ALD-007 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2167 ___________

ROBERT ENDRIKAT, Appellant

v.

GEORGE M. LITTLE; DEBOROH L. CARPENTER; MARK WAHL; DAVID CHAPLE; NICOLE ELLIOTT, a/k/a Nicole Cush ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-21-cv-01684) District Judge: Honorable Yvette Kane ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 12, 2023 Before: HARDIMAN, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges

(Opinion filed: December 8, 2023) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se litigant Robert Endrikat, a prisoner in forma pauperis, appeals the District

Court’s dismissal of his third amended complaint. We will summarily affirm.

Endrikat initially filed a 340-page complaint, coupled with 377 pages of exhibits,

against 47 defendants in which he alleged that they violated his constitutional rights

under

by denying him access to programs required for parole eligibility.

Reviewing the complaint under 28 U.S.C. § 1915A, the District Court determined that the

complaint’s excessive length, along with its lack of clarity and specificity, violated the

requirement that a complaint contain a short and plain statement showing that the

plaintiff is entitled to relief. See Fed. R. Civ. P. 8. The District Court therefore

dismissed the complaint with leave to amend, and pointedly advised him about the need

to file a new, freestanding complaint that would refrain from the use of conclusory

statements and set out his claims in short, concise, and plain language.

Endrikat filed an amended complaint. Upon review, the District Court concluded

that it suffered from apparent defects with respect to 40 of the 47 Defendants. The

District Court noted that three Defendants—the Pennsylvania Department of Corrections,

the Pennsylvania Board of Probation and Parole, and State Correctional Institution

Waymart (“Waymart”), where Endrikat was housed during the events at issue in this

proceeding—may not be sued under § 1983, as none of them is considered a “person” for

the purpose of that statute. Additionally, the District Court concluded 37 of the

2 Defendants were subject to dismissal because Endrikat did not claim that they were

personally involved in the alleged violations.

This left only 7 Defendants against whom Endrikat made specific factual

allegations: Chaple, Elliott, Gorman, Gilmartin, McDermott, Kaye and Porosky.

Endrikat alleged that Gorman and Chaple refused to enroll Endrikat in courses required

for parole eligibility, and that Elliot refused to correct his record so that he would be

denied parole. He further alleged that Chaple told him that he would not be

recommended for parole and that Chaple would revoke his scheduled parole hearing and

refuse to enroll him in the necessary courses. Endrikat argued that these actions were in

retaliation for Endrikat’s direct submission of his documents to the parole board.

He also claimed that Gorman, Gilmartin, and McDermott “failed to lower”

Endrikat’s security classification, thereby rendering him ineligible for parole, and refused

to enroll him the necessary courses. He also alleged that Gilmartin fabricated misconduct

charges against him so that there would be a reason to revoke his parole hearing. He

alleged that Kaye and Porosky attempted to retaliate against him and harass him by

giving him a work assignment that he could not do so that they could disciple him and

file a false report against him. He also claimed that Kaye, Gilmartin, Gorman, Elliott,

and McDermott falsely claimed that he had been refusing work and class assignments.

Endrikat further alleged that Chaple told him that he was denied a parole hearing in

March 2020 because he had not completed the required courses, and that McDermott told

3 him in September 2020 that he could not see the parole board. Finally, he claimed that he

was not given adequate time to work on his case in the prison’s law library.

The District Court concluded that Endrikat’s claims against Gorman, Gilmartin,

and McDermott were conclusory and lacked sufficient factual support. It also concluded

that the claims against Kaye and Porosky were flawed because Endrikat failed to state a

prima facie claim of retaliation against them. Likewise, the District Court determined

that Endrikat failed to state a claim regarding law library access because he did not argue

that this alleged lack of access caused an actual injury related to his ability to pursue a

nonfrivolous legal claim. However, the District Court concluded that Endrikat’s claims

against Chaple and Elliott could proceed.

For these reasons, the District Court dismissed without prejudice, and with leave

to amend, Endrikat’s amended complaint with respect to all Defendants except Chaple

and Elliott, with claims against these two Defendants being allowed to proceed if

Endrikat did not file a second amended complaint. But Endrikat filed a 240-page second

amended complaint that came with 309 pages of exhibits and a 12-page memorandum of

law. Again citing Federal Rule of Civil Procedure 8, the District Court dismissed

Endrikat’s second amended complaint because of its excessive length, lack of clarity, and

dearth of details. The District Court denied further leave to amend with respect to

Endrikat’s claims against all Defendants other than Chaple and Elliott, and granted him a

final opportunity to state his claims against these two Defendants. The District Court

4 again cautioned Endrikat to avoid conclusory statements and to provide a complete

complaint that stated his claims in short, plain, and concise language.

Endrikat filed a 73-page third amended complaint, along with 30 pages of exhibits.

In it, Endrikat again included claims against Defendants other than Chaple and Elliott; the

District Court dismissed these claims because it had not granted Endrikat leave to include

them. Turning to the claims against Chaple and Elliott for declaratory relief and money

damages, the District Court noted that Endrikat failed to exhaust his administrative

remedies with respect to monetary relief because he did not request this relief in his

initial grievance, as required by prison policy. The District Court also noted that his

claim for declaratory relief was moot due to his transfer to another prison. It therefore

dismissed his complaint for failure to state a claim, and closed the case. It did not grant

further leave to amend, citing Endrikat’s prior failures to file a complaint that complied

with the Federal Rules of Civil Procedure. Endrikat appealed.

We have jurisdiction pursuant to

. We exercise plenary review

over a district court’s dismissal under

(e)(2)(B). See Allah v.

Seiverling,

(3d Cir. 2000). We may take summary action when no

substantial issue is presented on appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

When reviewing a complaint under §1915A, a district court applies the standard

governing motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6).

See Seiverling,

. To avoid dismissal under this rule, a civil complaint

5 must present “sufficient factual matter” to demonstrate that its claims are facially

plausible. See Ashcroft v. Iqbal,

(2009). This standard requires

stating more than the possibility of the alleged event occurring.

. When

evaluating the plausibility of a claim, a district court must accept as true all factual

allegations and all reasonable inferences that arise from those allegations, viewed in the

light most favorable to the plaintiff.

. Conclusory statements and mere

recitations of the elements of a claim are insufficient to survive a motion to dismiss. See

Bell Atl. Corp. v. Twombly,

(2007).

A plaintiff must also provide a “short and plain statement of the claim showing the

pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). Notwithstanding a liberal

construction of a pro se litigant’s complaint, if it is excessively lengthy and lacks clarity,

it is in violation of this rule and is subject to dismissal. See In re Westinghouse Sec.

Litig.,

(3d Cir. 1996). For this reason, the District Court correctly

dismissed Endrikat’s initial complaint.

Turning to his first amended complaint, we concur with the District Court’s

assessment that Endrikat failed to state a claim with respect to Defendants Pennsylvania

Department of Corrections (“PDOC”), Waymart, and the Pennsylvania Board of

Probation and Parole, as they are not subject to suit under § 1983 See Curtis v. Everette,

(3d Cir. 1973); Thompson v. Burke,

(3d Cir. 1977).

6 Turning to the claims against Defendants Gorman, Gilmartin, McDermott, Kaye,

and Porosky, Endrikat fails to present facts sufficient to support a finding in his favor.

See Twombly,

. The same is true for his lack of access to the courts

claim. See Monroe v. Beard,

(3d Cir. 2008) (noting that to succeed on

a lack of access to the court claim related to a lack of access to a prison law library, a

plaintiff needs to allege that the lack of access to the law library hindered his ability to

pursue a nonfrivolous legal claim). Consequently, dismissal of these claims was

appropriate. Likewise, we concur with the dismissal of the claims against the remaining

Defendants, because Endrikat failed to claim that they were personally involved in the

alleged violations and did not present facts suggesting that they were. See Rode v.

Dellarciprete,

(3d. Cir. 1988) (holding that a defendant cannot be

liable for a § 1983 violation if they were not personally involved in the alleged wrong).

Endrikat’s second amended complaint also warranted dismissal because, like his

initial complaint, it failed to satisfy the requirement for brevity and clarity. See Fed. R.

Civ. P. 8. Finally, regarding his third amended complaint, the District Court correctly

dismissed all claims other than those brought against Chaple and Elliot, because Endrikat

did not have leave from the court to amend those claims. Turning to the claims against

these two Defendants, we again concur with the District Court. Endrikat’s transfer to a

different facility mooted his request for declaratory relief, see Sutton v. Rasheed,

(3d Cir. 2003), and he did not request damages in his initial grievance,

7 thereby failing to exhaust his administrative remedies, even though he sought damages

during the administrative appeal process. See Commonwealth of Pennsylvania,

Department of Corrections, Inmate Grievance System, Policy No. DC-ADM

804(1)(A)(11)(d); Byrd v. Shannon,

(3d Cir. 2013) (“[P]risoners are

required to complete the administrative review process in accordance with rules that are

defined by the prison grievance process.”). Consequently, dismissal was warranted.

Finally, we agree with the District Court that further amendment of Endrikat’s complaint

would be futile. Not only did the District Court repeatedly allow him leave to amend, it

did so with fairly extensive explanations of how to file a complaint that complied with

Rules 8 and 12(b)(6), but to little avail.

For these reasons, we conclude that there is no substantial question presented on

appeal, and will affirm the District Court’s dismissal of Endrikat’s claims. We also deny

his motion for appointment of counsel.

8