                                                 NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 10-3685
                                    ___________

                                  JOHN W. TATE,
                                           Appellant

                                          v.

       STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS;
            MORRIS COUNTY CORRECTIONAL FACILITY;
WARDEN FRANK CORRENTE, MORRIS COUNTY CORRECTIONAL FACILITY;
    OFFICER MILLER, MORRIS COUNTY CORRECTIONAL FACILITY;
 OFFICER DELAVECCHIA, MORRIS COUNTY CORRECTIONAL FACILITY;
     JOHN DOE AND JANE DOE 1-10; A.B.C. 1-3, UNKNOWN, ET AL.
               ____________________________________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                         (D.C. Civil Action No. 06-cv-05024)
                    District Judge: Honorable Susan D. Wigenton
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 3, 2011

              Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

                               (Filed: January 6, 2011)
                                    ___________

                             OPINION OF THE COURT
                                  ___________
PER CURIAM.

      John W. Tate appeals pro se from the District Court’s order dismissing his second

amended complaint and denying his motion for entry of a default judgment. For the
following reasons, we will affirm.

                                             I.

       At all relevant times, Tate was a New Jersey state pre-trial detainee. In 2006, he

filed suit against the Morris County Prosecutor’s Office and related parties alleging

various misconduct in relation to his pending criminal charges. The District Court

dismissed Tate’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a

claim, and Tate appealed. We affirmed in part, vacated in part, and remanded. See Tate

v. Morris Cnty. Prosecutors Office, 284 F. App’x 877 (3d Cir. 2008). We agreed with the

District Court that Tate had failed to state a claim, but we were concerned from his

multiple incomplete filings that he was attempting to state claims of denial of access to

the courts and unconstitutionally inadequate medical care. Thus, in light of Tate’s pro se

status, we remanded for the District Court to give him an opportunity to file a single,

concise amended complaint on those claims only. See id. at 880 & n.2. In doing so, we

“emphasize[d] that Tate [was] not to reassert claims that the District Court has already

addressed” or “reallege the conduct allegedly giving rise to those claims.” Id. at 880.

       On remand, the District Court entered an order providing Tate with a period of

time to file an amended complaint and notifying him that it would screen any amended

complaint for possible dismissal under § 1915(e)(2)(B). Tate filed a 48-page amended

complaint, which consisted largely of allegations that we had directed him not to repeat

and otherwise failed to comply with Rule 8 of the Federal Rules of Civil Procedure. On

the defendants’ motion, the District Court struck Tate’s amended complaint for those

                                             2
reasons and gave him one more opportunity to amend. Tate then filed a second amended

complaint, which is materially indistinguishable from his first. The District Court

initially took no action on the complaint, and Tate later filed a motion for a default

judgment. By order entered August 10, 2010, the District Court denied that motion and

dismissed the second amended complaint with prejudice for failure to state a claim. Tate

appeals.1

                                             II.

       The District Court thoroughly reviewed Tate’s second amended complaint and

concluded that it does not state a claim for denial of access to the courts or deliberate

indifference to Tate’s medical needs. In particular, the District Court concluded that Tate

has not identified any non-frivolous legal claim that defendants’ alleged conduct

prevented him from pursuing. See Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008)

(citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). The District Court also

concluded that Tate’s mere allegation that he has been “exposed” to inmates with HIV

and other contagious diseases does not give rise to an inference that Tate (as a pre-trial

detainee) was “punished” in violation of the Fourteenth Amendment. See Stevenson v.


1
  We have jurisdiction pursuant to 28 U.S.C. § 1291. We interpret the District Court’s
sua sponte dismissal of Tate’s second amended complaint as a dismissal before service
under § 1915(e)(2)(B), and our review of that ruling is plenary. See Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000). We review the District Court’s denial of a motion for a
default judgment for abuse of discretion. See Chamberlain v. Giampapa, 210 F.3d 154,
164 (3d Cir. 2000). In addition to filing a second amended complaint, Tate filed a
purported mandamus petition directed at New Jersey state officials, which the District
Court dismissed on June 16, 2009. Tate did not appeal from that order and raises no
issue regarding it on appeal.
                                              3
Carroll, 495 F.3d 62, 67-68 (3d Cir. 2007). For the reasons more fully explained by the

District Court, we agree. We also agree that the District Court properly dismissed the

complaint with prejudice and without leave to amend because no further opportunity to

amend was warranted.

       Tate argues that the District Court should have granted his motion for a default

judgment because the defendants did not file a responsive pleading and should not have

dismissed his complaint in the absence of such a pleading. We reject both arguments.

On remand, the District Court notified Tate that it would screen any amended complaint

pursuant to § 1915(e)(2)(B), and that is what we construe it to have done in its order of

dismissal. Thus, the District Court did not err in denying Tate’s motion for a default

judgment or in dismissing his complaint in the absence of a responsive pleading. See

Roman v. Jeffes, 904 F.2d 192, 195 (3d Cir. 1990) (“[T]he appropriate time to make a

decision to dismiss a case pursuant to [former § 1915(d)] is before service of a

complaint.”).

       Accordingly, we will affirm the judgment of the District Court.




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