Rev. Augustus Simmons Enoch v. David Perry

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1059
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REV. AUGUSTUS SIMMONS ENOCH,
Appellant,
v.
DAVID PERRY; J. SAWTELLER; LISA LAMOREAUX; SUTTERLANDER;
DEPUTY SECRETARY TREVOR A. WINGARD; TRACY SMITH; REV. ULRICH
KLEMM; DEBRA S. RAND; DAN LEE; ROBERT MAXA; KIMBERLY SMITH;
GARY PRINKEY; KATHLEEN HILL; BONNE E. BELL; ANDREW LESLIE;
HEATHER KELLERMAN; CHAPPLON REV. SHAFFER; CHAPLLON REV.
SIBANDA
Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 1-19-cv-00026)
Magistrate Judge: Honorable Richard A. Lanzillo
Argued on June 8, 2023
Before: HARDIMAN, AMBRO, and FUENTES, Circuit Judges
(Opinion Filed: July 24, 2023)
Isabelle Aubrun (Argued)
Emily P. Davis
Mary E. Levy
Joshua K. Tufts
Marshall P. Wilkinson, IV
Temple University
Beasley School of Law
1719 N. Broad Street
Philadelphia, PA 19122

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Jessica Rickabaugh
Tucker Law Group
1801 Market Street
Ten Penn Center, Suite 2500
Philadelphia, PA 19103
Counsel for Appellant
Abby N. Trovinger (Argued)
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Counsel for Appellees David Perry, et al.
Samuel H. Foreman
Keanna A. Seabrooks (Argued)
Weber Gallagher Simpson Stapleton Fires & Newby
Four PPG Place
5th Floor
Pittsburgh, PA 15222
Counsel for Appellees Lisa Lamoreaux, Robert Maxa,
Andrew Leslie
OPINION*
AMBRO, Circuit Judge
Augustus Simmons Enoch (“Simmons”), an inmate in the Pennsylvania prison
system, alleges that various prison officials violated his rights under the Eighth
* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute
binding precedent.

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Amendment, First Amendment, and Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. He appeals the District Court’s orders
granting summary judgment for fourteen defendants employed by the Pennsylvania
Department of Corrections (“DOC Appellees”) and four medical professional defendants
(“Medical Appellees”).1 Because the District Court did not issue a final order disposing
of all the claims Simmons brought, we dismiss his appeal for lack of appellate
jurisdiction.
I.
Our jurisdiction to decide an appeal from a district court typically requires that it
issue a final order. See 28 U.S.C. § 1291. That requires judgment on all claims for all
parties. See Fed. R. Civ. P. 54(b) (“[A]ny order . . . that adjudicates fewer than all the
claims or the rights . . . of fewer than all the parties does not end the action as to any of
the claims or parties.”). The rule allows an exception: the court may certify that a
judgment is final if it “expressly determines that there is no just reason for delay.” Id.
But the District Court here did not issue that express certification.
Tracing the claims from Simmons’ operative complaint through to the District
Court’s orders resolving summary judgment motions, we see that a few claims remain.
The operative complaint contains the following six counts:
1 The DOC Appellees are Bonne E. Bell, Kathleen Hill, Heather Kellerman, Ulrich
Klemm, Dan Lee, David Perry, Gary Prinkey, Debra Rand, J. Sawteller, Chaplain Rev.
Shaffer, Chaplain Rev. Sibanda, Kimberly Smith, Tracy Smith, and Trevor Wingard.
The Medical Appellees are Andrew Leslie, Robert Lawrence Maxa, and William
Sutherland (mistakenly referenced as Sutterlander throughout the docket). Simmons
withdrew his appeal as to Lisa Lamoreaux. Simmons Reply Br. 6 n.1.

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Count Defendants Type of Claim Raised
I Perry, Lee, Sawteller, Lamoreaux,
Sutherland, Maxa, Hill, Bell, K.
Smith, Prinkey, Leslie, Kellerman
8th Amendment deliberate indifference;
8th Amendment excessive force (against
DOC Appellees only)
II Maxa, Sutherland, Leslie, Lee,
Perry
Conspiracy to commit 8th Amendment
violations (against Perry); retaliation
(against the other Appellees)
III Sawteller, Kellerman, Hill, Bell,
Lee
Failure to protect, failure to supervise,
supervisory liability for 8th Amendment
violations
IV Wingard, T. Smith, Klemm, Rand,
Shaffer, Sibanda
1st Amendment right to express/practice
religion
V Shaffer, Klemm, T. Smith, Rand,
Wingard
Conspiracy to commit 1st Amendment
violations/free exercise
VI2 Shaffer, Sibanda, Klemm, T. Smith,
Rand, Wingard
RLUIPA
The DOC Appellees moved to dismiss all claims, which the District Court granted
in part. It ordered that “[t]he [Defendants’] motion to dismiss is DENIED as to
all . . . claims” other than “Plaintiff’s purported class action claims, . . . claims against the
DOC Defendants in their official capacities, . . . [and an] excessive force claim in Count
I” relating to a pepper spray incident on September 25, 2018. App. 430. As a result of
this order, multiple counts were still live at the summary-judgment stage: a deliberate
indifference claim under Count I; an excessive force claim under Count I separate from
the September 25th incident; and all of Counts II-VI.3
2 Simmons incorrectly lists two separate Count Vs in his amended complaint. The
District Court, in its opinion on the DOC Appellees’ motion to dismiss, construes the first
as Count V and the second as Count VI. D.I. 101 at 5. We do the same here.
3 The District Court’s opinion said that it was going to dismiss Counts II and III. But it
did not do so in its order. In the face of such a conflict, the text of the order controls. See
Fed. R. App. P. 3(c)(1)(B) (directing appellants to designate the “judgment” or
“appealable order”—not the opinion—from which appeal is taken); see also Blunt v.

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Later, when resolving the parties’ motions for summary judgment, the Court
mistakenly thought it had resolved even more claims at the motion-to-dismiss stage. In
describing the remaining claims in its summary judgment opinion for the DOC
Appellees, the Court incorrectly stated that it had previously dismissed “all of Simmons’
claims against the DOC Defendants except . . . an Eighth Amendment excessive force
claim,” which was brought under Count I; “an Eighth Amendment deliberate indifference
claim,” also brought under Count I; “a First Amendment free exercise of religion claim,”
brought under Count IV; and “a claim under . . . RLUIPA,” brought under Count VI.
App 22. This statement suggests that only Counts I, IV, and VI were still in play at
summary judgment, yet Counts II, III, and V also remained. Thus, even though the
District Court granted summary judgment for the DOC Appellees, it did so too narrowly
by leaving Counts II, III, and V unaccounted for.
A remaining question is what about Tracy Smith, one of the DOC Appellees.
Simmons brought claims against her in Counts IV, V, and VI. The order granting
summary judgment for the DOC Appellees, however, does not mention Smith at all
despite listing all thirteen other DOC Appellees. We thus find no final disposition as to
claims against her and thus no final judgment against all parties. Fed. R. Civ. P. 54(b).4
Lower Merion Sch. Dist., 767 F.3d 247, 303 n.73 (3d Cir. 2014) (“Appeals are taken from
judgments, not opinions.”).
4 Finally, we note that not all parties consented to jurisdiction by a magistrate judge. The
record lacks consent from defendants Bell, Hill, Kellerman, Lee, Prinkey, Shaffer,
Sibanda, K. Smith, T. Smith, Leslie, and Maxa. Although some defendants consented, 28
U.S.C. § 636(c)(1)’s consent requirement applies to “any party directly affected by an
order or a judgment issued by that magistrate judge.” Burton v. Schamp, 25 F.4th 198,

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* * *
In this context, we dismiss Simmons’ appeal for lack of appellate jurisdiction
because the District Court did not resolve his claims under Counts II, III, and V, nor did it
resolve any claims against defendant Tracy Smith.
209 (3d Cir. 2022). These parties cannot submit a consent form now because post-
judgment consent does not satisfy the requirement. Id. at 212. The District Court should
consider whether the parties impliedly consented to adjudication by a magistrate judge,
see id. at 209-10, or whether review by a district judge is necessary, see 28 U.S.C.
§ 636(b)(1)(C).

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