NOT PRECEDENTIAL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* ___________

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

2 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

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

3 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,

(3d Cir. 2001).

Appellate jurisdiction under

, the applicable statute here, requires a

“final decision” by a district court.

. “‘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

.’”

at 140

(quoting Carter v. City of Philadelphia,

, 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

4 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.,

(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.

5