                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 16-1981
                                ___________

                       CURTIS CLAY PHILLIPS, JR.,
                                          Appellant

                                      v.

       SUPERINTENDENT CHESTER SCI; MICHAEL CRISEITELLO,
    LIEUTENANT; SAMUEL ALLEN, LIEUTENANT; MAJOR, "APONTE";
        CAPTAIN, "MORRIS"; CORRECTIONS OFFICER "COONS';
        LIEUTENANT "B. ADAMS"; LIEUTENANT "THOMPSON";
CORRECTIONS OFFICER "COLON"; KITCHEN SUPERVISOR "MS. WILLIAMS";
   DOCTOR "HAREWOMB"; MAILROOM SUPERVISOR "MS. MORALES";
  SIX JOHN DOE CERT TEAM MEMBERS; ONE JOHN DOE LIEUTENANT;
       CORRECTIONS OFFICER "MCCLAIN"; SERGEANT "SPELLS";
              HEAD KITCHEN SUPERVISOR JOHN DOE

                 ____________________________________

               On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                     (D.C. Civil Action No. 2-14-cv-05086)
               District Judge: Honorable Thomas N. O’Neill, Jr.
                 ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               July 14, 2017

     Before:   GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges

                        (Opinion filed: June 19, 2018)
                                       ___________

                                        OPINION *
                                       ___________
PER CURIAM

       Appellant Curtis Clay Phillips, Jr., appeals pro se from the District Court’s order

dismissing his second amended complaint. For the reasons that follow, we will affirm

that decision in part, vacate it in part, and remand for further proceedings.

                                              I.

       Phillips is a Pennsylvania state prisoner who, at all relevant times, has been

incarcerated at the State Correctional Institution at Chester (“SCI-Chester”). In 2014, he

filed a pro se civil rights action in the District Court. He later filed two amended

complaints. His second amended complaint was brought against 13 named SCI-Chester

employees (“the Commonwealth Defendants”), eight John Doe SCI-Chester employees

(“the Doe Defendants”), and a Dr. Harewomb (who apparently is not a Commonwealth

employee but allegedly provided medical services at SCI-Chester). Phillips raised claims

concerning (1) the food that he received, (2) his access to medical care, (3) the alleged

tampering/opening of his legal mail, and (4) an alleged beating he suffered at the hands of

some of the Doe Defendants. 1



*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Although Phillips’s second amended complaint technically listed five claims, the fifth
claim merely “provide[d] additional allegations in support of his four other claims.”
(Dist. Ct. Mem. entered Mar. 4, 2016, at 2 [hereinafter Dist. Ct. Mem.].)

                                              2
       The Commonwealth Defendants moved to dismiss the second amended complaint

and, in the alternative, sought summary judgment. They argued that (a) Phillips’s

pleading was barred by the Eleventh Amendment to the extent that it was brought against

them in their official capacities, (b) Phillips had failed to exhaust his administrative

remedies, and (c) Claims 1 through 3 failed to state a claim under Federal Rule of Civil

Procedure 12(b)(6). Phillips opposed the motion.

       The District Court treated the motion as a request for dismissal, not summary

judgment. In its opinion, the District Court began by determining that Phillips’s claims

were barred by the Eleventh Amendment to the extent that he sought damages against the

Commonwealth Defendants in their official capacities. The District Court then examined

Phillips’s claims to the extent that they sought (a) prospective injunctive or declaratory

relief, and/or (b) damages against the Commonwealth Defendants in their individual

capacities. The District Court determined that dismissal of these claims for lack of

exhaustion was not appropriate (because the exhaustion issue was not clear from the face

of Phillips’s second amended complaint), and it turned to the claims’ merits. The District

Court agreed with the Commonwealth Defendants that Claims 1 through 3 failed to state

a viable claim against them. Although the Commonwealth Defendants’ motion did not

address the merits of Claim 4, the District Court screened that claim pursuant to 28

U.S.C. § 1915(e)(2) and held that this claim also failed to state a viable claim against

them. Finally, the District Court concluded that Dr. Harewomb should be dismissed from

the case without prejudice because he had not been served.



                                              3
       In light of the above, the District Court entered an order on March 4, 2016. That

order (a) granted the Commonwealth Defendants’ motion to dismiss Claims 1 through 3,

(b) dismissed the lone claim against Dr. Harewomb (Claim 2), (c) dismissed Claim 4

pursuant to § 1915(e)(2), and (d) gave Phillips until April 4, 2016, to file a third amended

complaint. Although Phillips moved the District Court to extend the time to file that new

pleading, he subsequently filed this appeal, challenging the March 4 order and indicating

his intent to stand on his second amended complaint.

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291 to review “final” decisions of the

district courts. “Generally, an order which dismisses a complaint without prejudice is

neither final nor appealable because the deficiency may be corrected by the plaintiff

without affecting the cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d

Cir. 1976) (per curiam). However, “if the plaintiff cannot amend or declares his intention

to stand on his complaint . . . the order become[s] final and appealable.” Id. at 951-52.

Because Phillips has declared his intention to stand on his second amended complaint, the

District Court’s March 4, 2016 order is final and appealable, 2 and is properly before us. 3


2
  Although the March 4 order did not specifically address the claims against the Doe
Defendants, that order is nevertheless final and appealable because those defendants were
never served. See Lacey v. Cessna Aircraft Co., 862 F.2d 38, 39 n.1 (3d Cir. 1988).
3
  In a civil action in which the United States is not a party, an appellant generally must
file his notice of appeal within 30 days of the entry of the order in question. See Fed. R.
App. P. 4(a)(1)(A). This requirement is “mandatory and jurisdictional.” Bowles v.
Russell, 551 U.S. 205, 209 (2007) (quoting Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 61 (1982) (per curiam)). Here, the 30-day period ended on Monday, April 4,
2016. Although Phillips’s notice of appeal was not docketed until April 18, 2016, this
appeal is timely because he has submitted a 28 U.S.C. § 1746 declaration stating that he
                                              4
We review that order under a plenary standard, see Allah v. Seiverling, 229 F.3d 220, 223

(3d Cir. 2000), and we may affirm aspects of it on any basis supported by the record, see

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

                                               III.

       For substantially the reasons provided by the District Court, we agree with its

conclusion (1) that the Eleventh Amendment bars Phillips’s claims to the extent that they

seek relief against the Commonwealth Defendants in their official capacities, and (2) that

it was not appropriate to dismiss his individual-capacity claims for lack of exhaustion.

We focus our discussion instead on the District Court’s determination that the individual-

capacity claims failed to state a claim under Rule 12(b)(6) and § 1915(e)(2)(B)(ii). In

reviewing that determination, we analyze these claims under the standard articulated in

Ashcroft v. Iqbal, 556 U.S. 662 (2009). 4 Under that standard, a pleading “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Although “[t]he plausibility standard is not akin to a ‘probability requirement,’” it does

require that the pleading show “more than a sheer possibility that a defendant has acted

unlawfully.” Id. In other words, the pleading must allege “enough facts to raise a

reasonable expectation that discovery will reveal evidence of the necessary element[s] [of


gave his notice of appeal to prison authorities for forwarding to the District Court before
the 30-day deadline expired. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266,
276 (1988).
4
 To the extent that Phillips asserts that Iqbal does not apply to pro se pleadings, he is
mistaken. See Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015).
                                                5
the claims].” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (first

alteration in original) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d

Cir. 2008)).

       Claim 1 in Phillips’s second amended complaint concerns the food that he

received at SCI-Chester and alleges as follows. Phillips is allergic to onions, peppers,

and soy-based products. Prior to his transfer to SCI-Chester, he was on a medically

prescribed meal regimen that excluded those items. It appears that SCI-Chester approved

this meal regimen shortly after his arrival. 5 Nevertheless, he received meals that

contained those items on a daily basis. Although he complained to numerous prison

officers/employees, including 11 of the Commonwealth Defendants, 6 he continued to

receive the wrong meals. Phillips was ultimately left with an unenviable choice: avoid

the offending foods (which left him with an insufficient amount of food) or eat them and

suffer allergic reactions. As a result of his situation, he lost approximately 50 pounds in




5
  This statement finds support in Exhibit 2 to Phillips’s original complaint. (See Dist. Ct.
docket # 1, at 16.) His second amended complaint appears to rely on this exhibit, and he
claims that he did not resubmit it (or other exhibits from his original complaint) because
he had been “denied a copying service.” (See Dist. Ct. docket # 12, at 5.) Under these
circumstances, Exhibit 2 may be considered in evaluating the Commonwealth
Defendants’ motion to dismiss. See In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997) (explaining that “a document integral to or explicitly relied
upon in the complaint may be considered without converting the motion [to dismiss] into
one for summary judgment”) (alteration in original) (emphasis and internal quotation
marks omitted).
6
  Those 11 Commonwealth Defendants are Superintendent Thomas, Major Aponte,
Captain Morris, Lieutenants Adams, Allen, Criseitello, and Thompson, Sergeant Spells,
Corrections Officers Colon and McClain, and Kitchen Supervisor Williams.

                                             6
six months and experienced allergic reactions in the form of large, painful sores on his

face and other parts of his body.

       The District Court properly treated Claim 1 as an Eighth Amendment claim. The

Eighth Amendment requires prison officials to “ensure that inmates receive adequate

food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).

To state a viable Eighth Amendment claim, an inmate must allege facts demonstrating

that (1) he was “incarcerated under conditions posing a substantial risk of serious harm,”

and (2) the acts or omission of the prison official(s) reflected deliberate indifference to

his health or safety. Id. at 834. Deliberate indifference is shown when the prison

official(s) knew of and disregarded an excessive risk to the inmate’s health or safety. See

id. at 837.

       The District Court assumed for the sake of argument that Phillips had alleged facts

satisfying the “substantial risk of serious harm” prong of the Eighth Amendment test, but

it concluded that his claim failed on the “deliberate indifference” prong because he had

not “allege[d] any facts giving rise to an inference that any of the defendants participated

in or in any way acquiesced in the provision of non-compliant foods to [him].” (Dist. Ct.

Mem. 17.) We disagree with this conclusion. Phillips’s allegations indicate that (1) 11

Commonwealth Defendants (and, it seems, the John Doe “Head Kitchen Supervisor” in

this case) were aware of the problems with his meal plan, (2) the meal plan caused him to

suffer negative health effects that were significant and would be obvious to even the




                                              7
casual observer, 7 and (3) nothing was done by these defendants to remedy the problems

with his meal plan. Contrary to the District Court’s conclusion, we conclude that these

allegations, taken together, allow one to infer that these defendants “acquiesced in the

provision of non-compliant foods” to Phillips.

       To be sure, it is unclear from Phillips’s pleading exactly when he told each of

these defendants about his meal problems, how many times they each were told, what

exactly they were told, and how he looked when he told them (i.e., was he suffering from

the extreme weight loss and large sores on his face at the time). But we believe that these

issues are best addressed at the summary judgment stage. See Connelly, 809 F.3d at 789

(explaining that, to survive dismissal under Rule 12(b)(6), a pleading need only allege

“enough facts to raise a reasonable expectation that discovery will reveal evidence of the

[claim’s] necessary element[s]”) (second alteration in original) (quoting Phillips, 515

F.3d at 234). Because we are satisfied that Claim 1 alleges sufficient facts to meet both

prongs of the Eighth Amendment test, 8 we will vacate the District Court’s dismissal of




7
  As the Supreme Court explained in Farmer, “a factfinder may conclude that a prison
official knew of a substantial risk [of serious harm] from the very fact that the risk was
obvious.” 511 U.S. at 842.
8
  As noted above, the District Court merely assumed that Phillips had alleged facts
satisfying the first prong of the Eighth Amendment test. However, we conclude that he
indeed alleged facts that would meet that prong. His continued receipt of food to which
he was allergic, which allegedly caused him to lose 50 pounds and develop large, painful
sores, seemingly posed a substantial risk of serious harm. Cf. Antonelli v. Sheahan, 81
F.3d 1422, 1432 (7th Cir. 1996) (holding that prisoner’s allegation that he received a
“nutritionally deficient” diet was sufficient to state an Eighth Amendment claim).
                                             8
Claim 1 to the extent that it was brought against the John Doe Head Kitchen Supervisor

and the 11 Commonwealth Defendants identified in Footnote 6 of this opinion. 9

       In Claim 2, Phillips alleges that, on at least three occasions, Dr. Harewomb

refused his (Phillips’s) requests for medical care for the large, painful sores that

developed on his body. Claim 2 also appears to allege that Superintendent Thomas was

liable because he was (or at least may have been) aware of unspecified “deficiencies” in

the prison’s medical department (including those caused by Dr. Harewomb). The District

Court, acting sua sponte, dismissed the part of Claim 2 against Dr. Harewomb because he

had not been served. The District Court then granted the Commonwealth Defendants’

motion to dismiss the remainder of Claim 2, concluding that Phillips had not made out a

viable claim against Superintendent Thomas or any of the other Commonwealth

Defendants.

       We find no error in the District Court’s dismissal of Claim 2 against the

Commonwealth Defendants. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988) (“Allegations of participation or actual knowledge and acquiescence . . . must be

made with appropriate particularity.”). However, we will vacate its dismissal of Claim 2

against Dr. Harewomb. Federal Rule of Civil Procedure 4(m) provides that, if a




9
  We do not disturb the District Court’s dismissal of Claim 1 as to the other defendants.
Claim 1 does not allege any facts implicating the other John Doe defendants or Mailroom
Supervisor Morales. As for Corrections Officer Coons, Phillips appears to allege only
that, upon his arrival at SCI-Chester, Coons took his old “diet card” and told him that he
would be receiving a new one. These alleged facts fail to demonstrate deliberate
indifference and thus are insufficient to state a viable Eighth Amendment claim.
                                              9
defendant is not served with a pleading within 90 days after it is filed, 10 “the court—on

motion or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a specified time.”

Fed. R. Civ. P. 4(m) (emphasis added). Here, the District Court, acting sua sponte,

dismissed Claim 2 against Dr. Harewomb for lack of service, but it did not notify Phillips

before doing so. Accordingly, we will remand this portion of Claim 2 so that Phillips has

an opportunity to demonstrate good cause for his failure to timely serve Dr. Harewomb.

See id. (providing that the district court must extend the time for service if the plaintiff

makes that good cause showing). Even if Phillips is unable to demonstrate good cause,

the District Court has the discretion to extend the time for service. See id.; McCurdy v.

Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998). If the District Court

ultimately exercises that discretion here, it may wish to direct the Commonwealth

Defendants to provide the last known address that SCI-Chester has on file for Dr.

Harewomb.

       In Claim 3, Phillips alleges that several pieces of his legal mail were tampered

with and/or opened outside of his presence. The District Court treated this claim as

alleging retaliation in violation of the First Amendment, 11 and concluded that it failed

under Rule 12(b)(6) because Phillips “does not specifically name any defendants in

10
   When Phillips filed his second amended complaint, Rule 4(m) provided for a service
period of 120 days, not 90 days. See, e.g., Whidbee v. Pierce County, 857 F.3d 1019,
1023 n.3 (9th Cir. 2017) (noting that Rule 4(m) was amended effective December 1,
2015). The length of the service period does not affect the outcome here.
11
   We find no error in the District Court’s decision to forgo treating Claim 3 as a First
Amendment access-to-courts claim, for Phillips himself made clear that he was not
pursuing that legal theory.
                                              10
conjunction with [t]his claim.” (Dist. Ct. Mem. 20.) Although the alleged facts in

support of Claim 3 are indeed sparse, they do specifically implicate one of the

Commonwealth Defendants: Mailroom Supervisor Morales. 12 Construing Phillips’s

pleading liberally, he appears to allege that Morales tampered with and/or opened his

legal mail outside of his presence on multiple occasions. (See Dist. Ct. docket # 12, at

13-14, 18.) While those allegations do not sufficiently set forth a retaliation claim, 13 they

do make out a viable First Amendment freedom of speech claim. See Jones v. Brown,

461 F.3d 353, 359 (3d Cir. 2006) (“A state pattern and practice . . . of opening legal mail

outside the presence of the addressee inmate interferes with protected communications,

strips those protected communications of their confidentiality, and accordingly impinges

upon the inmate’s right to freedom of speech.”); see also id. (explaining that, when an

inmate alleges that prison officials opened his legal mail outside of his presence, he need

not allege “any consequential injury stemming from that violation, aside from the

violation itself”). Accordingly, we will vacate the District Court’s dismissal of Claim 3

to the extent that it alleges a First Amendment freedom of speech claim against Morales.

We do not disturb the District Court’s dismissal of the balance of Claim 3.

12
   To the extent that Claim 3 also attempts to assert a cause of action against
Superintendent Thomas, we conclude that Phillips has not alleged sufficient facts to make
out a viable claim. See Rode, 845 F.2d at 1207.
13
   At the very least, Phillips has not alleged facts indicating a causal link between his
engaging in a constitutionally protected activity and the alleged tampering/opening of his
legal mail. Indeed, to the extent that he contends that his mail problems amounted to
retaliation for his filing this lawsuit, he has not alleged facts indicating that there was
(1) “an unusually suggestive temporal proximity” between his filing this lawsuit and the
alleged mail problems, or (2) “a pattern of antagonism coupled with timing that suggests
a causal link.” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).

                                             11
       Lastly, we consider Claim 4, which the District Court dismissed pursuant to

§ 1915(e)(2). 14 In this claim, Phillips alleges that, while housed in SCI-Chester’s

restricted housing unit, he was attacked and beaten by six “John Doe CERT Team

Members” despite his complying with orders to turn around and place his hands behind

his back so that he could be handcuffed (he also alleged that a “John Doe Lieutenant”

oversaw this attack). 15 Once the District Court dismissed all of the claims against the

named defendants, this claim against the Doe Defendants could not proceed. See Hindes

v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998) (explaining that “an action cannot be

maintained solely against Doe defendants”). However, given that (a) we will be vacating

the dismissal of Claims 1 through 3 as to certain named defendants, and (b) Claim 4

alleges sufficient facts to support an excessive force claim against these seven John Doe

defendants, see Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) (articulating

standard for Eighth Amendment excessive force claim); see also Alston v. Parker, 363


14
   Phillips argues that the District Court should not have screened Claim 4 under
§ 1915(e)(2) because the Commonwealth Defendants had already been served. This
argument is meritless. See 28 U.S.C. § 1915(e)(2)(B)(ii) (providing that a district court
“shall” dismiss a cause of action pursuant to this section “at any time” if it fails to state a
claim upon which relief may be granted).
15
   To the extent that Claim 4 also intended to raise allegations against Superintendent
Thomas, those allegations are insufficient to survive dismissal under § 1915(e)(2)(B)(ii).
See Rode, 845 F.2d at 1207. To the extent that Claim 4 intended to raise allegations
against any of the other named defendants, those subclaims have been waived on appeal.
See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375,
398 (3d Cir. 1994) (“An issue is waived unless a party raises it in [his] opening brief, and
for those purposes a passing reference to an issue will not suffice to bring that issue
before this court.”) (internal quotation marks omitted); see also Emerson v. Thiel Coll.,
296 F.3d 184, 190 n.5 (3d Cir. 2002) (per curiam) (applying waiver doctrine to pro se
appeal). Accordingly, we do not disturb the District Court’s dismissal of Claim 4 to the
extent that it was brought against the named defendants.
                                              12
F.3d 229, 233 n.6 (3d Cir. 2004) (noting that our cases “permit the naming of fictitious

defendants as stand-ins until the identities can be learned through discovery”), we will

vacate the dismissal of Claim 4, too.

                                            IV.

       In sum, we will vacate the District Court’s dismissal of Claim 1 (to the extent that

it was brought against the John Doe Head Kitchen Supervisor and the 11 Commonwealth

Defendants identified in Footnote 6 of this opinion), Claim 2 (to the extent that it was

brought against Dr. Harewomb), Claim 3 (to the extent that it alleges a First Amendment

free speech claim against Mailroom Supervisor Morales), and Claim 4 (to the extent that

it was brought against the six John Doe CERT Team Members and the John Doe

Lieutenant), and we will remand those claims for further proceedings. We will affirm the

District Court’s dismissal of the remainder of Phillips’s second amended complaint.




                                             13
