                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                           Nos. 10-4434 & 11-1229
                                ___________

                      HENRY UNSELD WASHINGTON,
                                    Appellant

                                     v.

     JAMES L. GRACE; DAVID J. WAKEFIELD; R. M. LAWLER; MELVIN S.
LOCKETT; DORINA VARNER; S. GLUNT; J. FISHER; K. KAUFFMAN; BARBARA
HOLLIBAUGH; SCOTT WALTER; M. HARMAN; Lt. JOHNSON.; G. WALTER; Lt.
BAIRD.; Lt. R. LALLI.; T. HOLTZ; J. EWING; R. COOPER; Sgt. JOHNSON.; Sgt. S.
    MIRABELLA.; Sgt. BUSKO.; Ms. AMY R. GINTER; Ms. P. GRISSINGER; A.
  STRATTON; DANNILLE GEORGE; YOUNKER; M. B. MCKNIGHT; Corrections
Officer S. GRASSMEYER; R. PROKOP; L. J. RHODES; M. MILLS; F. G. MILLS; M.
 W. LONG; N. G. BARTLEY; C. V. TADDEI; LEHMAN; C. F. YEDOLOSKY; J. K.
       YOST; D. DECKER; Corrections Officer D. J. EVERHART ; HALL; Mr.
   SHOWALTER; M. D. DONALDSON; R. A. STEVER; Corrections Officer M. A.
    GARZARELLA; J. BARR; N. L. GROVE; B. R. SEMPLE; C. L. HAND; A. L.
GOODWIN; W. C. COLEGROVE; A. J. JONES; S. BRUSH; WHEATLAN; TIMOTHY
 PROUGH; L. SMITH; B. SMITH; B. BUTLER; MCCLAIN; HOSLER; MARY LOU
   SHOWALTER; Dr. ROMEO; Dr. ARANEDA.; Dr. SOLOMON.; F. KLEMICK;
ROBERT ATLMAN; Dr. LONG.; Ms. D. MILLS.; Ms. A. BROWN.; MS. A. AUMAN;
 WALTER WILLIAMS, Prison Health Services Nurse Supervisor; T. C. GEMBINKSI;
HARRY E. WILSON; Deputy Warden LINDA D. HARRIS; Deputy Warden MARK A.
    KRYSEVIG; CAROL SCIRE; EDWARD MANCHAS; SCOTT NICKELSON;
 MICHAEL ZAKEN; CHARLES POWLEY; Lt. MOZINGO; Lt. CRUMB.; GEORGE
REPOSKY; JON TUSTIN; GARY ABRAMS; CHRISTINA SORBIN; ROY BARNES;
    Sgt. SHOMPERT; SNYDER; CRUTCHMAN; DOBRYZINSKI; PEASTRACK;
     KOVAL; RICHTTER; MARK POWELL; HAYDEN; D. EVANS; ROBERT
    TRETINIK; M. HERBIK, Doctor for PHS; CHRISTOPHER MEYER; PRISON
 HEALTH SERVICES, INC.; SHARON M. BURKS; MICHAEL FARNAN, PA DOC
Chief Counsel; ALLAN B. FOGEL; WILLIAM S. STICKMAN; JOHN S. SCHAFFER;
     SHIRLEY MOORE; *SECRETARY PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; C. RODDY, Corrections Officer-SCI Huntingdon; PEER; DARNEY;
 EBY; KENDRICK; DICKSON; STEVENS; Sgt. BUMGARDENER; Sgt. CLAPPER.;
 PAIGE; CHILCOT; EBERLING; J. MARTELL; MCCLOSKEY, Corrections Officer-
  SCI Huntingdon; SCHROYER; NELSON; J. J. MAINELLO; CAMPBELL; PYLE;
WESTOVER; Dr. SHOAF; Mr. HARRY POLAND; ROY BARNES; KYLE; KYLER;
  MICHAEL KOLOPOTOSKI, SCI-Dallas Warden; S. BOHINSKI, Doctor for PHS;
   O’BRIEN, Physicians’ Assistant; JOSEPH F. MAZURKIEWICZ, SCI Pine Grove
   Warden; Ms. DUREE AHMED, Doctor for PHS; LOUIS S. FOLINO, SCI Greene
 Warden; MARK CAPOZZA, SCI Deputy Warden; JEFFERY MARTIN, SCI Deputy
      Warden; DANNY DAVIS, SCI Wardens Assistant; DIANE THOMAS, SCI
Administrative 2; LORINDA WINFIELD, SCI Major; C. HAYWOOD, SCI Captain of
 Security; P. WALKER, SCI RHU Commander; Lt. DURCO, SCI H-Block Lieutenant;
Lt. ARMSTRONG, SCI H-Block Lieutenant; Sgt. FARRIER, SCI H-Block Sergeant; D.
SWART, SCI Counselor; IRMA VIHLIDAL, PHS Health Care Administrator; NEDRA
  GREGO, Nurses Supervisor for PHS; JOHNNY MCANANY, Nurses Supervisor for
   PHS; ROBERT DIETZ, Psychiatric Coordinator for PHS; B. JIN, Doctor for PHS;
    MICHELE ANTANOVICH, Nurse Practitioner for PHS; MICHELE HOWARD-
  DIGGS, Physicians Assistant for PHS; ASSAD KAHN, Psychiatrist for PHS; LORI
    WHITE, PA DOC Deputy Commissioner; J. SMITH, Corrections Officer; G. C.
                                     BERGER


                    *(Pursuant to Rule 43(c), Fed. R. App. P.)

                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                         (D.C. Civil No. 4-08-cv-01283)
                  District Judge: Honorable John E. Jones III
                  ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                              September 23, 2011

     Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

                      (Opinion filed: September 26, 2011 )
                                   _________

                                   OPINION
                                   _________


                                        2
PER CURIAM
         On June 24, 2008, Commonwealth of Pennsylvania prisoner Henry Unseld

Washington commenced this lawsuit, the second of at least two he lodged against a

similar, capacious set of defendants.1 As before, his lengthy, handwritten complaint

charged a series of constitutional and other violations, most predicated on conspiratorial

retaliation, ranging from the serious (physical and sexual assault) to the trivial (denial of

toenail clippers; targeted, tobacco-saturated expectorate) to the outright bizarre

(contamination of cell with “renowned cancer-causing juice”). The defendants were,

again, staff members and others associated with a series of Pennsylvania state prisons:

SCIs Greene, Fayette, Huntingdon, Dallas, and Pine Grove. Washington requested, inter

alia, compensatory damages, replacement of his damaged property, injunctive relief

(including commutation of his life sentence, facially prohibited by Preiser v. Rodriguez,

411 U.S. 475, 500 (1973)), and surgery to reverse his “genital dysmorphism.” This new

case, which addressed conduct spanning from June 30, 2004, to (by the third amended

complaint)2 May 2010, substantially overlapped with the previous case, M.D. Pa. Civ.

No. 4-07-cv-00867; indeed, several of the allegations were identical. Accompanying

Washington’s complaint was a flurry of motions and declarations, most of which were


1
 We have provided greater detail about Washington and the background of his
complaints in Washington v. Grace, Nos. 10-3619 & 10-4258 (3d Cir.).
2
  See Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010) (holding that the Prison
Litigation Reform Act allows for an amended complaint to allege new and newly
exhausted claims addressing incidents that had not yet transpired at the original time of
filing).
                                              3
denied by the District Court.

              The Magistrate Judge assigned to the case ultimately recommended

dismissal of Washington’s third amended complaint due to its “failure [to] comply with

the in forma pauperis requirements and failure to state a claim upon which relief can be

granted.” Washington v. Grace, No. 4:08-CV-1283, 2010 U.S. Dist. LEXIS 125360, at

*14–15 (M.D. Pa. Nov. 9, 2010). The Magistrate Judge identified numerous flaws in the

complaint, including: its failure to comply with Federal Rule of Civil Procedure 8(a), see

id. at *19–21; its inclusion of conduct occurring outside of applicable statutes of

limitations, see id. at *21–26; and its problematic choice of venue, see id. at *26–30.

Elsewhere, the Magistrate Judge determined that Washington’s Eighth Amendment

medical treatment and First Amendment retaliation claims lacked merit. Id. at *30–47.

The District Court agreed, adopting the Magistrate Judge’s Report and Recommendation

in its entirety. Thereafter, it denied Washington’s timely filed motions for relief from

judgment (pursuant to Federal Rule of Civil Procedure 60(a)) and for reconsideration,

after which Washington filed a timely notice of appeal.3



3
  Washington actually filed two separate notices of appeal. The first was submitted in
response to the District Court orders that dismissed his second amended complaint and
denied as moot various miscellaneous requests; this notice corresponds to C.A. No. 10-
4434. The second, as described above, was timely filed after the denial of his motions for
relief and for reconsideration, and corresponds to C.A. No. 11-1229. See Fed. R. App. P.
4(a)(4)(A). As the cases have been consolidated, and as we clearly have jurisdiction by
virtue of the second notice of appeal, we need not consider whether we properly had
jurisdiction at the time of Washington’s first appeal. Cf. Cape May Greene, Inc. v.
Warren, 698 F.2d 179, 185 (3d Cir. 1983) (“[A] premature appeal taken from an order
                                             4
              We have jurisdiction over final orders of the District Court pursuant to 28

U.S.C. § 1291, and conduct plenary review of a District Court’s sua sponte dismissal of a

complaint. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

Washington is a pro se litigant; hence, his complaint is to be construed liberally and held

“to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

404 U.S. 519, 520 (1972) (per curiam); see also Higgs v. Att’y Gen., ___ F.3d ___, 2011

U.S. App. LEXIS 17748, at *12–14 (3d Cir. Aug. 25, 2011, No. 09-3128). “We accept

all well-pleaded allegations in the complaint as true and draw all reasonable inferences in

[Washington’s] favor.” McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009).

In order to resist dismissal, a complaint must contain more “more than labels and

conclusions[;] a formulaic recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Motions for reconsideration are

reviewed for abuse of discretion.4 Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.



which is not final but which is followed by an order that is final may be regarded as an
appeal from the final order in the absence of the showing of prejudice to the other
party.”) (emphasis in original) (quoting Richerson v. Jones, 551 F.2d 918, 922 (3d Cir.
1977)). See also Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per
curiam).

As the defendants were never served, they are not participating in this appeal.
4
  Washington’s Rule 60(a) motion attacked the District Court’s “premature” adoption of
the Report and Recommendation, which did not allow time for his objections to arrive at
the court; indeed, the District Court’s order adopting the Report and Recommendation
observes that “no objections are made to a magistrate judge’s report and
recommendation.” Washington v. Grace, No. 4:08-cv-1283, 2010 U.S. Dist. LEXIS
125365, at *1 (M.D. Pa. Nov. 29, 2010). As we conduct de novo review of the record,
                                             5
1985).

              As a preliminary matter, we do not agree with the District Court’s Rule 8(a)

and venue-based rationales for dismissing the complaint. In an earlier appeal, addressing

a similar Rule 8(a) dismissal of Washington’s first lawsuit, we observed that his

complaint, while lengthy and “lack[ing] clarity in some places,” was neither

unanswerable nor unintelligible. Washington v. Grace, 353 F. App’x 678, 680–81 (3d

Cir. 2009) (non-precedential per curiam). The same reasoning applies to the present

complaint. Similarly, while Washington’s allegations of a far-flung conspiracy at various

prisons are, at times, outlandish, we cannot conclude that this rendered the parties

improperly joined; and, in any case, misjoinder is not grounds for dismissing an action.

Fed. R. Civ. P. 21. The case, as filed, complies with the requirements of 28 U.S.C.

§ 1391(b), and Washington persuasively argues in his appellate brief that Middle District

venue was proper, given the weight of violations occurring in that district.5

              Since Washington initiated this lawsuit on June 24, 2008, see Houston v.



see Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011) (failure to object to Report
and Recommendation changes standard of review when pro se plaintiff is warned of the
consequences), this alleged mistake is harmless.
5
 Mincy v. Klem, 303 F. App’x 106 (3d Cir. 2008) (nonprecedential per curiam), relied
upon by the District Court, does not support its venue outcome. In Mincy, the “District
Court correctly concluded that [the plaintiff’s] attempts to incorporate separate and
unrelated claims against parties from other lawsuits [we]re inappropriate”; however, as
Rule 21 prohibited dismissing due to misjoinder, and as the court’s alternative dismissal
under Rule 41(b) was improper, we vacated and remanded when dismissal was
predicated on those two grounds. Id. at 107–09. Nowhere in Mincy did we equate overly
broad joinder with initiation of suit in an improper venue.
                                             6
Lack, 487 U.S. 266, 276 (1988), the two-year statute of limitations for 42 U.S.C. § 1983

actions in Pennsylvania bars recovery for conduct taking place before June 24, 2006. See

Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); see also Oshiver v. Levin, Fishbein,

Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994) (explaining that a complaint

can be dismissed for statute-of-limitations violations when “the complaint facially shows

noncompliance with the limitations period and the affirmative defense clearly appears on

the face of the pleading”). Looking to the third amended complaint, which was used by

the District Court in making its final disposition, we observe that paragraphs one through

92 refer exclusively to activity before the two-year cutoff. Therefore, none of those

factual grounds can properly support a claim (with one exception, discussed infra).

              We are similarly in accord with the majority of the District Court’s

reasoning on Washington’s Eighth Amendment and First Amendment retaliation claims.

Washington did not successfully plead deliberate indifference by the defendants to his

serious medical needs, see Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 320 (3d Cir.

2005), nor did he show that most of the alleged retaliation by the defendants would deter

a person of ordinary firmness from exercising his constitutional rights,6 see Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003); moreover, many of the defendants were not



6
  To the extent that the District Court relied on the burden-shifting test of Rauser v. Horn,
241 F.3d 330, 333–34 (3d Cir. 2001), we observe that the test is not generally appropriate
in a dismissal context; to consider plaintiff’s causal averments as “rebuttable” at this
stage is at odds with the requirement that a court take them to be true.

                                              7
shown to have personal involvement in any underlying constitutional violation, see

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

              However, we have identified several claims that, on their face, pass

substantive muster. Specifically, the following paragraphs of the third amended

complaint contain allegations of retaliation, excessive force, and sexual assault that

appear to state a claim upon which relief could be granted: 88,7 103–04, 108, 112, 118,

122, 131, 145, 221, 239, 339, and 356–57.8 With regard to these claims, we will vacate

the District Court’s judgment and remand for further proceedings. We are mindful that

several of the claims we have identified may overlap with or be otherwise barred by their

identical or similar cousins in Washington’s previous appeal; to cite just one example,

paragraph 88 describes similar conduct to paragraph 51 of the final amended complaint in

Washington’s other appeal. As this situation raises case-management concerns, and as


7
 This paragraph describes activity occurring on or around May 14, 2006, narrowly
outside of the limitations period. As the pursuit of prison grievances may toll the
applicable statute of limitations, see Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005),
we will include this claim in our remand out of an abundance of caution.
8
  Washington’s third amended complaint sheds most of the factual detail of his second
amended complaint. While the averments in the second amended complaint were, at
times, outrageous, they compare favorably to their equivalents in the third amended
complaint, and better avoid the “conclusory,” pleading-elements-of-claim character that
typifies the retaliation claims of his third amended complaint. As Washington indicated
that he excised this material in an attempt to comply with the District Court’s instruction
to simplify his complaint, we have extended him the equitable courtesy of referring, at
times, to his second amended complaint in determining whether certain allegations merit
remand, mindful of the general rule that an amended complaint supersedes the original,
see Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002).

                                             8
neither case has the finality required for res judicata, we leave it to the District Court to

best determine how to proceed.

              For the foregoing reasons, we will affirm in part, vacate in part, and remand

for further proceedings.




                                               9
