                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-2010
                                         ___________

                                     DWAYNE L. RIECO,
                                                 Appellant

                                               v.

LT. BRONSBURG; C/O OSMULSKI; SGT. MAUSTELLAR; DR. CHIAVACCI; C/O
FERRETTI; CAPTAIN FOWLER; C/O TEASDALE; JAMES MCGRADY, FACILITY
      MANAGER; DR. KAPOZA; JOHN JEDDICK; MAUREEN MATISKA
                ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                         (M.D. Pa. Civil Action No. 3-13-cv-00075)
                       District Judge: Honorable Malachy E. Mannion
                        ____________________________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    September 16, 2016

                 Before: CHAGARES, KRAUSE and ROTH, Circuit Judges

                                (Opinion filed: January 4, 2017)
                                        ___________

                                          OPINION *
                                         ___________


PER CURIAM


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Dwayne Rieco, a Pennsylvania prisoner proceeding pro se, appeals an order of the

United States District Court for the Middle District of Pennsylvania dismissing his civil

rights action. For the reasons that follow, we will affirm in part, vacate in part, and

remand for further proceedings.

       On or about January 11, 2013, Rieco filed a complaint claiming that, on January 3,

2013, corrections officers at SCI-Retreat assaulted him. Rieco identified officers who

allegedly shoved his face into a wall, stomped on his foot, and pulled on a tether

connected to his handcuffs that caused his wrists to bleed. Rieco alleged that the officers

sought to punish him for his criminal conviction and that one of them called him a child

molester before the assault. Rieco, who believed that his foot might have been broken,

also claimed that a doctor denied him medical treatment. Rieco also identified an officer

who allegedly issued a false misconduct report in order to cover up the assault. The

defendants moved to dismiss the complaint.

       Rieco then filed a motion to amend his complaint. He sought to add as defendants

prison staff who were involved in his transfer to SCI-Graterford’s mental health unit on

January 17, 2013. Rieco averred that documents were falsified and that he was

transferred without due process in order to cover up the assault and to interfere with his

criminal appeal. The District Court granted Rieco’s motion and required that he file a

single, complete, amended complaint. The District Court advised Rieco that his amended

complaint must stand by itself “without reference to the complaint already filed.”


constitute binding precedent.                 2
9/30/13 Order at 4. The District Court dismissed the motions to dismiss the original

complaint as moot.

       On December 26, 2013, Rieco filed an amended complaint. 1 Rieco alleged that he

had filed a civil rights action claiming that defendants had assaulted him on January 3,

2013, and that on January 17, 2013 he was transferred to SCI-Graterford’s mental health

unit. Rieco averred that prison staff denied him due process and failed to comply with

state law. He stated that he was transferred in retaliation for filing grievances and his

civil rights action. Rieco also raised other claims against staff at SCI-Graterford and

SCI-Pittsburgh, where he was confined when he filed the amended complaint. Rieco

sought to add eighteen new defendants to his action.

       On April 7, 2014, the District Court struck the amended complaint on the grounds

that Rieco had attempted to incorporate the original complaint and add new defendants,

and had not complied with Federal Rule of Civil Procedure 8’s requirement of a short and

plain statement of his claims. The District Court directed the Clerk to provide Rieco the

Court’s form for filing a civil rights action and ordered that he file an amended

complaint. The District Court reiterated that the amended complete must be complete, in

and of itself, without reference to any prior filings. The District Court stated that the



1
 Rieco was afforded additional time to file his amended complaint after he claimed that
his legal materials had been confiscated. Counsel for the defendants informed the
District Court that Rieco’s access was restricted due to his erratic behavior and because
he was found with a lighter. Counsel also stated that Rieco must exchange boxes of his
legal papers because the papers exceed the quantity allowed in a cell.
                                              3
amended complaint shall include, among other things, any and all defendants whom

Rieco sought to name in his action, allegations of the defendants’ personal involvement,

and the constitutional rights he alleges were violated.

       Rieco filed an “appeal,” which the District Court construed as a motion for

reconsideration of its order. Rieco stated that he had moved to amend his complaint in

order to add three defendants who he claimed retaliated against him for filing his original

compliant by committing him to a mental health unit, “not to stop prosecution of the

leading defendants.” Rieco stated that the District Court had said that he “must not

mention anything about the original complaint.” See Pl. Appeal to Order to Amend the

Complaint at 1-2. Rieco asked the Court to allow him to add the new defendants.

       On July 24, 2014, the District Court denied reconsideration because Rieco had not

identified a change in law, new evidence, or the need to correct an error of law or fact.

The District Court stated that the amended complaint was stricken because it did not

satisfy Rule 8 and it was not a separate pleading that did not reference the original

complaint. The District Court also noted that the amended complaint improperly raised

causes of action involving persons located outside of the Middle District of Pennsylvania.

       The District Court afforded Rieco, out of an abundance of caution, one more

opportunity to file an amended complaint. The District Court advised him that an

amendment relates back to the original complaint only when the claim arises out of the

occurrence set forth in the original pleading. The District Court required Rieco to file “a

singular, complete, amended complaint, arising out of the original January 11 [sic], 2013
                                             4
alleged assault . . . .” 7/24/14 Order at 7. The District Court reiterated the requirements

set forth in its prior order, including the requirement that the amended complaint not

reference any prior filings.

       Rieco then filed a brief amended complaint on the District Court’s Civil

Complaint form against the facility manager, two doctors, and a staff member at SCI-

Retreat. Rieco alleged that these defendants retaliated against him on January 17, 2013

by falsifying a petition to unlawfully commit him. He stated that the petition was

withdrawn for lack of evidence and he was released from the mental health unit. He

claimed violations of his rights to due process and equal protection, malicious

prosecution, and official oppression.

       The defendants named in Rieco’s original complaint moved to dismiss the

amended complaint. On March 30, 2015, the District Court granted these motions. The

District Court ruled that Rieco had failed to allege the defendants’ personal involvement

in the claimed constitutional violations. The District Court also ruled that Rieco failed to

state a claim for violations of his rights to due process and equal protection based on

alleged failures to comply with Pennsylvania’s Mental Health Procedures Act. The

District Court also decided that Rieco failed to establish a prima facie case of retaliation

and did not state claims for malicious prosecution or official oppression. This appeal

followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is

plenary. In re Merck & Co., Inc. Sec. Litig., 432 F.3d 261, 266 (3d Cir. 2005).
                                              5
       Rieco argues on appeal that he stated Eighth Amendment claims in his original

complaint and that the District Court erred by prohibiting him from pursuing these claims

after he sought to amend his complaint. The District Court did not prohibit Rieco from

pursuing these claims. To the contrary, the District Court tried to assist Rieco. Rieco,

however, did not understand that when the District Court instructed him to file an

amended complaint “without reference to the complaint already filed,” that it intended

that he file an amended pleading setting forth his original claims and his claims against

the defendants he sought to add to the complaint. Rieco conveyed his misunderstanding

in his filing that was construed as a motion for reconsideration, but the District Court

reiterated the same instruction.

       We conclude that the District Court should adjudicate the Eighth Amendment

claims raised in Rieco’s original complaint under these circumstances. Although a

district court may require a plaintiff to prepare a single, amended pleading when it would

facilitate managing the case, see In re Westinghouse Secur. Litig., 90 F.3d 696, 703 (3d

Cir. 1996), Rieco’s original complaint is well-pleaded, his Eighth Amendment claims are

not frivolous on the face of the complaint, and it is clear that he did not intend to abandon

them. “[W]e tend to be flexible when applying procedural rules to pro se litigants,

especially when interpreting their pleadings.” Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 244 (3d Cir. 2013). We also note that the Federal Rules of Civil Procedure allow a

plaintiff to incorporate a pleading by reference. Fed. R. Civ. P. 10(c). See also West Run

Student Hous. Assoc., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013)
                                              6
(“[T]he amended complaint ‘supersedes the original and renders it of no legal effect,

unless the amended complaint specifically refers to or adopts the earlier pleading.’”).

       Rieco also argues, relying on Vitek v. Jones, 445 U.S. 480 (1980), that the District

Court erred in dismissing his Fourteenth Amendment due process claim based on his

involuntary commitment to the mental health unit at SCI-Graterford without notice and a

hearing. Rieco states that he was transferred to the mental health unit on January 17,

2013, that a hearing was held on January 29, 2013 and the involuntary commitment

petition was withdrawn, that he was not subject to involuntary treatment, and that he was

released from the mental health unit. Rieco has not shown based on these circumstances

that he states a claim under Vitek, which required procedural protections before an

inmate was transferred to a state mental health hospital for purposes of treatment. Vitek,

445 U.S. at 494. Rieco was afforded a hearing shortly after his transfer and was released.

       Rieco also asserts in his brief that the District Court erred in dismissing his claim

that his Fourth Amendment rights were violated based on the prison’s seizure of legal

materials related to his criminal case, which impeded his ability to challenge his

conviction. He also contends that his First Amendment rights were violated on the same

basis. Rieco’s Fourth Amendment claim was raised in his original complaint and not

adjudicated below, but the Fourth Amendment has no application here. See Ker v. State

of California, 374 U.S. 23, 30 (1963) (noting Fourth Amendment forbids the government

from convicting a person of a crime using evidence obtained by an unreasonable search

and seizure). To the extent Rieco claims a First Amendment violation, the pleadings he
                                              7
filed do not state a claim for relief and he has not shown that further amendment is

warranted. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (First Amendment

access to courts claim must identify a non-frivolous, arguable claim that was lost).

       Finally, to the extent Rieco challenges the dismissal of his retaliation claim, that

claim was properly dismissed because his amended complaint did not include sufficient

factual content to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Even if Rieco omitted allegations related to the filing of his original complaint in

an effort to follow the District Court’s instructions, his final amended complaint did not

contain sufficient facts as to each defendant’s alleged misconduct. See id. Rieco’s prior

amended complaint that was stricken by the District Court was similarly deficient.

Because Rieco had two opportunities to plead his retaliation claim, another opportunity is

not warranted. 2

       Accordingly, we will affirm in part and vacate in part the judgment below and

remand for adjudication of Rieco’s Eighth Amendment claims set forth in his original

complaint.




2
 To the extent Rieco makes other allegations and claims in his brief, they are not
adequately developed for purposes of appellate review and we do not consider them.
                                            8
