internal quotation marks omitted). “We have made clear that, in all but the

most exceptional cases, failure to comply with Rule 56([d]) is fatal to a claim of insufficient

discovery on appeal.” Bradley v. United States,

(3d Cir. 2002).

Here, Corizon filed its motion for summary judgment a few days after the City of

Philadelphia defendants’ Rule 12(b)(6) motion was granted. Corizon had previously filed

an answer to Hart’s second amended complaint, but, other than that filing, no other discov-

ery had taken place. The District Court granted Corizon’s motion for summary judgment

because Hart failed to show the existence of facts that would establish a Monell claim

against Corizon. See Natale, 318 F.3d at 583–84 (analyzing a § 1983 inadequate medical

care claim against a private corporation that provides medical care to prisoners under the

municipality liability of Monell). However, Hart argues on appeal—as he did in opposing

Corizon’s motion—that he cannot point to the evidence that the District Court found to be

lacking because he was not afforded discovery to find that evidence in the first place. Ap-

pellant’s Br. 19–20.

While Hart did not file a Rule 56(d) affidavit or declaration, this is one of those

“exceptional circumstances” in which we may excuse Hart’s failure to comply with the

technical requirements of Rule 56(d). See Bradley,

. In opposing summary

judgment, Hart specified the facts he wanted to explore through discovery and explained

why he otherwise lacked access to that information. See Shelton,

. Because

no discovery took place before the District Court granted summary judgment, the District

12 Court abused its discretion in not heeding Hart’s request to allow him to conduct discovery

so that he could present evidence to properly oppose Corizon’s motion. See Radich v.

Goode,

(3d Cir. 1989) (“Whether a district court prematurely grants

summary judgment is reviewed for abuse of discretion.”); Shelton,

(“If

discovery is incomplete, a district court is rarely justified in granting summary judg-

ment[.]” (emphasis added)). Accordingly, we will vacate the District Court’s order on this

issue and remand for further proceedings.

III.

For the foregoing reasons, we will affirm the District Court’s orders granting Dr.

Arnone’s and the City of Philadelphia’s motions to dismiss. However, we will vacate the

District Court’s order granting Corizon’s motion for summary judgment, and will remand

for further proceedings in accordance with this opinion.

13