                                                          NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        ________________

                               No. 12-2816
                            ________________


                           MELANIE POLLIS,

                                          Appellant

                                     v.

    BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF SUSSEX,
   STATE OF NEW JERSEY; OFFICE OF THE SUSSEX COUNTY SHERIFF;
  ROBERT UNTIG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY OF
        SUSSEX COUNTY SHERIFF; THE STATE OF NEW JERSEY;
      CORRECTIONS OFFICER ALLISON MURRAY, INDIVIDUALLY
 AND IN HER OFFICIAL CAPACITY; SGT. RON DUENSKIE, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY; DAWN VAHALY; LIEUTENANT MANNO;
  JOHN DOES 1-99, WHO ARE FICTICIOUS AND PRESENTLY UNKNOWN
  PERSONS, ENTITIES AND BODIES POLITIC IN THEIR INDIVIDUAL AND
                       OFFICIAL CAPACITIES
                         ________________

                Appeal from the United States District Court
                        for the District of New Jersey
                  (D.C. Civil Action No. 2-09-cv-03009)
                District Judge: Honorable Stanley R. Chesler
                             ________________

                Submitted Under Third Circuit LAR 34.1(a)
                             June 14, 2013

   Before: McKEE, Chief Judge, AMBRO, and GREENBERG, Circuit Judges

                       (Opinion filed: June 21, 2013)
                                     ________________

                                         OPINION
                                     ________________

AMBRO, Circuit Judge

       Appellant Melanie Pollis appeals the District Court‟s decision to deny

reconsideration of its earlier holding that Pollis did not include in her complaint a failure-

to-protect claim. Because we conclude that Pollis adequately pled such a claim, we

reverse the District Court‟s denial of reconsideration and vacate the underlying order to

the extent it rejected Pollis‟ failure-to-protect claim.

       The procedural history of this matter is convoluted, and we recount only the

necessary facts.1 Pollis was incarcerated at the Keogh-Dwyer Correctional Facility in

Newton, New Jersey. In July of 2007, she was attacked by another inmate. She brought

a number of claims against the Defendants. In her third amended complaint, Pollis

alleged a violation of her right to be free of cruel and unusual punishment under the

Eighth Amendment. Although Pollis‟ complaint never specifically mentioned the failure-

to-protect aspect of the Eighth Amendment, this theory was invoked within her brief in

opposition to the Defendants‟ motion to dismiss her complaint. See Pl.‟s Br. in Op. at

14–15 (Dist. Ct. ECF No. 42). The District Court denied the motion to dismiss to the

extent it pertained to “the right to be free of cruel and unusual punishments,” but made no

1
  The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a), and we
have jurisdiction under 28 U.S.C. § 1291. “We generally review the District Court‟s
denial of reconsideration for abuse of discretion. However, to the extent that the denial
of reconsideration is predicated on an issue of law, such an issue is reviewed de novo.”
Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999)
(citations omitted).
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mention of a failure-to-protect theory. Pollis v. Bd. of Chosen Freeholders of Cnty. of

Sussex, No. 09-3009, 2010 WL 2989884, at * 4 (D.N.J. July 27, 2010).

       Following that order, Pollis‟ new counsel moved to amend the complaint to

include an Eighth Amendment failure-to-protect claim. In support of that motion, Pollis‟

counsel certified that no such claim was included in any of the prior complaints (which

were authored by prior counsel). Pollis‟ new counsel subsequently withdrew that motion,

apparently believing it to be “superfluous.” Appellant‟s Br. at 3.

       After discovery, Defendants moved for summary judgment. In resolving that

motion, the District Court explained that it did not address Pollis‟ Eighth Amendment

failure-to-protect claim at the motion to dismiss stage because she “did not raise it.”

Pollis v. Bd. of Chosen Freeholders of Cnty. of Sussex, No. 09-3009, 2012 WL 1118769,

at *2 (D.N.J. Apr. 3, 2012). The Court explained that Pollis‟ brief in opposition to the

motion to dismiss did not assert such a claim, and also noted that counsel‟s certification

amounted to “clumsy gamesmanship.” Id. at *2 n.1. Pollis moved for reconsideration,

which the Court denied by citing only the earlier declaration.

       We conclude that the District Court should have addressed on the merits Pollis‟

failure-to-protect claim. “[T]he Eighth Amendment‟s prohibition against cruel and

unusual punishment . . . impose[s] a duty upon prison officials to take reasonable

measures „to protect prisoners from violence at the hands of other prisoners.‟” Hamilton

v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825,

833 (1994)). Although Pollis did not articulate carefully this particular theory in her third

amended complaint, she pled an Eighth Amendment claim on the basis of the attack and

                                              3
she pointed to a failure-to-protect theory in opposition to the Defendants‟ motion to

dismiss. As such, Pollis presented a short and plain statement showing her entitlement to

relief for failure-to-protect. See Fed. R. Civ. P. 8(a)(2); see also 5 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1216, at 220–27 (3d ed. 2004)

(explaining that a complaint need only contain “direct allegations on every material point

necessary to sustain a recovery on any recognizable legal theory, even though that theory

may not be the one suggested or intended by the pleader”); see, e.g., Flickinger v. Harold

C. Brown & Co., Inc., 947 F.2d 595, 600 (2d Cir. 1991) (“[F]ederal pleading is by

statement of claim, not by legal theory.”). That Pollis‟ counsel equivocated as to whether

prior counsel had included this theory does not alter our legal calculus.

       We therefore reverse the District Court‟s denial of reconsideration, vacate the

April 3, 2012 order of that Court as to the Eighth Amendment failure-to-protect claim,

and remand for further proceedings on that claim.




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