BLD-099                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 12-3926
                                 ___________

                              TYREE WALLACE,
                                        Appellant

                                       v.

      JANE DOE, Medical Staff; BARBARA HOLLIBAUGH, Unit Manager;
        MARY LOU SHOWALTER, Corrections Health Care Administrator;
       DR. KLEMICK, Medical Director; SCOTT WALTERS, Unit Manager;
          JAY JOHNSON, Counselor, JANE DOE, Plumbing Supervisor;
                 RAYMOND W. LAWLER, Superintendant
                 ____________________________________

                On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 1:10-cv-00948)
                District Judge: Honorable Christopher C. Conner
                  ____________________________________

      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
                                January 25, 2013
     Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                        (Opinion filed: January 31, 2013)

                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Tyree Wallace, an inmate currently incarcerated at SCI Huntingdon in

Huntingdon, Pennsylvania and proceeding pro se, appeals from an order of the United

States District Court for the Middle District of Pennsylvania denying his motion to alter

or amend judgment. Because this appeal does not present a substantial question, we will

summarily affirm the District Court’s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

                                             I.

       Because we write primarily for the parties, we need only recite the facts necessary

for our discussion. On April 28, 2008, while housed in the EA Unit at SCI Huntingdon,

Wallace suffered a seizure, which he alleges rendered him unconscious for approximately

one hour and forty-five minutes. During that time, he was lying against an uncovered

radiator in his cell and suffered severe burns to his face, head, arm, and ear. According to

Wallace, he requested to be transferred to B Block and the Special Needs Unit a number

of times between 2004 and 2006 because of his seizure disorder. He was first diagnosed

in 2002 and was prescribed Dilantin, an anti-seizure medication. He continued to take

Dilantin from 2002 until the date of the radiator incident; however, he alleged that he had

gone four days without medication prior to his seizure. Wallace also asserted that after

the incident, doctors at Mercy Hospital switched his medication to Tegretol and that he

has not suffered a seizure since then.




                                             2
       Wallace filed his civil rights complaint pursuant to 42 U.S.C. § 1983 in April

2010, alleging that Appellees violated his Eighth Amendment rights by providing

inadequate medical care and by demonstrating a failure to protect. On January 12, 2011,

the District Court dismissed Wallace’s complaint against Dr. Klemick in its entirety. On

June 17, 2011, the District Court granted Appellees’ motion for summary judgment with

respect to Wallace’s inadequate medical care claim as to Jane Doe, Medical and

Showalter. Hollibaugh, Johnson, Walters, Lawler, and Jane Doe, Plumbing Supervisor

filed a motion for summary judgment on Wallace’s failure to protect claim on September

19, 2011, and Wallace filed his opposition on November 18, 2011. On June 13, 2012, the

District Court granted summary judgment in favor of Appellees and dismissed Jane Doe,

Plumbing Supervisor, pursuant to Fed. R. Civ. P. 4(m) for Wallace’s failure to identify

and serve her. Wallace subsequently filed a motion for reconsideration of the District

Court’s judgment, which the District Court denied on September 13, 2012. Wallace then

timely filed this appeal.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Wallace’s timely

appeal from the denial of his motion for reconsideration “brings up the underlying

judgment for review,” we will review the District Court’s grants of summary judgment to

Appellees and dismissals of Klemick and Jane Doe, Plumbing Supervisor as well as its

denial of Wallace’s motion for reconsideration. LeBoon v. Lancaster Jewish Cmty. Ctr.

Ass’n, 503 F.3d 217, 225 n.6 (3d Cir. 2007); see also McAlister v. Sentry Ins. Co., 958
                                            3
F.2d 550, 552-53 (3d Cir. 1992) (“[A]n appeal from a denial of a Motion for

Reconsideration brings up the underlying judgment for review.”).

       To survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). This Court affirms a district court’s dismissal for failure to state a

claim “only if, accepting all factual allegations as true and construing the complaint in the

light most favorable to the plaintiff, we determine that the plaintiff is not entitled to relief

under any reasonable reading of the complaint.” McGovern v. City of Philadelphia, 554

F.3d 114, 115 (3d Cir. 2009). Furthermore, summary judgment is appropriate only when

the record “shows that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The

moving party has the burden of demonstrating that there is no genuine issue as to any

material fact, and summary judgment is to be entered if the evidence is such that a

reasonable fact finder could find only for the moving party.” Watson v. Eastman Kodak

Co., 235 F.3d 851, 854 (3d Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).

       We exercise plenary review over the District Court’s orders granting summary

judgment and Appellee Klemick’s motion to dismiss. See Giles v. Kearney, 571 F.3d

318, 322 (3d Cir. 2009); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). However,

we review the dismissal of a defendant on the basis of improper or failed service of
                                               4
process for abuse of discretion. See Umbenhauer v. Woog, 969 F.2d 25, 28 (3d Cir.

1992). We review a denial of a motion for reconsideration for abuse of discretion, but

review a district court’s underlying legal determinations de novo and its factual

determinations for clear error. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,

176 F.3d 669, 673 (3d Cir. 1999). We may summarily affirm on any basis supported by

the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

                                            III.

       Under the Prison Litigation Reform Act (“PLRA”), inmates must exhaust their

administrative remedies before filing a suit alleging specific acts of unconstitutional

conduct by prison officials. 42 U.S.C. § 1997e(a). A prisoner must exhaust these

remedies “in the literal sense;” no further avenues in the prison’s grievance process

should be available. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). Exhaustion must

be “‘proper exhaustion,’ meaning that the prisoner must comply with all the

administrative requirements and not merely wait until there are no administrative

remedies ‘available.’” Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting

Woodford v. Ngo, 548 U.S. 81, 92-103 (2006)). “[I]t is the prison’s requirements, and

not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S.

199, 218 (2007).

       The Pennsylvania Department of Corrections’ (“DOC”) grievance system requires

an inmate to first file a grievance with the facility grievance coordinator. See Pa. Dep’t

of Corr. Policy Statement, DC-ADM 804, Part IV.A.8. The inmate may appeal the
                                              5
coordinator’s decision to the facility manager, and then may file a final appeal to the

Secretary’s office. See id. at Part IV.C.1, 2 and Part IV.D.1. Here, the record reflects

that Wallace did not appeal the denial of his grievance alleging that he received

inadequate medical care for the burns he suffered to his face and that officials

inconsistently administrated his seizure medication. Furthermore, while Wallace argues

that he addressed his inadequate medical care claim against Klemick in a grievance filed

on May 7, 2008 and appealed on November 5, 2008, the record reflects that nowhere in

that grievance does he address that claim. Furthermore, Wallace never submitted a

grievance alleging that Jane Doe, Medical and Showalter provided inadequate medical

care. Therefore, the District Court properly dismissed Wallace’s complaint as to Klemick

and granted summary judgment to Appellees Jane Doe, Medical and Showalter on

Wallace’s inadequate medical care claim.

       To succeed on an Eighth Amendment claim for failure to protect, a plaintiff must

show that: (1) “he is incarcerated under conditions posing a substantial risk of serious

harm;” and (2) prison officials operated with “deliberate indifference to [his] health or

safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Hamilton v. Leavy, 117

F.3d 742, 746 (3d Cir. 1997). A substantial risk of serious harm “may be established by

much less than proof of a reign of violence and terror,” but requires more than a single

incident or isolated incidents. See Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). To

determine whether officials operated with deliberate indifference, courts question

whether they consciously knew of and disregarded an excessive risk to the prisoner’s
                                             6
well being. Farmer, 511 U.S. at 840-44; Hamilton, 117 F.3d at 747. Not only must a

prison official be “aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists,” but the official “must also draw the inference.”

Farmer, 511 U.S. at 837.

       Here, Wallace asserts that both he and other inmates housed in the EA Unit

suffered radiator burns prior to his April 28, 2008 incident; however, the record contains

no evidence to support his assertions. Furthermore, Lawler, Walters, Johnson, and

Hollibaugh all declared that they had never heard of any inmate suffering burns from the

radiators prior to Wallace’s incident. Accordingly, Wallace cannot establish a substantial

risk of serious harm through a single incident. See Riley, 777 F.2d at 147. Given that the

record is devoid of any evidence that prison officials were aware of prior incidents

involving inmates being burned by the radiators, Wallace cannot establish that officials

could be aware of any facts from which they could draw an inference that the radiators in

the EA Unit posed a substantial risk of serious harm. See Farmer, 511 U.S. at 837.

Accordingly, the District Court properly granted summary judgment to Lawler, Walters,

Johnson, and Hollibaugh on Wallace’s Eighth Amendment failure to protect claim. 1

       Finally, Wallace filed a motion for reconsideration of the District Court’s order

granting summary judgment to Appellees on his failure to protect claim. A motion for

reconsideration “must rely on one of three grounds: (1) an intervening change in




                                              7
controlling law; (2) the availability of new evidence; or (3) the need to correct clear error

of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.

2010) (per curiam). Wallace did not identify any of these factors; instead, he merely

reiterated his previous argument and attempted to introduce new theories of liability, all

of which were available to him before he filed this motion. Accordingly, we discern no

abuse of discretion in the District Court’s denial of Wallace’s motion.

                                             IV.

       For the foregoing reasons, no substantial question is presented and we will affirm

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6. Wallace’s

motion for the appointment of counsel is denied.




       1
        Because Wallace’s claim against Jane Doe, Plumbing Supervisor was meritless,
we need not determine whether the District Court abused its discretion in dismissing her
from the suit under Fed. R. Civ. P. 4(m).
                                              8
