Keith Alexander v. Thomas McGinley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2880
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KEITH ALEXANDER,
Appellant
v.
THOMAS MCGINLEY; KATHY BISCO; JUSTIN AGOSTA; LINDSAY NYE
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3:20-cv-02226)
District Judge: Honorable Malachy E. Mannion
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 13, 2023
Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges
(Opinion filed )
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OPINION*
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PER CURIAM
Keith Alexander, proceeding pro se, appeals an order of the United States District
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Court for the Middle District of Pennsylvania granting defendants’ motion to dismiss his
complaint. For the reasons that follow, we will affirm the judgment of the District Court.
Alexander, a state prison inmate, filed a complaint pursuant to 42 U.S.C. § 1983
against four prison employees, seeking compensatory and punitive damages and
injunctive relief for alleged violations of the Eighth and Fourteenth Amendments. Dkt.
No. 50 at 7. Alexander alleged that, while he was working in the prison commissary, a
fellow inmate’s cart slashed his Achilles tendons, and the employees “knew or should
have known” the circumstances could cause severe injury. Dkt. No. 50 at 3-6. Before
the defendants were served, Alexander filed a motion to subpoena his medical records,
which the District Court dismissed as premature. Dkt. Nos. 6 & 18. After the defendants
moved to dismiss Alexander’s complaint, he filed a motion to amend. Dkt. Nos. 40 &
50. He twice sought appointment of counsel. Dkt. Nos. 2 & 38.
The District Court denied Alexander’s motions for appointment of counsel,
granted his motion to amend and defendants’ motion to dismiss, and dismissed his
amended complaint. Dkt. Nos. 7, 5, 85. Alexander filed this timely appeal.
We have jurisdiction under 28 U.S.C. § 1291. We review the denial of
Alexander’s discovery request and motions for appointment of counsel for abuse of
discretion. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997); In re Fine Paper
Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). We exercise de novo review over the
District Court’s grant of a motion to dismiss. Castleberry v. STI Grp., 863 F.3d 259, 262-
63 (3d Cir. 2017).

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On appeal, Alexander contends that the District Court abused its discretion in
dismissing without prejudice his motion to subpoena his medical records. According to
Fed. R. Civ. P. 37(a)(1), a party may request that the court intervene in discovery only if
he has “in good faith conferred or attempted to confer” with the party that has failed to
make the requested disclosure. As the District Court correctly explained, Alexander’s
motion was premature: the defendants had not yet been served, so they had not yet been
given the opportunity to comply with discovery requirements, and Alexander could not
have attempted to confer with them.
Alexander also asserts that the District Court erred in ruling on defendants’ motion
to dismiss without first directing a Magistrate Judge to submit a recommendation on the
motion.1 However, the Federal Magistrates Acts states that “a [district court] judge may
designate a magistrate judge” to take certain actions, including submitting a
recommendation on a dispositive motion; a judge is not required to do so. See 28 U.S.C.
§ 636(b)(1)(A-B) (emphasis added). Alexander also made no request to the District
Court regarding a recommendation from a Magistrate Judge.2
1 As to Alexander’s argument that a Magistrate Judge should have made a
recommendation regarding his motion to amend, C.A. Dkt. No. 10 at 14-17, because
Alexander’s motion was granted, we do not have appellate jurisdiction over an appeal
from this order, see McLaughlin v. Pernsley, 876 F.2d 308, 313 (3d Cir. 1989) (“In order
to have standing to appeal a party must be aggrieved by the order of the district court
from which it seeks to appeal.”).
2 To the extent Alexander asserts that the District Court’s adverse ruling on the motion to
dismiss demonstrates judicial bias, C.A. Dkt. No. 10 at 14 & 16-17, we note that “judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion,” Liteky
v. United States, 510 U.S. 540, 555-56 (1994). Nothing here indicates an exception to
that proposition.

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Alexander may have forfeited a specific challenge to the District Court’s dismissal
of his Eighth Amendment claim by failing to raise an argument about the merits of the
claim in his brief. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d
136, 145-47 (3d Cir. 2017). Regardless, the District Court was correct to dismiss
Alexander’s claim because it rested on principles of negligence, which does not satisfy
the state of mind required to establish a violation of the Eighth Amendment. See Thomas
v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (requiring a plaintiff to show that officials
“actually knew of and disregarded constitutional violations” to state an actionable Eighth
Amendment claim) (citation omitted).
As to Alexander’s argument that the District Court abused its discretion by
denying his motions for appointment of counsel, C.A. Dkt. No. 10 at 4 & 7-12, we
disagree. In deciding whether to appoint counsel, a court must first determine whether
the litigant’s case has arguable merit. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993). As discussed, Alexander’s claims were without merit, so the District Court was
correct in its denials.
Accordingly, we will affirm the judgment of the District Court.3
3 We deny Alexander’s motions requesting that we dismiss Appellees’ brief as untimely
or rescind the Clerk’s order granting Appellees’ request for an extension of time to file a
brief. C.A. Dkt. Nos. 20, 21, 22, 24.

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