                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 10-4458
                                   ________________

                 JEFFREY A. DOCK, individually and as executor of the
            estate of Jeremy W. Dock; LINDA L. LONG, individually and as
                         executor of the estate of Jeremy W. Dock,

                                                  Appellants
                                            v.

              RUTH RUSH; DONALD READE; DONALD CAMPBELL;
                 RICK BLAIR, PSP Trooper; SNYDER COUNTY
                             ________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 4-09-cv-00606)
                     District Judge: The Honorable John E. Jones
                                  _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 27, 2011

           BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges.

                                  (Filed June 22, 2011)

                                   _______________

                              OPINION OF THE COURT
                                  _______________

NYGAARD, Circuit Judge.

      Jeffrey Dock and Linda Long, individually and as executors of the estate of

Jeremy Dock, appeal the District Court’s order dismissing their civil rights complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, we will

affirm.

          Inasmuch as we are writing primarily for the parties who are familiar with this

case, we need not recite the factual or procedural background of this case, except insofar

as is helpful to our discussion.

                                               I.

          Jeremy Dock was assisting law enforcement authorities in an investigation into

drug trafficking within the Snyder County, Pennsylvania prison. For his own safety, he

was being held in protective custody. While in protective custody, Dock was found dead

in his cell. Prison officials maintain that Dock committed suicide. Appellants believe he

was killed by prison guards because he was cooperating with the authorities. Appellants

filed an action in the District Court raising First, Eighth and Fourteenth Amendment

claims, as well as state law claims sounding in negligence, survivorship and wrongful

death. Listed as defendants were Snyder County, Pennsylvania and several county

officials: Ruth Rush, the warden of the Snyder County Prison; Donald Reade, the deputy

warden; and Donald Campbell, the watch commander who found Dock’s body. Also

named as a defendant was Richard Blair, a Pennsylvania state trooper. Blair was not

alleged to have any role in Dock’s death, but conducted the subsequent investigation.1


1
  In the District Court, Appellants argued that Trooper Blair owed them a duty to
investigate the circumstances of Dock’s death under the Fourteenth Amendment. Finding
no support for this contention, the District Court dismissed Appellants’ claim against
Trooper Blair. On appeal, this claim has been neither identified as an issue nor argued in
the brief. An appellant is “required to set forth the issues raised on appeal and to present
an argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz, 1
                                               2
After giving the Appellants several opportunities to amend their complaint, the District

Court dismissed all claims.

                                               II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district

court’s decision to dismiss a complaint for failure to state a claim upon which relief may

be granted. See Dique v. New Jersey State Police, 603 F.3d 181, 188 (3d Cir. 2010). “In

deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken

as true and interpreted in the light most favorable to the plaintiffs, and all inferences must

be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(internal citation and quotation marks omitted). To withstand a motion to dismiss

pursuant to Fed.R.Civ.P. 12(b)(6), “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, -

-- U.S. --- , 129 S.Ct. 1937 (2009) (quoting Bell Atl. Corp. v. Twombly), 550 U.S. 544,

570 (2007).

                                              III.

       We start with the Appellants’ Eighth Amendment claim. To state a claim for a

violation under the Eighth Amendment, the Appellants must allege that the defendant

acted with “deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511

U.S. 825, 834 (1994) (internal quotations and citations omitted). Deliberate indifference

F.3d 176, 182 (3d Cir. 1993); see FED. R.APP. P. 28(a)(5), (9). “It is well settled that an
appellant's failure to identify or argue an issue in his opening brief constitutes waiver of
that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). The
instant appeal presents no circumstances which counsel against application of that rule
and we deem this issue waived.
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requires that prison officials know of an excessive risk to an inmate’s health or safety and

affirmatively disregard that risk. Farmer, 511 U.S. at 835. The Appellants’ Eighth

Amendment allegation fails because they are attempting to establish liability based on

supervisory liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

(liability cannot be predicated solely on the operation of respondeat superior, as a

defendant must have personal involvement in a civil rights action). Appellants do not

allege that any of the Appellees had personal knowledge of any threats to Dock’s safety

and subsequently acted with deliberate indifference. After reviewing the District Court

pleadings, the notice of appeal, and the parties’ responses, we cannot find any specific

allegations in the complaint from which we can plausibly infer that the Appellees were

deliberately indifferent to Dock’s safety. See, e.g., Spruill v. Gillis, 372 F.3d 218, 235

(3d Cir. 2004). Accordingly, this claim was properly dismissed.

       Further, the District Court correctly found the Appellants’ First Amendment

claims to be flawed. To prevail on a claim for retaliation by prison officials, a plaintiff

must show that: (1) he engaged in constitutionally protected conduct; (2) he suffered

some “adverse action” by prison officials; and (3) his exercise of a constitutional right

was a substantial or motivating factor in the adverse action. Rauser v. Horn, 241 F.3d

330, 333-34 (3d Cir.2001). Here, the District Court correctly determined that Appellants

properly alleged that Dock engaged in the protected activity of assisting law enforcement

personnel with an investigation. However, neither the Appellants’ original complaint,

nor their subsequent amended version relate any factual allegations connecting Dock’s



                                              4
death with this protected activity. Indeed, no allegation is made that the Appellees took

any action to retaliate against Dock for his cooperation in the criminal investigation.

Therefore, for the same reasons, we agree with the District Court that Appellants failed to

state claims upon which relief could be granted under the First Amendment to the

Constitution.

                                            IV.

       Appellants next argue that the District Court erred in its determination that they

failed to state a claim under Pennsylvania law. We disagree.

       The District Court correctly determined that the Pennsylvania Political

Subdivision Tort Claims Act, 42 Pa. Cons. Stat. §§ 8541-8542. The Act provides that

“no local agency shall be liable for any act of the local agency or employees thereof or

any other person.” 42 Pa. Cons. Stat. § 8541. Here, the Appellants have sued Snyder

County, Pennsylvania, which is clearly a “local agency” under the Act and is, therefore,

immune from suit. Moreover, the individual Appellees are also immune from suit under

the Act. “Municipal employees, including school district employees, are generally

immune from liability to the same extent as their employing agency, so long as the act

committed was within the scope of the employee’s employment.” Sanford v. Stiles, 456

F.3d 298, 315 (3d Cir. 2006) (citing 42 Pa. Cons. Stat. § 8545). Although there is an

exception to this general rule, providing that employees are not immune from liability

under § 8545 where their conduct amounts to “actual malice” or “willful misconduct,” no

such conduct has been pleaded here. Appellants have brought state law claims of



                                             5
wrongful death, negligence and survivorship – none of which connote malicious or

willful actions. See Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006).

                                             V.

       Lastly, Appellants maintain that the District Court erred by refusing them access

to discovery before dismissing their amended complaint. Appellants argue that our

decision in Alston v. Parker, 363 F.3d 229 (3d Cir. 2004) and local practice in the Middle

District of Pennsylvania, give them the opportunity to conduct discovery before the

District Court rules on a motion to dismiss. True enough, we recognized in Alston that

“in a civil rights action . . . the plaintiff may be disadvantaged by not having access to

precisely who the relevant actors were, and their precise roles.” Id. at 236. We held,

therefore, that “perhaps access to some initial discovery would be advisable.” Id. Our

decision in Alston reflected, among other things, our concern that the District Court had

dismissed an initial complaint without leave to amend. Id. at 235. We specifically held

that where a complaint is vulnerable to dismissal under Fed.R.Civ.P. 12(b)(6), a district

court should permit curative amendment, provided to do so would not be an exercise in

futility. Id. Here, we have no such concern given the fact that the District Court

permitted such an amendment and was extraordinarily generous with the Appellants,

permitting amendment even when the prescribed time for completing such a filing had

passed.

       As to the common practice of the Middle District of Pennsylvania, we are likewise

unpersuaded by the Appellants’ argument. While it may be common practice to permit



                                              6
discovery while a partial motion to dismiss is pending, the motion to dismiss in this case

would resolve the case in toto, making any delay for discovery inappropriate.

       Finally, in dismissing the amended complaint, the District Court determined that it

would be futile to permit further amendment. See, e.g., Hill v. City of Scranton, 411 F.3d

118, 134 (3d Cir. 2005) (“[A] district court has discretion to deny a request to amend if it

is apparent from the record that . . . the amendment would be futile[.]”). The record

before the District Court included the Appellants’ original and amended complaints,

exhibits, responses to the motion to dismiss and accompanying arguments. The District

Court was well-versed with Appellants’ allegations and gave them more than enough

opportunities to supplement or clarify their allegations. Given that, we find it reasonable

for the District Court to conclude that the Appellants had presented their best allegations,

and that any further amendment would not cure the deficiencies. Accordingly, it was not

an abuse of discretion for the District Court to deny leave to further amend and to dismiss

Appellants’ complaint with prejudice.

                                             V.

       We will affirm the District Court’s dismissal of the Appellants’ complaint.




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