BLD-224

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1892
___________
ISAAC MITCHELL,
Appellant
v.

JEFFREY A. BEARD, PH.D., individually and in his official capacity as Secretary of

Corrections; LOUIS S. FOLINO, individually and in his official capacity as SCI-Greene
Superintendent; CORRECTIONAL OFFICER RAMBLER, individually and in his
official capacity; COUNSELOR HARRIS, (JOHN DOE) individually and in his official
capacity; DR. JIN, (JOHN DOE); DR. JOHN DOES 1 AND 2; JANE AND JOHN
DOES SPECIALIST AND EXPERTS 3, 4, 5; JANE AND JOHN DOES; DR.
CANTINO;
DR. FOSTER; NURSE WRESTLER; NURSE 6, in their individual and official capacity;
CORRECTIONAL OFFICER DOES; DEPUTY MILLER; CUMBERLAND;
WILLIAMS; BLACK; SHIRA; LT. WORKMAN, in their individual and official
capacity; JANE AND JOHN DOES 7, 8, 9 AND 10, in their individual and official
capacity
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Civil No. 2:09-cv-00972)
District Judge: Honorable Terrence F. McVerry
____________________________________
Submitted on Appellants Motion to Reopen, Appellants Application to Proceed In
Forma Pauperis, Appellants Motion for Appointment of Counsel, and for Possible
Dismissal Pursuant to 28 U.S.C. 1915(e)(2)(B) or Summary Action Pursuant to Third
Circuit LAR 27.4 and I.O.P. 10.6
July 12, 2012
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Opinion filed July 19, 2012)

_________
OPINION
_________
PER CURIAM
On July 20, 2009, Isaac Mitchell, a capital inmate incarcerated at the State
Correctional Institution at Greene, Pennsylvania (SCI-Greene), commenced this civil
rights action pro se pursuant to 42 U.S.C. 1983. Mitchell named as defendants
numerous current and former Pennsylvania Department of Corrections employees (DOC
defendants), medical personnel at SCI-Greene (medical defendants), and two additional
corrections officers employed at SCI-Greene (additional DOC defendants).1
I.
Mitchell alleged that he fell on June 13, 2001, because Officer Rambler failed to
properly escort him up a flight of stairs. According to Mitchell, as a result of the fall, he
suffered serious physical and mental injuries. Mitchell further alleged: (1) Counselor
Harris failed to report the incident and failed to provide Mitchell with proper information
regarding DOC paralegal services; (2) the medical defendants provided improper medical
treatment for his injuries; (3) Deputy Miller, Cumberland, and Williams assaulted

The DOC defendants consist of Secretary Beard, Superintendent Folino, Officer

Rambler, Counselor Harris, Deputy Miller, Cumberland, Williams, and Lt. Workman.
The medical defendants consist of Dr. Jin and Nurse Wrestler. The corrections officers
are Officer Black and Officer Shira.
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Mitchell on an unspecified date while on transportation duty, injuring Mitchells left

knee; (5) on August 2, 2007, Officers Black and Shira refused to provide Mitchell with a
wheelchair, forced him to instead use his walker, watched him fall and sustain injuries,
and did not thereafter secure for him proper medical treatment; (6) Lt. Workman was
notified of the August 2, 2007 incident but did nothing, supporting a conspiracy of
silence; and (7) Secretary Beard, Superintendent Folino, and Dr. Jin were derelict in
their duty to insure Mitchells constitutional rights and supported a conspiracy of
silence.
In 2006, Mitchell brought a civil rights claim, alleging the same underlying facts.
See Lopez, et al. v. Falor, et al., No. 2:06-cv-00409, 2007 WL 2758034 (W.D. Pa. 2007).
In that case, the District Court dismissed Mitchells complaint in its entirety in
accordance with the screening provisions set forth in the Prison Litigation Reform Act
(PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. 1915A(b)
(granting federal courts authority to sua sponte screen and dismiss civil rights claims
brought by prisoners if the claims are frivolous, malicious, or fail[] to state a claim upon
which relief can be granted), 1915(e)(2)(B) (requiring screening where prisoner
proceeds in forma pauperis); 42 U.S.C. 1997e(c)(1) (requiring screening where prisoner
brings claim with respect to prison conditions, including medical conditions). Mitchell
did not appeal the decision of the District Court.

Over the course of this current litigation, Mitchell has moved for the appointment
of counsel numerous times. Mitchell filed motions seeking the appointment of counsel on
November 12, 2009, and December 7, 2009. The magistrate judge denied these motions.
On January 7, 2010, Mitchell filed a motion requesting an immediate competency hearing
and the appointment of an attorney as guardian ad litem. The magistrate judge denied this
motion on the merits, concluding that the psychiatric and medical evaluations
demonstrated that Mitchell was mentally competent, but noted the courts inference that
it was another attempt to secure the appointment of counsel. Thereafter, Mitchell filed
two supplemental motions for reconsideration of his motions for appointment of counsel,
on September 30, 2011, and October 14, 2011. The magistrate judge denied these
motions.
The DOC defendants and the medical defendants filed separate motions to dismiss
on numerous grounds, including that Mitchells claims were barred by the statute of
limitations and the doctrine of res judicata and that Mitchell failed to allege personal
involvement against Beard, Folino, Jin, and Workman. The magistrate judge
recommended that the motions be granted in their entirety. The District Court granted the
motions to dismiss.
The additional DOC defendants filed a motion for summary judgment on the
ground that there was no evidence of record that Black or Shira was deliberately
indifferent to a serious medical need either prior to or after Mitchells August 2, 2007

fall. The magistrate judge recommended that summary judgment be granted. The District
Court granted the additional DOC defendants summary judgment.
Mitchell timely appealed, and the appeal was docketed in this Court on April 3,
2012, but was dismissed by our Clerk on May 22, 2012, for failure to timely pay the
appellate docketing fees. See Fed. R. App. P. 3(a); 3d Cir. LAR 3.3; 3d Cir. LAR Misc.
107.1(a). Mitchell filed a motion to reopen, a motion to proceed in forma pauperis, and a
motion for appointment of counsel.
We will grant the motion to reopen. Mitchell filed the motion to reopen on May
23, 2012, just one day after the Clerk dismissed his appeal, averring that he had not
received the necessary paperwork from the prison administration staff to complete his
application to proceed in forma pauperis in sufficient time to meet the fourteen-day filing
deadline. See 3d Cir. LAR Misc. 107.1(a). Mitchells motion to reopen was timely, and
we find that he has shown good cause. 3d Cir. LAR Misc. 107.2(a). We will also grant
the motion to proceed in forma pauperis. Mitchells prison account statement as well as
his affidavit of assets and income reflect an inability to prepay the entire appellate
docketing fee. 28 U.S.C. 1915(a)(1).
Accordingly, we must consider whether this appeal should be dismissed pursuant
to 28 U.S.C. 1915(e)(2) or whether summary action is appropriate pursuant to local

rule. 3d Cir. LAR 27.4; I.O.P. 10.6.2 We will summarily affirm the District Court because
no substantial question is presented by this appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. 1291. We review a
district courts decision to deny a request to appoint counsel for an abuse of discretion.
Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993) (citing Rayes v. Johnson, 969 F.2d 700,
704-05 (8th Cir. 1992)). Our review of a district courts dismissal for failure to state a
claim is plenary. Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454 F.3d 120, 124 (3d
Cir. 2006). We must accept as true all of the factual allegations contained in the
complaint and draw reasonable inferences in favor of the plaintiff. See Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive dismissal, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).We also exercise plenary review of the
District Courts grant of the defendants motion for summary judgment. DeHart v. Horn,
390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is proper where, viewing the
evidence in the light most favorable to the nonmoving party and drawing all inferences in
favor of that party, there is no genuine issue of material fact, and the moving part is

The Clerks order referring Mitchells motions to this panel also provided that, in the
event his motion to proceed in forma pauperis was granted, this panel would review his
appeal for possible dismissal or summary action. Mitchell was afforded fourteen days
from the date of the order within which he could submit argument. Mitchell has not
6

entitled to judgment as a matter of law. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23
(3d Cir. 2006); Fed. R. Civ. P. 56(a).

III.
First, we will summarily affirm the orders of the District Court denying Mitchells
motions requesting appointment of counsel. The appointment of counsel is left to the
discretion of the district court. Tabron, 6 F.3d at 155-58 (compiling a non-exhaustive list
of factors to be considered by the court on a case-by-case basis). Here, the District Court
determined that because this case was still in the early stages of litigation; because the
factual and legal merits of the case were still unclear; because there would not likely be
complex credibility determinations; and because the litigation would not likely impact
other prisoners, it was premature to request an attorney to represent Mitchell but noted
that it would reconsider in the event his case proceeded to trial. We find no abuse of
discretion.
IV.
We will also summarily affirm the order granting the motions to dismiss filed by
the DOC defendants and the medical defendants. The District Court relied on several
appropriate grounds, but as we may affirm on any grounds supported by the record, see

responded.
7

Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001), we will limit our discussion to the
following.
A.
In actions under 42 U.S.C. 1983, federal courts apply the state's statute of
limitations for personal injury. Sameric Corp. of Del. v. City of Phila., 142 F.3d 582,
599 (3d Cir. 1998) (citing Wilson v. Garcia, 471 U.S. 261, 276-78 (1985)). In
Pennsylvania, the relevant statute of limitations is two years. 42 Pa. Cons. Stat. Ann.
5524. Therefore, Mitchells claims are subject to a two-year statute of limitations.
A federal claim accrues as soon as a potential claimant is aware, or should be
aware, of the existence of and source of injury. United States v. Kubrick, 444 U.S. 111,
122-23 (1979); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir. 1988),
abrogated on other grounds by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997). There is
little doubt that Mitchell was aware on or about June 13, 2001, that he had suffered an
injury and that he knew the alleged source of the injury. However, less clear is the date
by which Mitchell should have known that the medical treatment he received was further
injurious to him. Due to the paucity of detail in Mitchells complaint, it is similarly
difficult to identify when he knew or should have known of any injury resulting from the
alleged assault by Miller, Cumberland, and Williams.
Nevertheless, Mitchell was sufficiently aware of his initial injury, the subsequent
medical treatment, and the alleged assault prior to January 12, 2006, the date on which he

commenced his previous civil rights action alleging the same underlying facts.3 Affording
Mitchell every benefit of the doubt, therefore, it was incumbent upon him to file his
present claim no later than January 14, 2008.4 Mitchell commenced this current action on
July 20, 2009. Consequently, all claims, except those directed against the additional DOC
defendants, are time-barred.5
B.
There is one possible exception. Mitchell alleges that Beard, Folino, Jin, and
Workman supported a conspiracy of silence and failed to insure Mitchells
constitutional rights. The time period to which Mitchell ascribes his allegations directed
toward these defendants is not clear from his complaint. We interpret Mitchells
allegations to include alleged conduct occurring contemporaneous to both the June 13,
2001 and August 2, 2007 incidents. Conduct contemporaneous to the 2007 incident
would not be time-barred. Therefore, to the extent Mitchell alleges injurious conduct
arising from this later incident, we note the following.
A[n individual government] defendant in a civil rights action must have personal
involvement in the alleged wrongdoing; liability cannot be predicated solely on the

In his original claim, the perpetrators of the alleged assault were not identified.
January 12, 2008, fell on a Saturday. See Fed. R. Civ. P. 6(a)(1)(C).
5
The District Court addressed Mitchells argument that the statute of limitations should
be tolled. According to Mitchell, the defendants engaged in a conspiracy of silence that
worked to conceal his injuries. As properly determined by the District Court, in light of
Mitchells previous complaint, this argument is devoid of merit. We note further that
Mitchell is precluded from relitigating these claims under the doctrines of collateral
estoppel, Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1074 (3d. Cir. 1990), and
9
4

operation of respondeat superior. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). A plaintiff must
allege personal direction or actual knowledge and acquiescence.Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (quoting Rode, 845
F.2d at 1207). Here, Mitchell does not allege that these DOC defendants were personally
responsible for the injuries he incurred. Rather, Mitchell merely alleges that these DOC
defendants were derelict in their duty to protect his constitutional rights. Essentially,
Mitchell alleges that they are liable for improperly supervising those directly responsible
for his injuries. Such allegations are not sufficient to state a claim.6 Evancho, 423 F.3d at
353.
V.
Finally, we will summarily affirm the order granting summary judgment to the
additional DOC defendants. To state a claim under the Eighth Amendment for denial of
medical care, an inmate-plaintiff must allege that (1) the defendant was deliberately
indifferent to his medical needs and (2) those needs were serious. Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

res judicata. Swineford v. Snyder Cnty. Pa.,15 F.3d 1258 (3d Cir. 1994).
6
Mitchells parallel assertions that these DOC defendants supported a conspiracy of
silence are bald and conclusory, and we reject them. In order to properly plead an
unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial
agreement can be inferred. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615
F.3d 159, 178 (3d Cir. 2010) (citing D.R. v. Middle Bucks Area Vocational Tech. Sch.,
972 F.2d 1364, 1377 (3d Cir. 1992)). Mitchell failed to do so. Unlike factual assertions,
mere conclusions are not entitled to the presumption of truth. Great W. Mining & Mineral
10

Deliberate indifference occurs when [an] official knows of and disregards an

excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Mere negligence is not sufficient. See Estelle, 429 U.S. at 106. Rather, deliberate
indifference comprises a conscious disregard of a serious risk. Rouse, 182 F.3d at 197.
A medical need is serious if it has been diagnosed by a physician as requiring
treatment, or if it is so obvious that a lay person would easily recognize the necessity
for a doctor's attention. Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003)
(quoting Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987). A medical need is also serious where denial of treatment would result in the
unnecessary and wanton infliction of pain or a life-long handicap or permanent loss.
Atkinson, 316 F.3d at 273 (internal quotations and citations omitted).
Here, Mitchell failed to establish an issue of material fact that he had a serious
medical need to which these defendants were deliberately indifferent. There was no
record evidence suggesting that Black or Shira knew or should have recognized that
Mitchell required a wheelchair. To the contrary, Mitchells medical records did not
indicate that a wheelchair was necessary. Black and Shira inquired as to whether Mitchell
needed a wheelchair, but a nurse specifically informed them that Mitchell could not have
a wheelchair for transport. While Mitchell periodically borrowed a wheelchair, he did not

Co., 615 F.3d at 178 (citing Iqbal, 556 U.S. at 680-81).

11

have his own. Rather, Mitchell owned and often used a walker. Based on this record
evidence, summary judgment was appropriate.7
VI.
For the foregoing reasons, we will summarily affirm the judgment of the District
Court. In light of this, we will deny Mitchells motion for the appointment of counsel.

Mitchell conceded during his deposition that Black and Shira acted appropriately
following his fall in securing medical treatment for him.
12