                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3117
                                       ___________

                                      SEAN TAPP,
                                                        Appellant

                                             v.

     DANNY BRAZILL; ANDY PROTO; LANCASTER COUNTY PRISON;
    SGT. JACOBS; C/O L. GRIER; C/O MILLER; NURSE CARRIE MEDINA;
  C/O CANNEFIELD; C/O MARIN; SGT. R. WOLFFE; LANCASTER COUNTY
PRISON MED. DEPT.; WARDEN GUARDEENI; ROBERT SAMASKO; DR. YUNG;
 C/O RODER; C/O HERSH; RN VAL B., Medical Staff; RN LAURIE HOSTEDER;
        THE CITY OF LANCASTER COUNTY; C/O B. JOHNSON, #27
                 ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 5:11-cv-00677)
                      District Judge: Honorable Petrese B. Tucker
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 22, 2016
             Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                             (Opinion filed: March 24, 2016)
                                     ___________

                                        OPINION*
                                       ___________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              1
PER CURIAM

       Pro se appellant Sean Tapp challenges three orders entered by the District Court in

his civil rights action brought pursuant to 42 U.S.C. §§ 1983 and 1985. For the reasons

that follow, we will affirm each of those orders.

                                             I.

       Because we write primarily for the parties, who are familiar with the background

of this case, we discuss that background only briefly. The allegations in this case concern

the time period from January 2009 to August 2009, when Tapp was incarcerated in the

Lancaster County Prison (“LCP”). During the majority of that time period, Tapp was a

pretrial detainee.1

       In January 2011, Tapp filed a pro se complaint in the District Court against twenty

defendants, raising a host of claims. Five of the defendants provided medical services to

LCP; we refer to those defendants as the “Medical Defendants.” Another group of

defendants — the “LCP Defendants” — consisted of LCP itself and twelve LCP prison

officers/officials. The remaining two defendants were the “City of Lancaster County” (it

appears from Tapp’s complaint that he intended to sue the City of Lancaster, not

Lancaster County) and Andy Proto, who was employed by Aramark Correctional

Services, LLC, as a general manager of food services at LCP.


1
  In July 2009, Tapp was convicted in Pennsylvania state court of possession with intent
to deliver a controlled substance. See Commonwealth v. Tapp, 997 A.2d 1201, 1202 (Pa.
Super. Ct. 2010). He is currently incarcerated in one of Pennsylvania’s state correctional
institutions.
                                             2
         Shortly after the complaint was served, the Medical Defendants moved to dismiss

the claims against them for failure to state a claim upon which relief can be granted. See

Fed. R. Civ. P. 12(b)(6). On December 13, 2011, the District Court granted that motion.

         In September 2012, Tapp successfully moved for a default judgment against Proto,

who had yet to respond to the complaint. However, in December 2013, Proto moved to

vacate that judgment. Proto averred that he had not worked at LCP since April 2010, and

that an LCP corrections officer had accepted service on his behalf without his or

Aramark’s permission. Proto further averred that he himself did not learn of the default

judgment until September 2013. On January 28, 2014, the District Court entered an order

granting Proto’s motion. Shortly thereafter, Proto moved to dismiss the claims against

him pursuant to Rule 12(b)(6). On June 10, 2014, the District Court entered an order

granting that motion to dismiss.

         The claims against the LCP Defendants took a different course. The relevant

parties conducted discovery and eventually filed cross motions for summary judgment.

On June 10, 2014 (in a different order than the one involving the claims against Proto),

the District Court granted the LCP Defendants’ motion for summary judgment and

denied Tapp’s cross motion. In the same order, the District Court dismissed the claims

against the City of Lancaster for lack of prosecution and directed the District Court Clerk

to close the case. This timely appeal followed.2



2
    We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
                                               3
                                             II.

       We begin by outlining the scope of our review. Federal Rule of Appellate

Procedure 3(c) states, inter alia, that a notice of appeal must “designate the judgment,

order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). We liberally construe

this requirement, see Pacitti v. Macy’s, 193 F.3d 766, 776 (3d Cir. 1999), and “[w]e have

held that when an appellant gives notice that he is appealing from a final order, failing to

refer specifically to earlier orders disposing of other claims or other parties does not

preclude us from reviewing those orders.” Shea v. Smith, 966 F.2d 127, 129 (3d Cir.

1992). Indeed, we have exercised jurisdiction over orders not specified in the notice of

appeal when “(1) there is a connection between the specified and unspecified orders;

(2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is

not prejudiced and has a full opportunity to brief the issues.” Sulima v. Tobyhanna Army

Depot, 602 F.3d 177, 184 (3d Cir. 2010) (quoting Polonski v. Trump Taj Mahal Assocs.,

137 F.3d 139, 144 (3d Cir. 1998)).

       In this case, Tapp’s notice of appeal specifically referred only to the District

Court’s final order — the June 10, 2014 order that, inter alia, granted the LCP

Defendants’ motion for summary judgment and closed the case.3 However, his appellate


3
  Although Tapp’s notice of appeal also alluded to the District Court’s January 28, 2014
order granting Proto’s motion to vacate the default judgment, Tapp has waived any
challenge to that order. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises
it in [his] opening brief, and for those purposes a passing reference to an issue will not
suffice to bring that issue before this court.”) (internal quotation marks omitted). Even if
                                               4
brief also challenges the December 13, 2011 order dismissing the Medical Defendants

and the June 10, 2014 order dismissing Proto. Given that (1) there is a connection

between those two dismissal orders and the District Court’s final order (the two dismissal

orders could not be appealed until the final order was entered), (2) Tapp’s intent to appeal

the two dismissal orders is evident from his appellate brief, and (3) the relevant

defendants have not been prejudiced and have had the opportunity to fully brief the issues

that stem from the two dismissal orders, we conclude that we have jurisdiction to review

those two orders (along with the District Court’s final order). See Sulima, 602 F.3d at

184; see also Lusardi v. Xerox Corp., 975 F.2d 964, 972 n.14 (3d Cir. 1992) (citing cases

where we have exercised jurisdiction under similar circumstances).

       We review the District Court’s dismissal of the Medical Defendants and Proto, as

well as its decision to grant summary judgment in favor of the LCP Defendants, under a

de novo standard. See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir.

2011). “To withstand a Rule 12(b)(6) 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.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Meanwhile, summary

judgment is appropriate when the “movant shows that there is no genuine dispute as to


we were to reach the merits of Tapp’s challenge to that order, we would affirm because
the District Court acted within its discretion in granting Proto’s motion to vacate the
default judgment. See Zawadski de Bueno v. Bueno Castro, 822 F.2d 416, 419-20 (3d
Cir. 1987) (discussing factors to consider when reviewing a district court’s decision to
vacate a default judgment).

                                                5
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). Although the non-movant’s evidence “is to be believed, and all justifiable

inferences are to be drawn in his favor in determining whether a genuine factual question

exists,” summary judgment should be granted “unless there is sufficient evidence for a

jury to reasonably find for the nonmovant.” Barefoot Architect, Inc., 632 F.3d at 826

(internal quotation marks omitted). Lastly, we review for abuse of discretion the District

Court’s dismissal of the claims against the City of Lancaster for failure to prosecute. See

Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 260 n.1 (3d Cir. 2011). We may

affirm the District Court’s decisions on any basis supported by the record. See Murray v.

Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

                                            III.

       We begin our review with the District Court’s dismissal of the claims against the

Medical Defendants. These claims alleged, inter alia, that Tapp was intentionally

misdiagnosed with Methicillin-resistant Staphylococcus aureus (“MRSA”), that he was

not receiving his MRSA medication (this allegation is at odds with the previous

allegation), and that Tapp was required to sign a form before receiving treatment for a

boil on or near his armpit. The District Court concluded that Tapp’s

constitutional/federal claims failed to state a claim upon which relief can be granted. The

District Court then declined to exercise supplemental jurisdiction over any state law

claims against the Medical Defendants.


                                             6
       For substantially the reasons given by the District Court, we agree that Tapp’s

claims against the Medical Defendants were inadequate to proceed.4 However, before

dismissing claims under Rule 12(b)(6), a district court must give the plaintiff an

opportunity to amend them, unless such amendment would be futile or inequitable. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, it does not

appear that the District Court considered whether Tapp should be given an opportunity to

amend. Nevertheless, remand is not necessary. Prior to appellate briefing, the Clerk of

this Court directed Tapp and the Medical Defendants to address the leave-to-amend issue

in their respective briefs. Although Tapp’s brief contends that the District Court “fail[ed]

to let [him] amend his claims,” (Appellant’s Br. 5), he does not expound on this

contention. Indeed, even though more than four years have passed since the District

Court dismissed the claims against the Medical Defendants, Tapp’s brief does not allege

any additional facts with respect to these claims, let alone facts that would state a claim

under Rule 12(b)(6). Under these circumstances, we conclude that amendment of the

claims against the Medical Defendants would be futile. Accordingly, we will affirm the

District Court’s dismissal of these claims.


4
  The District Court analyzed Tapp’s inadequate medical care claims under the Eighth
Amendment’s “deliberate indifference” standard. See Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003) (discussing that standard). Because it appears
that Tapp’s inadequate medical care claims arose while he was a pretrial detainee, those
claims are governed by the Fourteenth Amendment’s Due Process Clause, not the Eighth
Amendment. See id. at 581. That said, remand is not necessary because the Eighth
Amendment’s deliberate indifference standard applies equally to inadequate medical care
claims brought by pretrial detainees under the Fourteenth Amendment. See id. at 581-82.
                                             7
       We next consider the District Court’s dismissal of the claims against Proto.

Tapp’s complaint alleged that

              [o]n 1-30-09[,] plaintiff served notice on Mr. Andy Proto that
              he would like to be fed kosher meals in accordance with his
              religious beliefs. On 2-2-09[,] Mr. Proto responded back to
              plaintiff’s request[,] informing him to either be a vegetarian
              or eat non[-]kosher regular population meals, if he wants to
              eat meat. This is religious discrimination[,] retaliation, cruel
              & unusual punishment & the conspiracy can be inferred from
              these overt acts. Also a 5th & 14th amendment violation[,]
              too.

(Suppl. App. at 41.) The District Court concluded that these allegations failed to state a

claim under Rule 12(b)(6). The District Court stated, inter alia, that “a prison does not

violate the Free Exercise Clause by offering an all-cold kosher diet which lacks meat,”

(Dist. Ct. Order entered June 10, 2014, at 2 n.1, located at Dist. Ct. docket no. 61 (citing

Johnson v. Horn, 150 F.3d 276, 283 (3d Cir. 1998), overruled on other grounds by

DeHart v. Horn, 227 F.3d 47, 55 (3d Cir. 2000) (en banc))), and that Tapp’s complaint

did not allege “that the vegetarian diet provided was non-kosher or nutritionally

inadequate.” (Id.)

       For substantially the reasons given by the District Court, we agree that the claims

against Proto in Tapp’s complaint failed to satisfy Rule 12(b)(6). The question that

remains is whether the District Court should have afforded Tapp leave to amend these

claims. In Tapp’s opposition to Proto’s motion to dismiss, Tapp alleged, inter alia, that

he was being served “non kosher regular population vegetarian meals,” and that a “kosher

vegan tray” offered to him by Proto was not kosher either. But Tapp did not allege facts
                                              8
indicating why those meal offerings were not kosher. Furthermore, although the Clerk of

this Court instructed Tapp to brief whether he should have been given leave to amend, his

appellate brief does not provide any further insight into these claims. Under these

circumstances, we conclude that amendment would be futile, and we will affirm the

District Court’s dismissal of the claims against Proto.

       Next, we consider the District Court’s decision to grant the LCP Defendants’

motion for summary judgment. The District Court issued a 39-page opinion explaining

why the many claims against these defendants lack merit. For substantially the reasons

set forth in that opinion, we agree with the District Court that the claims discussed therein

lack merit.5 To the extent that Tapp’s complaint intended to raise issues that were not

specifically addressed in that opinion, we conclude that remand is not necessary because

he has not articulated a claim that would survive summary judgment. Accordingly, we

will affirm the District Court’s grant of summary judgment in favor of the LCP

Defendants.

       Lastly, we review the District Court’s dismissal of the claims against the City of

Lancaster for failure to prosecute. As a general matter, before a district court enters such


5
  The District Court analyzed Tapp’s failure-to-protect claim under the Eighth
Amendment, employing the deliberate indifference standard. However, because it
appears that the allegations undergirding this claim stem from Tapp’s time as a pretrial
detainee, the Fourteenth Amendment actually governed this claim. See Thomas v.
Cumberland County, 749 F.3d 217, 223 n.4 (3d Cir. 2014). Nevertheless, the District
Court’s invocation of the Eighth Amendment was harmless because the deliberate
indifference standard applies equally to failure-to-protect claims under the Fourteenth
Amendment. See id.
                                              9
a dismissal, that court must weigh the six factors set forth in Poulis v. State Farm Fire &

Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). See Knoll v. City of Allentown, 707

F.3d 406, 409 (3d Cir. 2013). It does not appear that the District Court considered those

factors in this case. Nevertheless, remand is not necessary because there was an

alternative basis for dismissing the claims against the City of Lancaster. When, as here,

the plaintiff proceeds in forma pauperis, the District Court may dismiss claims sua sponte

if they fail to state a claim upon which relief may be granted and amendment would be

inequitable or futile. See 28 U.S.C. § 1915(e)(2)(B)(ii); Grayson, 293 F.3d at 108. We

have examined the several claims brought against the City of Lancaster and conclude that

dismissal under § 1915(e)(2)(B)(ii) was appropriate as to each of them.6 Accordingly, we

will affirm the District Court’s dismissal of the City of Lancaster from this case.

       In sum, we agree with the District Court’s decision to dismiss the claims against

the Medical Defendants, Proto, and the City of Lancaster. We also agree with the District

Court’s grant of summary judgment in favor of the LCP Defendants. As a result, we will

affirm each of three District Court orders at issue here.




6
 Each of these claims was conclusory in nature and has remained undeveloped in the
more than five years since Tapp filed his complaint.
                                            10
