                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2654
                                       ___________

                                 MICHAEL F. KISSELL,
                                               Appellant

                                             v.

          DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL
         INSTITUTE OF LAUREL HIGHLANDS; PENNSYLVANIA STATE
                 CORRECTIONS OFFICERS ASSOCIATION
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3:15-cv-00058)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 23, 2015

         Before: AMBRO, GREENAWAY, JR. and SLOVITER, Circuit Judges

                           (Opinion filed: December 11, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Michael F. Kissell, proceeding pro se, appeals from an order of the

United States District Court for the Western District of Pennsylvania dismissing his

complaint for failure to state a claim. For the reasons set forth below, we will affirm in

part and vacate in part the District Court’s order and will remand for further proceedings.

       Kissell commenced this civil action by filing a pro se complaint naming the

Pennsylvania Department of Corrections (“DOC”) and the Pennsylvania State

Corrections Officers Association (“PSCOA”)1 as Defendants. Kissell is a retired

corrections officer who previously was employed by the DOC at both State Correctional

Institution-Greensburg (“SCI-Greensburg”) and State Correctional Institution-Laurel

Highlands (“SCI-Laurel Highlands”). In 1997, Kissell, represented by counsel, filed suit

against the DOC and the American Federation of State, County and Municipal

Employees 2 pursuant to Title VII of the Civil Rights Act of 1964 (“the 1997 action”)

alleging, inter alia, that he was terminated in retaliation for reporting incidents of sexual

harassment at SCI-Greensburg. The 1997 action proceeded to trial, and in 2002 a jury

returned a verdict in favor of Kissell on the retaliation claim.3 The jury awarded Kissell

approximately $500,000 in compensatory damages, back pay, and lost benefits. Post-trial




1
      During his employment with the DOC, Kissell was a member of the Collective
Bargaining Unit represented by the PSCOA.
2
      The AFSCME was the predecessor of the PSCOA.
3
      The jury, however, rejected Kissell’s sexual harassment claim.
                                            2
motions and an appeal by the DOC4 culminated in Kissell’s reinstatement with the DOC

at SCI-Laurel Highlands in 2004 and a $70,000 award of front pay.

       Almost eighteen years after he initially filed suit, Kissell filed the complaint at

issue here. Although the complaint is difficult to decipher, it appears that his primary

allegations relate to the structure, payment schedule, and tax consequences of the award

from the 1997 action, as well as alleged wrongdoing of various individuals as to that

award, including his former counsel and DOC employees. Additionally, Kissell makes

allegations of ongoing harassment and retaliation that continued from the time of his

reinstatement until his retirement in 2014. He does not elaborate regarding the specific

nature and timing of these purported incidents. The DOC and the PSCOA separately

moved to dismiss Kissell’s complaint pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6).

       The Magistrate Judge recommended granting the motions to the extent Kissell’s

complaint related to the structure and payment of the award in the 1997 action. However,

the Magistrate Judge concluded that leave to amend was warranted with respect to the

claims of continued hostility, retaliation, and harassment given that Kissell’s civil rights

complaint suffered from a lack of factual specificity rather than a flawed legal theory.

The Magistrate Judge put the parties on notice that they had fourteen days to file written


4
       On appeal, the DOC challenged the adequacy of the evidence in support of the
jury’s verdict on retaliation, certain aspects of the damages awarded, and the District
Court’s order granting reinstatement. We affirmed. See Kissell v. Am. Fed’n of State,
Cty. & Mun. Employees, 90 F. App’x 620 (3d Cir. 2004) (unpublished).
                                               3
objections and added that, within that time, Kissell should file an amended complaint

adequately alleging facts in support of his claims for hostility, retaliation, and harassment

beyond those related to the award in the 1997 action. Kissell filed a document entitled

“Plaintiff[’s] Reply to Report and Recommendation,” which appears to be a hybrid

amended complaint/written objections. The District Court conducted a de novo review of

the record, adopted the Report and Recommendation, granted the motions, and dismissed

Kissell’s complaint for failure to state a claim, without further leave to amend. The

District Court explained that, “whether considered as objections or as an amendment to

the complaint[,]” Kissell’s hybrid filing failed to allege a claim for relief against either

Defendant.

       Kissell filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review a Rule 12(b)(6) dismissal de novo. See Phillips v. County of

Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). To survive dismissal, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007) (internal citation omitted)).

Complaints filed pro se must be liberally construed, see Erickson v. Pardus, 551 U.S. 89,

94 (2007), and we must “accept all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine whether, under any reasonable
                                                4
reading of the complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 233

(citation and internal quotes omitted).

       We agree with the District Court that dismissal of Kissell’s complaint was proper

to the extent he asserted claims regarding the judgment award from the 1997 action.

Kissell previously sought to challenge various aspects of this award; those challenges

were rejected by the District Court in the 1997 action, and that judgment was affirmed on

appeal. See Kissell v. Am. Fed’n of State, Cty. & Mun. Employees, 202 F. App’x 568

(3d Cir. 2006). Moreover, Kissell’s ability to challenge that award is not limitless and

cannot be accomplished by bringing an entirely new action. Accordingly, the District

Court’s dismissal of the complaint was proper as it related to claims arising from the

award in the 1997 action. Because Kissell’s claims as to that award could not be brought

by a separate action, amendment would have been futile and dismissal with prejudice was

proper. We, therefore, will affirm the District Court’s order in part.

       We do not affirm the order in its entirety because Kissell’s complaint did more

than simply challenge the 1997 award. Kissell titled his complaint as one for

employment discrimination; he specifically noted that he was bringing his action based

on Title VII, and he checked off boxes on the form indicating that he was being

discriminated against on the basis of his race, gender, and disability. Kissell asserted that

he was being discriminated against at SCI-Laurel Highlands for “[f]ollowing orders of

management” and was “ordered to cease from proceeding through the [c]hain of

command involving reported harassment of staff by staff and other violations of [l]aw.”
                                              5
(Kissell’s Compl. ¶ 9h). Kissell also alleged continuing hostility, harassment and

retaliation that took place from the time he was reinstated at SCI-Laurel Highlands until

he retired. He contends that staff members at SCI-Laurel Highlands, including

management, as well as union stewards, were involved in these incidents.5

       As iterated in his complaint, Kissell’s claims of continued hostility, harassment,

and retaliation were vague and too speculative to survive dismissal. See Bell Atl. Corp.,

550 U.S. 555 (holding that “[f]actual allegations must be enough to raise a right to relief

above the speculative level” to avoid dismissal). That said, the claims were not per se

invalid or based on a flawed legal theory, and Kissell has attempted to clarify those

claims (or to seek an opportunity to do so) in his “Reply” to the Report and

Recommendation and his appellate brief, as well as in the documents filed in support of

his appeal before this Court.

       “[I]n civil rights cases district courts must offer amendment—irrespective of

whether it is requested—when dismissing a case for failure to state a claim unless doing


5
        Unfortunately, the briefing by Appellees focuses primarily on issues related to
Kissell’s purported § 1983 claim and Kissell’s attempt to revive challenges to the
payment of his jury award. For example, the DOC argues that the Eleventh Amendment
bars a civil rights action against the DOC because it is an arm of the state that is not
subject to suit under § 1983 and further asserts that any claims under § 1983 are barred
by the two year statute of limitations. Similarly, the PSCOA characterizes Kissell’s
complaint as his “attempt to re-litigate pay and benefits issues previously raised and
completely adjudicated” in the 1997 action. The PSCOA also argues that Kissell’s action
is barred under the two year statute of limitations governing § 1983 actions and that the
PSCOA is not a state actor under § 1983. These arguments fail to appreciate that
Kissell’s complaint did more than make allegations regarding the 1997 judgment and
sought to bring claims under Title VII as well as § 1983.
                                              6
so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors,

Inc., 482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103,

108 (3d Cir. 2002). Although the Magistrate Judge’s Report and Recommendation

clearly contemplated the need to provide Kissell leave to amend, the District Court

dismissed Kissell’s complaint without leave to amend and without determining whether

amendment would be futile or inequitable. The DOC notes that the District Court did not

provide any reasons for dismissing Kissell’s complaint with prejudice and acknowledges

that Kissell’s failure to meet Iqbal’s plausibility standard “only justifie[d] dismissal

without prejudice and the extension of leave to file an amended complaint[,]” as opposed

to a dismissal with prejudice on all claims. Although the DOC asserts that we may affirm

because amendment would be futile, we disagree. We cannot say that amendment would

be futile as to Kissell’s claims of ongoing hostility, harassment, and retaliation. We will

vacate that portion of the District Court’s order. If Kissell can support those claims, such

as by providing specific details regarding his allegations – the who, what, when, and

where that will enable an assessment of his claims – the claims may survive dismissal.

Therefore, it is not clear that amendment would be futile, and the District Court erred by

dismissing Kissell’s complaint in its entirety without granting him leave to amend. See

Fletcher-Harlee, 482 F.3d at 251; see also Weston v. Pennsylvania, 251 F.3d 420, 428 (3d

Cir. 2001) (recognizing that plaintiff should have been granted leave to amend in Title

VII action to make additional factual allegations sufficient to support a Title VII claim),


                                              7
abrogated on other grounds by Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53

(2006).

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

further proceedings consistent with this opinion. On remand, the District Court may

wish to consider whether appointment of counsel is warranted in accordance with the

provisions of Title VII under the circumstances here.6 See 42 U.S.C. § 2000e-5(f)(1)

(providing that “[u]pon application by the complainant and in such circumstances as the

court may deem just, the court may appoint an attorney for such complainant.”)




6
       Although Kissell has not yet sought appointment of counsel, he begins his Reply
to the Report and Recommendation by stating, “Once again the plaintiff would inform the
Court that he is not an attorney” and asking for “some leniency in the presentation.” He
concludes his response to the PSCOA’s motion to dismiss by explaining that he “does not
understand a lot of the information” presented in the motion. Response at 5, ¶ 59.

                                            8
