DLD-341                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-1844
                                  ___________

                              KEITH ANDERSON,
                                         Appellant

                                        v.

 LOUIS FOLINO, SUPERINTENDENT; VICTOR SANTOYA; BOGDEN; NELSON;
    STUMP; RUSH; DUKE; BOWMAN; RICK SHAFFER; RAUENSWINDER;
    KERFELT; WILSON; DONNA DOE; ROXANNE DOE; MEGA; TANNER;
       MICHELE HOWARD-DIGGS; WALTERS; GRIM; JOHN MCNANY
                 ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                          (D.C. Civil No. 10-cv-00937)
                  District Judge: Honorable Gary L. Lancaster
                  ____________________________________

      Submitted 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 18, 2013

           Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                          (Opinion filed: July 30, 2013)

                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Keith Anderson appeals the District Court’s order granting Appellees’ motions for

summary judgment. For the reasons below, we will summarily affirm the District

Court’s order.

       Because we write primarily for the parties and the District Court thoroughly set

forth the factual and procedural background in its opinion, we will limit our discussion to

the facts that are helpful to our analysis. Anderson, a prisoner proceeding pro se, filed a

civil rights complaint. After Appellees’ motions to dismiss were granted in part,

Anderson filed an amended complaint and then a second amended complaint. After

discovery, Appellees filed motions for summary judgment. The Magistrate Judge

recommended that the motions be granted. The District Court adopted the Report and

Recommendation as its opinion and granted the motions. Anderson then filed his

objections to the Report and Recommendation and a motion to amend or alter the

judgment. The District Court reviewed the belated objections and denied the motion to

amend or alter the judgment. Anderson filed a notice of appeal. Appellee Howard-Diggs

has filed a motion for summary affirmance.

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

order granting summary judgment de novo and review the facts in the light most

favorable to the nonmoving party. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d

Cir. 2011). A grant of summary judgment will be affirmed if our review reveals that
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“there is no genuine dispute as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       In his response to the summary judgment motions, Anderson did not discuss the

merits of any of his claims. He simply argued that the Appellees’ motions addressed the

first amended complaint instead of the second amended complaint. He did not specify

any claims which had not been addressed or contest any of the Appellees’ evidence. He

did not respond to or dispute the Appellees’ Concise Statements of Material Facts.

       Despite Anderson’s limited response, the Magistrate Judge thoroughly described

and addressed his claims in her Report and Recommendation. She noted that she would

not address any claims which had been dismissed with prejudice in the earlier order. In

his objections to the Report and Recommendation, Anderson repeated the same

arguments he made in opposition to the summary judgment motions. He also challenged

the Magistrate Judge’s determination that his lack of response to the concise statements

should be considered an admission of the facts therein. He again did not discuss the

merits of his claims or dispute any specific factual statements by the Appellees. The

District Court adopted the Report and Recommendation and granted summary judgment

to Appellees.

       On appeal, Anderson repeats his argument that the Appellees addressed the wrong

complaint. He admits that he failed to respond to Appellees’ Concise Statements of




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Material Facts. He has not pointed to any mistake made by the District Court in

evaluating his claims or disputed any of the facts in the Appellees’ Concise Statements.

      A review of the procedural history of Anderson’s claims indicates that his claims

have been appropriately addressed. In his original complaint, Anderson brought claims

against twenty defendants. The District Court dismissed several claims with prejudice.

However, it dismissed Anderson’s claims of denial of medical care, failure to intervene,

and conspiracy without prejudice to his filing an amended complaint. It denied the

motion to dismiss with respect to Anderson’s claims of failure to intervene and

conspiracy against Rauswinder and his state law tort claims. Appellees had not moved to

dismiss Anderson’s claims of excessive force and retaliation against Shaffer.

      In his first amended complaint, Anderson raised two claims—excessive force and

failure to intervene—against three defendants, Folino, Shaffer, and Rauswinder. After

Appellees filed motions to dismiss, Anderson was given the opportunity to file a second

amended complaint. When Anderson asked for clarification, the Magistrate Judge noted

that if Anderson included any new claims or claims previously dismissed, they would be

struck from the complaint.

      In his second amended complaint, he brought claims against twenty defendants

including violations of his First Amendment right to petition the government, excessive

force, denial of medical care, and denial of Equal Protection. Appellees again filed




                                            4
motions to dismiss. The Magistrate Judge dismissed the motions to dismiss without

prejudice to Appellees filing motions for summary judgment.

       The claims remaining at the time of Appellees’ motions for summary judgment

were those claims that had survived the initial motions to dismiss (excessive force and

retaliation against Shaffer, failure to intervene and conspiracy against Rauswinder and the

state law tort claims) and those claims Anderson was permitted to amend (denial of

medical care, failure to intervene, and conspiracy). While the Correctional Appellees

may have mistakenly referred to the first amended complaint in their motion for summary

judgment, they addressed Anderson’s claims of denial of medical care, excessive force,

conspiracy, and failure to intervene, and argued that Anderson had not exhausted his

administrative remedies with respect to several claims. They noted that Anderson denied

bringing any state law tort claims. In the District Court and on appeal, Anderson has not

pointed to any claim that was not addressed by Appellees or the District Court. The

failure to raise an issue in the District Court results in its waiver on appeal. Webb v. City

of Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6. Appellee Howard-Diggs’s motion for summary affirmance is granted.




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