09-2690 John R. Oliver v. Jeffrey Beard

DLD-070 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 08-4766; 09-2690
___________
JOHN R. OLIVER,
Appellant
v.
JEFFREY BEARD; FRANKLIN TENNIS; MARIROSA LAMAS; MR. SOWASH; MR.
CAPPARELLE; MR. JEDREJEDZEDEK; MR. WINKLEMAN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Nos. 4:08-cv-00796 & 4-08-cv-01404)
District Judge: Honorable James F. McClure, Jr.
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or for
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 10, 2009
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed: December 23, 2009)
_________
OPINION
_________
PER CURIAM
In these consolidated appeals, John R. Oliver appeals pro se from the District
Court’s orders dismissing his complaints in two related actions in the United States

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District Court for the Middle District of Pennsylvania. (M.D. Pa. Civ. Nos. 08-cv-0796;
08-cv-1404.) Oliver also challenges the District Court’s orders denying him leave to
amend his complaint and his request for counsel in M.D. Pa. Civ. No. 08-cv-0796, as well
as the District Court’s orders denying his request for counsel and “Motion to Stop filing
Fees” in M.D. Pa. Civ. No. 08-cv-1404. For the following reasons, we will summarily
affirm the District Court’s orders. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Oliver is currently incarcerated at the State Correctional Institution at Rockview
(“SCI-Rockview”) in Bellefonte, Pennsylvania. On April 29, 2008, Oliver commenced a
civil rights action pursuant to 42 U.S.C. § 1983 against the following employees of the
Pennsylvania Department of Corrections (the “DOC”): Secretary Jeffrey A. Beard;
Superintendent Franklin J. Tennis; former Deputy Secretary of Centralized Services
Marirosa Lamas; and Dr. Symons, a prison doctor. Oliver also named as defendants
several members of the culinary staff at SCI-Rockview: Mr. Capparelle, Mr. Sowash, Mr.
Jedrejedzedek and Mr. Winkleman. (M.D. Pa. Civ. No. 08-cv-0796.) In addition, Oliver
named three John Doe defendants and one Jane Doe defendant.
In the complaint, Oliver alleged that the defendants violated his Eighth
Amendment rights by failing to properly treat an injury to his wrist. Specifically, Oliver
alleged that, on January 18, 2008, while he was working in the tray room of the culinary
department, he tripped over a cart of trays and fell to the floor. Oliver claimed that he

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Oliver appealed from the District Court’s order dismissing his claims against these1
defendants, but we dismissed his appeal on the ground that the District Court’s order was
not appealable at that time. (C.A. No. 08-3404.)
3
suffered a hairline fracture to his wrist as a result of the fall, and that the treatment he
received for his injury was inadequate. Oliver further claimed that defendant Lamas failed
to address certain concerns that he had raised about the safety of the tray room before his
accident.
The matter was referred to a Magistrate Judge who recommended that the court
dismiss Oliver’s claims against all defendants except Dr. Symons for failure to state a
claim upon which relief could be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Oliver filed
objections to the Magistrate Judge’s Report and Recommendation as well as a motion to
amend his complaint. By order entered June 16, 2008, the District Court adopted the
report and recommendation, dismissed Oliver’s claims against all defendants but Dr.
Symons, and denied Oliver’s motion to amend his complaint. As a result, the case1
proceeded against Dr. Symons only.
The following month, on July 28, 2008, Oliver filed a second complaint in the
District Court. (M.D. Pa. Civ. No. 08-1404.) In this complaint, Oliver raised the same
claims against the same defendants, with one exception—he did not name Dr. Symons in
the second action. Otherwise, however, the complaints in Civ. No. 08-cv-0796 and Civ.
No. 08-cv-1404 were nearly identical. By order entered September 10, 2008, the District
Court dismissed Oliver’s second complaint for the reasons stated in its order dismissing

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Oliver later filed a motion for reconsideration, which the District Court dismissed as2
untimely. See Fed. R. Civ. P. 59(e). Oliver has not appealed from the District Court’s
order.
We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the3
District Court’s legal determinations. See Lubrizol Corp. v. Exxon Corp., 929 F.2d 960,
4
the same claims against the same defendants in Civ. No. 08-cv-0796. See 28 U.S.C. §
1915(e)(2)(B)(ii).
Meanwhile, Oliver’s first action proceeded against Dr. Symons. During this time,
Oliver filed at least four motions for appointment of counsel. The Magistrate Judge
denied each request. Oliver appealed the Magistrate Judge’s decision on his fourth
motion to the District Court, but the court agreed with the Magistrate Judge that counsel
was not warranted. See Tabron v. Grace, 6 F.3d 147, 155–58 (3d Cir. 1993).
In November 2008, Dr. Symons moved to dismiss the complaint on the ground that
it failed to state an Eighth Amendment claim against him. See Fed. R. Civ. P. 12(b)(6).
Soon thereafter, Oliver again sought leave to amend his complaint. The Magistrate Judge
recommended that the District Court deny Oliver’s motion for leave to amend his
complaint and grant Dr. Symons’s motion to dismiss. The District Court agreed, and, by
order entered March 25, 2009, adopted the Magistrate Judge’s Report and
Recommendation, denied Oliver’s motion to amend the complaint, and granted Dr.
Symons’s motion to dismiss.2
Oliver now appeals from the District Court’s orders in actions 08-cv-0796 and 08-
cv-1404.3

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962 (3d Cir. 1991).
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II.
A. M.D. Pa. Civ. No. 08-cv-0796
First, we conclude that the District Court properly dismissed the claims against
defendants Beard, Tennis, Jedrejedzedek, Winkleman, and Sowash, as well as the claims
against the John Doe and Jane Doe defendants, in Oliver’s first complaint. As the District
Court and Magistrate Judge explained, Oliver did not allege that any of these defendants
were personally involved in the alleged misconduct, as he must in order to hold them
liable under §1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
(stating that liability under § 1983 may not be based on the doctrine of respondeat
superior). We further conclude that the District Court properly dismissed the claim
against defendant Capparelle because his alleged misconduct does not rise to the level of
an Eighth Amendment violation. According to Oliver, defendant Caparelle removed him
from his work assignment after his fall, took him into his office, and called the medical
department to take him in for an evaluation. As the District Court explained, these
allegations do not support an Eighth Amendment claim because they do not indicate that
defendant Caparelle acted with “deliberate indifference” toward a “substantial risk of
serious harm to an inmate.” See Farmer v. Brennan, 511 U. S. 825, 832 (1994).
Similarly, Oliver’s allegations against defendant Lamas—that she had failed to address
the safety concerns that Oliver had brought to her attention—do not state an Eighth

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Amendment claim. See id.
Next, we conclude that the District Court did not err in denying Oliver leave to
amend his complaint. With respect to Oliver’s first request, the District Court correctly
concluded that amendment would have been futile because the proposed amended
complaint suffered from the same defects as his initial complaint. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (noting that dismissal of case
without leave to amend is proper when amendment would be futile). Concerning Oliver’s
second request, dismissal was proper because Oliver failed to attach a proposed amended
complaint to his motion. See Ranke v. Sanofi-Synthelabo, Inc., 436 F.3d 197, 206 (3d
Cir. 2006) (holding that failure to submit a draft amended complaint is fatal to a request
for leave to amend).
We also conclude that the District Court acted within its discretion in denying
Oliver’s motion seeking appointment of counsel because, even assuming that Oliver’s
claim against Dr. Symons had arguable merit, none of the remaining Tabron factors
weighed in favor of appointing counsel. 6 F.3d at 155. For example, the issues in the
case were not particularly complex, and Oliver had demonstrated that he was an able
litigator. See id.
Finally, we conclude that the District Court properly granted Dr. Symons’s motion
to dismiss. As the court noted, Oliver’s allegations reveal that he received ongoing
medical care for his injury, including an x-ray of his wrist, a sling to support his arm, and

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In this order, the District Court also dismissed as moot Oliver’s outstanding motions4
for appointment of counsel and to “stop filing fees.” Given our determination that the
District Court’s decision to dismiss the complaint was proper, its decision to deny these
motions as moot was also proper.
After the District Court entered its order dismissing Oliver’s complaint, Oliver filed a5
renewed motion for appointment of counsel and a motion for a temporary restraining
order. By order entered October 11, 2009, the District Court referred these motions to
this Court. These motions are denied.
7
medications to manage his pain. Although Oliver alleged that this treatment was
inadequate, disagreement over the proper course of treatment does not amount to a
constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
B. M.D. Pa. Civ. No. 08-cv-1404
As noted above, the District Court dismissed Oliver’s second complaint on the
ground that it merely repeated claims that the court had previously dismissed in Civ. No.
08-cv-0796. We have reviewed the complaint filed in 08-cv-1404, and agree with the
District Court that it contains the same claims against the same defendants at issue in
Civ. No. 08-cv-0796. As discussed above, the District Court’s dismissal of those claims
was proper. Therefore, the District Court’s order dismissing Oliver’s second complaint
was likewise proper.4
Accordingly, we will summarily affirm the District Court’s orders.5

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