    CLD-035                                              NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 10-3259
                                  ___________

                             EDWARD SEMULKA,
                                     Appellant

                                        v.

           KENNY P. MOSCHELL; SHARON M. MOSCHELL;
                      JOHN DOE; JAN DOE;
             CANONSBURG OFFICER CARL FETCHKO;
                    CANONSBURG BOROUGH;
        WASHINGTON COUNTY DISTRICT ATTORNEY’S OFFICE;
           WASHINGTON COUNTY CANONSBURG POLICE
              ____________________________________

                   Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                           (D.C. Civil No. 09-cv-01718)
                   District Judge: Honorable Sylvia H. Rambo
                   ____________________________________

     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
                              November 12, 2010

           Before: RENDELL, FUENTES and SMITH, Circuit Judges

                       (Opinion filed: November 18, 2010)
                                    _________

                          OPINION OF THE COURT
                                _________

PER CURIAM

    Edward Semulka appeals from a District Court order dismissing his pro se
complaint for failure to state a federal cause of action and denying his motion for

appointment of counsel. For the following reasons, we will summarily affirm.

       In August 2009, Semulka filed a civil rights complaint against prison officials at

the Federal Correctional Institution at Allenwood, where he had previously served a

prison term. He alleged that prison officials denied medical treatment, gave him

incorrect medication, failed to protect him from physical and mental abuse from fellow

inmates, secretly recorded his private conversations, and denied access to prison

grievance forms and the prison law library. He also filed a motion to have counsel

appointed.

       In September 2009, the District Court issued the first of several orders directing

Semulka to amend his complaint. The District Court issued this order because the

complaint did not comply with Federal Rule of Civil Procedure 8. In addition, the

District Court dismissed without prejudice the motion for appointment of counsel

because it was impossible to determine from the pleading whether Semulka had an

arguably meritorious claim. Throughout the course of the litigation, Semulka asked for

several extensions for filing an amended complaint and renewed his motion for the

appointment of counsel. The District Court repeatedly granted the extensions and again

denied without prejudice the motion for counsel. On July 17, 2010, thirteen days before

the last deadline for filing an amended complaint, Semulka filed a document entitled

“Complaint for Temporary Restraining Order[,] Preliminary and Permanent Injunctive

Relief, [and] Declaratory Relief.” In this document, Semulka asserted claims against his
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neighbors for nuisance and cruelty to animals. Although the caption listed other

defendants, the complaint identified causes of action against only the neighbors.

Semulka made no mention of any of the defendants or causes of action related to his

period of incarceration. The District Court interpreted the filing as an amended

complaint and dismissed it for failure to state a federal cause of action.

       The standard of review for a dismissal for lack of subject matter jurisdiction is

plenary. See Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). We

review the denial of a motion for appointment of counsel for abuse of discretion. Parham

v. Johnson, 126 F.3d 454, 457 (3d Cir.1997). We may summarily affirm a decision of the

District Court if the appeal does not raise a substantial issue. L.A.R. 27.4; I.O.P. 10.6.

       “An amended complaint supersedes the original complaint and renders it of no

legal effect unless the amended complaint specifically refers to and adopts or

incorporates by reference the earlier pleading,” King v. Dogan, 31 F.3d 344, 346 (5th Cir.

1994). In the July 17, 2010, document, Semulka did not refer to or adopt the initial

complaint. He did not even raise the same claims or name the same defendants. Thus,

the District Court properly considered only the July 17, 2010, document in dismissing the

complaint. Since neither the nuisance nor cruelty-to-animals claims invokes federal

question jurisdiction, see 28 U.S.C. § 1331, and because there does not appear to be a

basis for diversity jurisdiction, see 28 U.S.C. § 1336, the District Court’s dismissal was

proper.

       In determining whether to grant a pro se plaintiff’s motion for appointment of
                                              3
counsel, the district court first must determine, as a threshold matter, whether the “claim

has arguable merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).

Because it was unclear from the initial complaint whether Semulka’s claims had arguable

merit, the District Court’s denial of the motions was not an abuse of discretion.

       Accordingly, we conclude that this appeal presents no substantial question, and we

will affirm the order of the District Court.




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