                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 09-3494
                                  ___________

                              ALTON D. BROWN,
                                          Appellant

                                            v.

         DAVID DIGUGLIELMO; SCOTT WILLIAMSON; FELIPE ARIAS;
         WILLIAM BANTA; LIEUTENANT WHITE; LIEUTENANT JUDGE;
         LIEUTENANT GIVEN; SERGEANT ZIMMERMAN; SGT. NAFUS;
               SGT. COX; AND TWENTY-NINE JOHN AND JANE DOES
                ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                     (D.C. Civil Action No. 07-cv-03771 )
                   District Judge: Honorable Anita B. Brody
                  ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                              February 24, 2011
             Before: BARRY, JORDAN and GARTH, Circuit Judges

                         (Opinion filed March 21, 2011 )

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Appellant Alton Brown, a Pennsylvania state prisoner proceeding pro se, appeals
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from the order of the United States District Court for the Eastern District of Pennsylvania

dismissing his civil rights complaint. For the reasons that follow, we will vacate the

judgment of the District Court in part, affirm in part, and remand for further proceedings.

       The facts underlying the instant appeal are well-known to the parties, and thus are

only briefly set forth here. In September 2007, Brown commenced an action under 42

U.S.C. § 1983 against various employees of the Pennsylvania Department of Corrections

(hereafter referred to as the “DOC Defendants”) who worked at the State Correctional

Institution at Graterford, as well as the institution‟s physician, Felipe Arias, M.D. In an

amended complaint filed in October 2008, Brown alleged that prison officials and Dr.

Arias had been subjecting him to second-hand environmental tobacco smoke (“ETS”) in

violation of his rights under the Eighth and Fourteenth Amendments.

       The DOC Defendants responded to Brown‟s complaint by filing a motion to

dismiss or, in the alternative, for summary judgment. The DOC Defendants argued that

Brown had failed to exhaust available administrative remedies, and had failed to allege

sufficient personal involvement on the part of each of the DOC Defendants with respect

to the ETS-related events. In a two-sentence order entered on March 19, 2009, the

District Court granted the DOC Defendants‟ motion. The case proceeded against Dr.

Arias, who likewise filed a motion to dismiss or, alternatively, for summary judgment.

After considering Brown‟s opposition to Dr. Arias‟ motion, the District Court entered an

order on July 27, 2009, granting the motion. In addressing the merits of Brown‟s

                                              2
complaint, the District Court concluded that the evidence offered with respect to Dr.

Arias‟ alleged actions in smoking in the Restricted Housing Unit (“RHU”) or permitting

others to smoke in his presence was insufficient to allow a reasonable fact-finder to

conclude that Brown suffered an unreasonable risk of future harm from ETS exposure.

The District Court thus granted summary judgment in favor of Dr. Arias, and denied

Brown‟s request to stay summary judgment proceedings for continued discovery.

       Brown‟s opposition was also construed by the District Court as a request to

reconsider its order granting the DOC Defendants‟ motion. In support of that request,

Brown argued that he never received the motion, and thus did not have an opportunity to

file a response in opposition. Citing E.D. Pa. Loc. Adm. R. 7.1 in support of its decision

to grant the DOC Defendants‟ motion as uncontested, the District Court rejected Brown‟s

excuse after observing that he had consistently received the defendants‟ pleadings since

the action began. Accordingly, the District Court denied Brown‟s request for

reconsideration. This timely appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court‟s dismissal under Rule 12(b)(6), as well as its grant of summary judgment, is

plenary. See Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co., 579 F.3d

304, 307 (3d Cir. 2009); Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181

(3d Cir. 2009). We review a denial of a motion for reconsideration for abuse of

discretion, while reviewing the District Court‟s underlying legal determinations de novo

                                             3
and its factual determinations for clear error. Max‟s Seafood Café v. Quinteros, 176 F.3d

669, 673 (3d Cir. 1999). We likewise review a District Court‟s discovery order for abuse

of discretion, and “will not disturb such an order absent a showing of actual and

substantial prejudice.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir.

2010).

         Brown‟s initial contention on appeal is that the District Court erred in concluding

that he had timely received a copy of the DOC Defendants‟ motion to dismiss or,

alternatively, for summary judgment, and in granting that motion as uncontested. The

DOC Defendants, on the other hand, contend that the District Court‟s ruling was actually

an implicit determination that summary judgment was warranted on the basis of Brown‟s

failure to exhaust available administrative remedies. We find the DOC Defendants‟

argument to be unsupportable on the record presented, and dispose of it with little

discussion. While the basis of the District Court‟s ruling is not set forth in its initial

order, there can be little doubt as to the reasoning behind its decision granting the DOC

Defendants‟ motion once its subsequent order is considered. In denying Brown‟s request

for reconsideration, the District Court explicitly noted that a local administrative rule

permits “the motion to be granted as uncontested.” See District Court Order entered

7/27/09 at 2 n.2. The District Court then clearly stated that it granted the defendants‟

motion “[b]ecause Brown never filed a response.” Id.

         Brown‟s argument that the District Court should not have granted the DOC

                                               4
Defendants‟ motion where he claims that he never received notice that the motion had

been filed and had never specifically been directed to file a response is not without some

merit, and the DOC Defendants recognize as much. See DOC Defendants‟ Brief at 22

n.18 (“To grant a motion for summary judgment, or a motion to dismiss, without any

substantive analysis, purely because the non-moving party failed to respond is often

(although not invariably) improper.” (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29,

30 (3d Cir. 1991)). We made clear quite some time ago in Stackhouse our disfavor of

dismissals under Rule 12(b)(6) for purposes of sanctioning a litigant. We further held in

Stackhouse that a Rule 12(b)(6) motion should not be granted without an analysis of the

merits of the underlying complaint notwithstanding local rules regarding the granting of

unopposed motions. Id.

       While we observed that “some cases” could be dismissed as unopposed (e.g., if the

party is represented by counsel or failed to comply with a court‟s order), id. at 30, such is

not the case here. Unlike issuance of the order on March 31, 2009, directing Brown to

show cause as to why Dr. Arias‟ motion to dismiss or, in the alternative, for summary

judgment should not be granted, no such order was issued as a result of the DOC

Defendants‟ motion. In fact, the only order issued subsequent to the filing of the DOC

Defendants‟ motion was the District Court‟s scheduling order on January 7, 2009. That

apparent form order made no reference of the DOC Defendants‟ pending motion, but

simply noted that the deadline for dispositive motions was set for May 18, 2009.

                                              5
Accordingly, given the absence of evidence that Brown's failure to respond was willful,

we will vacate that portion of the District Court‟s judgment granting the DOC

Defendants‟ motion to dismiss or, in the alternative, for summary judgment, and remand

the matter to the District Court for further proceedings. As discussed more fully below,

however, our remand is of a limited nature.

       There are two varieties of ETS claims – present injury claims and future injury

claims – and they are measured by different standards. See Atkinson v. Taylor, 316 F.3d

257, 273 (3d Cir. 2003) (Ambro, J., dissenting in part). Despite the fact that the District

Court construed Brown‟s complaint as asserting only a future injury claim, we think it

clear that Brown attempted to assert both types of claims. As noted, Brown alleges that

he is continuously exposed to second-hand cigarette smoke from the prison staff in his

cell block. Brown states that although he quit smoking back in April 2000, he has begun

to experience the same symptoms as he did when he smoked: sinus congestion,

headaches, tightness of the lungs, and difficulty breathing. See Amended Complaint at 4

¶ 22. He also believes that his liver and heart diseases have been aggravated by exposure

to ETS. Id. at ¶ 23. Brown further argues that because of the second-hand smoke in the

RHU, he is “in imminent danger of contracting cancer, Bronchitis, or some other smoke-

related disease if relief is not provided immediately.” Id. at ¶ 22. Brown requested

declaratory and injunctive relief, in addition to compensatory and punitive damages.

       While Brown raised both types of injury claims, our remand is limited to his claim

                                              6
that the DOC Defendants have created an unreasonable risk of future harm from his

continued ETS exposure. With respect to his present injury claim, we find lacking

sufficient allegations of deliberate indifference on the part of the DOC Defendants in

regards to any serious medical need of which they were made aware. See Atkinson, 316

F.3d at 273 (A present injury claim is a standard condition-of-confinement claim

governed by the principles the Supreme Court established in Estelle v. Gamble, 429 U.S.

97 (1976) and Farmer v. Brennan, 511 U.S. 825 (1994), requiring a prisoner to “allege a

sufficiently serious medical need (the objective component) and deliberate indifference

by prison officials in response (the subjective component).”).

       When considering a motion to dismiss, a court must “accept all factual allegations

as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to

relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). However, to

survive a motion to dismiss, a complaint – even a pro se complaint – “must contain

sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its

face.‟” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. We find that Brown‟s general

allegations of exposure to ETS and his resulting sensitivities, even construed liberally, are

                                                7
plainly insufficient to state a present injury claim for ETS exposure against the DOC

Defendants. While Brown alleges that the DOC Defendants acted with deliberate

indifference in exposing him to levels of ETS that pose an unreasonable risk of harm to

his future health, see Amended Complaint at 3 ¶ 19, he simply makes no allegations that

the DOC Defendants were deliberately indifferent to any serious medical need he was

currently experiencing from ETS exposure. Such a deficiency is fatal to his Eighth

Amendment claim.

       We have, of course, “instructed that if a complaint is vulnerable to 12(b)(6)

dismissal, a district court must permit a curative amendment, unless an amendment would

be inequitable or futile.” Phillips, 515 F.3d at 236. Here, however, we believe that

affording Brown the opportunity to file a second amended complaint would be futile.

Accordingly, we will affirm the District Court‟s dismissal of Brown‟s present injury

claim against the DOC Defendants. See Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir.1999) (“We may affirm the district court on any basis supported by the record.”).

On the other hand, and as noted previously, we find that Brown‟s allegations regarding a

future injury claim due to ETS exposure are sufficient to survive a Rule 12(b)(6)

dismissal. Accordingly, this claim will be remanded to the District Court for further

proceedings during which the District Court is free to consider, inter alia, the DOC

Defendants‟ exhaustion of administrative remedies defense and the parties‟ discovery

requests.

                                             8
       Having carefully reviewed the parties‟ submissions and the record on appeal, we

further conclude that Brown has failed to establish an Eighth Amendment present or

future injury claim for ETS exposure against Dr. Arias. In the absence of any evidence

Brown specifically complained to Dr. Arias that he had an ETS-related illness amounting

to a sufficiently serious medical need or that he had sought treatment on account of

excessive ETS exposure, he failed to establish deliberate indifference on the part of Dr.

Arias to any such medical need. See Atkinson, 316 F.3d at 266. Even Brown‟s sworn

allegations, taken as a whole, do not describe conduct that rises to the level of deliberate

indifference with respect to Brown‟s present injury ETS exposure claim. See Farmer,

511 U.S. at 835 (“[D]eliberate indifference describes a state of mind more blameworthy

than negligence,” but “it is satisfied by something less than acts or omissions for the very

purpose of causing harm or with knowledge that harm will result.”).

       Brown‟s future injury claim against Dr. Arias fares no better considering the

limited nature of the allegations in his sworn affidavit, e.g., that he observed Dr. Arias

“smoke tobacco at or near [his] RHU cell on at least fifty (50) occasions” over the course

of a three year period, he observed other unidentified staff smoke in Dr. Arias‟ presence

on “many occasions,” and that, as a medical doctor, Dr. Arias is aware of the adverse

effects of second hand smoke. Liability for a future injury case based on exposure to

ETS requires proof of: (1) exposure to unreasonably high levels of ETS contrary to

contemporary standards of decency; and (2) deliberate indifference by the authorities to

                                              9
the exposure to ETS. See Helling v. McKinney, 509 U.S. 25, 35 (1993). Aside from the

fact that Brown presented no evidence with respect to the levels of ETS to which he is

being exposed, we agree with the District Court that Brown failed to present evidence

demonstrating that Dr. Arias was deliberately indifferent to any unreasonable health risks

he faces in the RHU. See Farmer, 511 U.S. at 837 (To establish liability under the Eighth

Amendment, the prison “official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.”).

       We have fully considered Brown‟s remaining challenges and find them to be

lacking in merit. Accordingly, we dispose of them without further discussion. The

District Court‟s judgment is thus vacated in part and affirmed in part, and this matter is

remanded for further proceedings in accordance with this opinion.1




1
  While we will grant Brown‟s motion to file a separate reply brief, which we have
considered in rendering our decision, we deny his motion for a court order requiring
appellees to provide him with his case files.
                                             10
