Bob Brightwell v. Joseph Lehman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3917
___________
BOB BRIGHTWELL,
Appellant
v.
JOSEPH LEHMAN, in his official capacity as
the Commissioner of Pennsylvania Department
of Corrections; RAYMOND SOBINA, in his official
capacity as the Superintendent of the State
Correctional Institution at Somerset;
SYLVIA GIBSON, in her official capacity as Deputy
Superintendent for Centralized Services of the
State Correctional Institution at Somerset;
GERALD ROZUM, in his official capacity as Acting
Deputy Superintendent for Facilities Management
of the State Correctional Institution at Somerset;
DANIEL GEHLMANN, in his official capacity as Major
of Unit Management of the State Correctional
Institution at Somerset; LEO GLASS, in his
official capacity as Captain of Inmate Receiving
Committee (I.R.C.) of the State Correctional
Institution at Somerset; JEFFREY BEARD, Ph.D.,
in his official capacity as the Secretary of the

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Pennsylvania Department of Corrections;
EDWARD KLEM, in his official capacity as
Superintendent of the State Correctional
Institution as Mahonoy; KENNETH G. CHMIELEWSKI,
in his individual and official capacity as the
Deputy Superintendent for Centralized Services
at the State Correctional Institution at Mahanoy;
MARVA CERULLO, in her individual and official
capacity as the Corrections Health Care
Administrator at the State Correctional
Institution at Mahanoy; JOSEPH RUSH, in his
individual and official capacity as a Physician's
Assistant of the State Correctional Institution
at Mahanoy; DR. FRED MAUE, in his individual and
official capacity as Chief of Clinical Services,
Bureau of Health Care Services, for the
Pennsylvania Department of Corrections
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 03-cv-00205J)
District Judge: Honorable Kim R. Gibson
_____________
Argued October 19, 2010
Before: HARDIMAN, GREENAWAY, JR.
and NYGAARD, Circuit Judges.
(Filed: February 9, 2011)
Michael Nonaka [Argued]
Skye L. Perryman

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Covington & Burling
Room 743C
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004-0000
Attorneys for Appellant
Kemal A. Mericli [Argued]
Office of Attorney General of Pennsylvania
6th Floor
564 Forbes Avenue
Manor Complex
Pittsburgh, PA 15219-0000
Claudia M. Tesoro
Office of Attorney General of Pennsylvania
21 South 12th Street
Philadelphia, PA 19107-0000
Attorneys for Appellees Lehman, Sobina, Gibson,
Rozum, Gehlmann, Glass, Beard, Klem, Chmielewski,
Cerullo and Maue
Kathryn M. Kenyon [Argued]
Pietragallo, Gordon, Alfano, Bosick & Raspanti
301 Grant Street
One Oxford Centre, 38th Floor
Pittsburgh, PA 15219-0000
Attorney for Appellee Rush
______________
OPINION OF THE COURT
_______________
HARDIMAN, Circuit Judge.

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In this appeal we consider whether a prisoner who has
been denied in forma pauperis status because he has “three
strikes” under 28 U.S.C. § 1915(g) is precluded from
obtaining counsel pursuant to § 1915(e)(1). We hold that he
is.
I
A
Bob Brightwell was sentenced to life in prison for a
robbery and murder he committed in 1975. Since 1977,
Brightwell has been housed in various Pennsylvania State
Correctional Institutions (SCIs), including SCI-Somerset
from May 2003 through January 2004, SCI-Mahanoy from
May 2004 through November 2006, and SCI-Houtzdale,
where he currently resides.
Brightwell claims to suffer from serious medical
conditions and has long maintained that prison officials have
been deliberately indifferent to his medical needs. His
allegedly unattended-to conditions include: diabetes, a skin
condition called keratosis pilaris, extreme liver and kidney
pain, blurred vision, and severe “imploding-type” migraines
caused by “a capsule” mistakenly left in his right eye during a
botched cataract surgery in 1999.1
1 Brightwell contends that on October 21, 1999, while
undergoing routine cataract surgery, his anesthesia wore off
and he awoke in excruciating pain, which caused him to
thrash about. He claims that in their haste to finish the
surgery, doctors administered no additional anesthesia, placed
him in restraints to stop his movement, and then accidentally
left “a capsule” inside his right eye. It is not clear from the
According to Brightwell,

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these conditions required the following accommodations: a
diabetic diet, Keri brand skin lotion, a sufficiently warm
temperature in his prison cell, and remedial eye surgery. In
the months before he filed an amended complaint in this case,
Brightwell sought the aforementioned accommodations
through sick call requests, grievances, and letters to
Department of Corrections (DOC) officials. All of these
entreaties were denied based on the DOC’s determination that
Brightwell’s conditions of confinement and medical care
were adequate.
Brightwell also claims that on May 7, 2004, he
suffered from diabetic shock and that a physician’s assistant
who was in the room at the time failed to assist him. The next
day, Brightwell filed a grievance alleging “unethical conduct
by a member of [the staff].” Three weeks later, a prison
administrator signed a misconduct report charging Brightwell
with lying about the incident. The misconduct charge was
later dismissed without any sanction against Brightwell.
B
On September 16, 2004, Brightwell filed an amended
complaint against a number of prison officials and employees
record whether “capsule” refers to a foreign object or to the
“capsule of the lens,” which is a natural part of the human
eye. See H ENRY G RAY , F.R.S., G RAY ’ S A NATOMY 821 (T.
Pickering Pick, F.R.C.S. & Robert Howden, M.A., M.B.,
C.M., eds., 15th ed. 1995) (“The capsule of the lens is a
transparent, highly elastic, and brittle membrane, which
closely surrounds the lens.” (italics in original)).

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alleging: (1) breach of contract, (2) a due process violation
relating to his prior placement in administrative custody, (3)
violations of the International Covenant on Civil and Political
Rights and the Convention Against Torture, (4) a violation of
his First Amendment rights in the form of a retaliatory
misconduct report levied against him for filing a grievance
following the May 2004 diabetic shock incident, and (5)
violations of 42 U.S.C. § 1983 and the Eighth Amendment for
deliberate indifference to his serious medical needs.2
2 Brightwell’s initial complaint was filed on September
11, 2003, and alleged that he was wrongfully held in
administrative custody. That issue became moot in May 2004
when Brightwell was moved into the general population at
SCI-Mahanoy. Brightwell’s amended complaint named as
defendants, in their individual and official capacities: DOC
Commissioner Joseph Lehman, DOC Secretary Jeffrey Beard,
Superintendent of SCI-Somerset Raymond Sobina, Deputy
Superintendent for Centralized Services of SCI-Somerset
Sylvia Gibson, Acting Deputy Superintendent for Facilities
Management of SCI-Somerset Gerald Rozum, Major of Unit
Management of SCI-Somerset Daniel Gehlmann, Captain of
the Inmate Receiving Committee of SCI-Somerset Leo Glass,
Superintendent of SCI-Mahanoy Edward Klem, Deputy
Superintendent for Centralized Services of SCI-Mahanoy
Kenneth Chmielewski, Corrections Health Care
Administrator at SCI-Mahanoy Marva Cerullo, DOC Chief of
Clinical Services at the Bureau of Health Care Services Dr.
Fred Maue, and Physician’s Assistant of SCI-Mahanoy
Joseph Rush.
He
sought compensatory and punitive damages and an order
compelling Defendants to remedy the defects in his medical

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care. In April 2006, the District Court granted in part
Defendants’ motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), allowing only Brightwell’s Eighth
Amendment deliberate indifference and First Amendment
retaliation claims to move forward.3
3 One of Brightwell’s Eighth Amendment claims—that
Defendants were deliberately indifferent to his need for Keri
skin lotion to treat his keratosis pilaris—was also dismissed.
While his case was pending, Brightwell filed a motion
for leave to proceed in forma pauperis under 28 U.S.C. §
1915 and three motions for the appointment of counsel under
§ 1915(e)(1). On March 23, 2004, Magistrate Judge Ila
Jeanne Sensenich entered orders denying Brightwell’s motion
for leave to proceed in forma pauperis and his first motion for
the appointment of counsel. The latter order was a
handwritten notation at the top of the motion which stated:
“Motion denied for reasons given in report and
recommendation dated 10/30/2003.”
The October 30, 2003 Report and Recommendation to
which Magistrate Judge Sensenich made reference explained
that Brightwell was ineligible for in forma pauperis status
because his history of filing frivolous suits triggered the
“three strikes” provision of the Prison Litigation Reform Act
(PLRA), 28 U.S.C. § 1915(g). Magistrate Judge Sensenich’s
docket review indicated that as of October 2003, Brightwell
had filed seventeen actions in Pennsylvania district courts.
She aptly described him as “a litigious prisoner” whose
motion to proceed in forma pauperis had to be denied under
the PLRA.

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On May 3, 2006, Brightwell filed another motion
requesting counsel. This motion was denied by Magistrate
Judge Lisa Pupo Lenihan, who emphasized two
considerations: (1) the scarcity of pro bono counsel and (2)
her willingness to revisit the issue if the case proceeded to
trial. Brightwell appealed the decision to deny him counsel,
but United States District Judge Kim R. Gibson affirmed
Magistrate Judge Lenihan’s order. On October 26, 2006,
Brightwell again moved for the appointment of counsel, and
Magistrate Judge Lenihan denied the motion for the same
reasons articulated in her previous denial.
On November 30, 2006, Defendants filed a motion for
summary judgment. Magistrate Judge Lenihan issued a
Report and Recommendation finding in Defendants’ favor,
and on August 29, 2007, Judge Gibson adopted the Report
and Recommendation, granting summary judgment.
Brightwell filed this timely appeal.4
Brightwell presents three claims of error for our
consideration. First, he contends the District Court erred in
denying his motions for appointment of counsel pursuant to
28 U.S.C. § 1915(e)(1). Second, he argues that the District
Court should not have ruled on the motions for summary
judgment because he was given inadequate notice and
opportunity to reply. Finally, he maintains that disputed
II
4 The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343 because Brightwell’s amended complaint
raised federal questions and alleged civil rights violations.
We review the final order of the District Court pursuant to 28
U.S.C. § 1291.

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issues of material fact precluded summary judgment. We
address each of these arguments in turn.
A
Ordinarily, we review the District Court’s denial of an
inmate’s request for appointment of counsel for abuse of
discretion. Tabron v. Grace, 6 F.3d 147, 155 n.3, 158 (3d
Cir. 1993). In this case, however, whether Brightwell’s
“three strikes” statutorily preclude him from obtaining
counsel pursuant to § 1915(e)(1) is a purely legal question, so
our review is plenary. See United States v. Hull, 456 F.3d
133, 137 (3d Cir. 2006). We may affirm a district court for
any reason supported by the record. United States v. Agnew,
407 F.3d 193, 196 (3d Cir. 2005) (citing United States v.
Jasin, 280 F.3d 355, 362 (3d Cir.), cert. denied 537 U.S. 947
(2002)).
Brightwell requested counsel pursuant to 28 U.S.C. §
1915 (“Proceeding In Forma Pauperis”), which not only
enables indigent litigants to bring lawsuits without paying
filing fees, but also allows for representation by pro bono
counsel “requested” by the court.5
5 The Supreme Court held in Mallard v. United States
Dist. Court for the S. Dist. of Iowa that § 1915(d)—now
recodified at § 1915(e)(1)—“allow[s] courts to ask but not
compel lawyers to represent indigent litigants.” 490 U.S.
296, 307 (1989). As the Court noted, such requests “are . . .
not to be ignored” and “confront a lawyer with an important
ethical decision.” Id. at 308. Because most attorneys likely
treat such “requests” as de facto appointments and because
we are more familiar with the notion of court-“appointed”
than court-“requested” counsel, we refer throughout this
Section 1915(e)(1)

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authorizes district courts to “request an attorney to represent
any person unable to afford counsel” and, as we stated in
Tabron, “gives district courts broad discretion to request an
attorney to represent an indigent civil litigant[,] [even though]
[s]uch litigants have no statutory right to appointed counsel.”
6 F.3d at 153, 156–58 (listing factors to consider when
deciding whether to appoint counsel).
In this case, Magistrate Judge Sensenich denied
Brightwell’s motion for leave to proceed in forma pauperis
pursuant to the “three strikes” rule of § 1915(g), which states:
In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or
proceeding under this section if the prisoner
has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought
an action or appeal in a court of the United
States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the
prisoner is under imminent danger of serious
physical injury.
§ 1915(g). The plain text of subsection (g) indicates that, in
the absence of imminent danger of serious physical injury, a
litigant with a history of filing frivolous, malicious, or
patently unmeritorious claims cannot “bring a civil action . . .
under this section,” which refers to § 1915. See Koons Buick
Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60–61 (2004)
opinion to attorneys obtained under § 1915 as “appointed.”
The distinction is immaterial to our decision.

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(explaining how legislation is divided with each “section”
containing subsections, paragraphs, subparagraphs, and
clauses). Because Brightwell was barred from proceeding
under § 1915, he was not entitled to any of the benefits that
accrue to one who proceeds in forma pauperis. Accordingly,
we hold that Brightwell was statutorily precluded from
obtaining counsel pursuant to § 1915(e)(1).
Our holding comports with the “principal purpose” of
the Prison Litigation Reform Act (PLRA), which was to
“‘deter[] frivolous prisoner litigation by instituting economic
costs for prisoners wishing to file civil claims.’” Hernandez
v. Kalinowski, 146 F.3d 196, 200 (3d Cir. 1998) (quoting
Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997)); see also
Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001)
(“In enacting the PLRA, Congress concluded that the large
number of meritless prisoner claims was caused by the fact
that prisoners easily obtained I.F.P. status and hence were not
subject to the same economic disincentives to filing meritless
cases that face other civil litigants.” (citations omitted)).
Allowing a litigant who was denied in forma pauperis status
pursuant to § 1915(g) to obtain counsel under § 1915(e)(1)
would thus contradict both the text of § 1915 and the
principal purpose of the PLRA.
In light of Brightwell’s ineligibility for the
appointment of counsel under § 1915, it was unnecessary for
the District Court to analyze the Tabron factors.
Nevertheless, it did not abuse its discretion by denying
Brightwell’s motions for the appointment of counsel.6
6 We note, as we did in Abdul-Akbar, 239 F.3d 307,
that the “three strikes” rule does not bar access to the courts

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B
Having decided that Brightwell was precluded from
obtaining counsel as an in forma pauperis litigant, we turn to
his claims that the District Court committed procedural and
substantive errors when it entered summary judgment against
him.
1
We begin by considering whether Brightwell received
adequate notice and an opportunity to respond to Appellees’
motions for summary judgment. Because Brightwell raised
this issue in his first challenge to summary judgment, we
review de novo the District Court’s implicit finding that
procedural requirements were met. See Love v. Nat’l Med.
Enters., 230 F.3d 765, 771 (5th Cir. 2000) (noting that the
standard of review is plain error only when the challenging
party fails to raise the procedural argument in an earlier Rule
59(e) motion for reconsideration).
Although “[a] district court may not enter summary
judgment against a party without affording that party notice
and an opportunity to respond,” Trabal v. Wells Fargo
or counsel. Prisoner litigants are free to seek counsel—
whether pro bono or compensated—on their own. Moreover,
although a district court may “have inherent authority to order
attorneys to represent litigants without pay,” Mallard v.
United States Dist. Court for the S. Dist. of Iowa, 490 U.S.
296, 308 n.8 (1989), such a power, if it exists, is not
statutorily derived.

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Armored Serv. Co., 269 F.3d 243, 249 n.3 (3d Cir. 2001), a
court can cure defective service by exercising its “discretion
to extend any applicable response period pertaining to the
served paper,” Russell v. City of Milwaukee, 338 F.3d 662,
667 (7th Cir. 2003) (quoting 1 J AMES WM. MOORE ET AL.,
M OORE ’S FEDERAL PRACTICE § 5.04[2][a][ii] at 5-29 to 5-30
(3d ed.)).
Even accepting as true Brightwell’s claim that mail
delivery was unreliable around the time of his transfer from
SCI-Mahanoy to SCI-Houtzdale, the District Court
nevertheless gave him a full and fair opportunity to respond
when it granted two extensions of time to file responsive
pleadings and ordered that all summary judgment-related
filings be resent to SCI-Houtzdale. Because Brightwell does
not claim that he failed to receive the District Court’s
shipment of documents, he was not deprived of a full and fair
opportunity to respond to the summary judgment motions.
Accordingly, the District Court committed no procedural
error.
2
We turn next to the merits of the District Court’s
summary judgment. Because Brightwell failed to object to
the Report and Recommendation—which explicitly stated
that failure to object “may constitute a waiver of any
appellate rights”—we review the District Court’s grant of
summary judgment for plain error.7
7 “Although we recognize[] that the majority of circuit
courts of appeals hold otherwise, we [have] ruled that a party
who failed to object to a magistrate’s report on an issue
referred under [the Federal Magistrates Act, 28 U.S.C. §
Nara v. Frank, 488 F.3d

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187, 194 (3d Cir. 2007). We apply the same standard as the
District Court in determining the appropriateness of summary
judgment. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d
Cir. 2010).
According to the Federal Rules of Civil Procedure in
effect in 2007, summary judgment is appropriate when,
assuming the truth of the nonmovant’s allegations, “the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact.” F ED . R. C IV . P. 56(c)(2) (amended effective
Dec. 1, 2010). A factual dispute is “genuine” and thus
warrants trial “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248–49, 252 (1986). “[A]
complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts
immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986).
As to his claim of “cruel and unusual punishment,”
Brightwell failed to present any evidence that Appellees
636(b)(1)(B)] has not waived its right to object in this court to
the legal conclusions contained therein.” United Steelworkers
of America v. N.J. Zinc Co., Inc., 828 F2d 1001, 1006 (3d Cir.
1987). Despite the absence of waiver, plain error review is so
disadvantageous to the losing party that magistrate judges
would be well advised to caution litigants that they “must
seek review by the district court by filing [objections] within
[14] days of the date of the [Report and Recommendation]
with the Clerk of the district court and that failure to do so
will waive the right to appeal.” Siers v. Morrash, 700 F.2d
113, 116 (3d Cir. 1983) (emphasis added).

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denied him medical care or “acted ‘with deliberate
indifference to his . . . serious medical needs.’” Montgomery
v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (quoting Estelle
v. Gamble, 429 U.S. 97, 104 (1976)). Given the record, no
jury could find that Brightwell’s diet or cell temperature were
“serious medical needs” or that he had anything lodged in his
right eye.8
Brightwell’s First Amendment claim fares no better.
To establish a claim for retaliation contrary to the First
Amendment, a plaintiff must show: (1) he engaged in
constitutionally protected conduct, (2) he was subjected to
adverse actions by a state actor, and (3) the protected activity
Moreover, Brightwell failed to support his
allegations that Appellees were indifferent to his medical
needs. In fact, aside from Brightwell’s own vague assertions
and self-diagnoses, all of the record evidence—including
DOC records and supporting affidavits from prison
officials—indicate that he received appropriate
accommodations and regular medical screenings, including
one by an optometrist who recommended bifocal lenses,
which Brightwell refused to wear. Brightwell’s Eighth
Amendment claims are thus based entirely on
“[s]peculation[,] . . . conclusory [and] . . . ambiguous
allegations[,] and vague inferences.” Ridgewood Bd. of Educ.
v. N.E. ex rel. M.E., 172 F.3d 238, 252, 254 (3d Cir. 1999)
(citation omitted).
8 Brightwell is correct that expert testimony is not
necessarily required to establish the existence of a serious
medical need. Other forms of extrinsic proof—e.g., medical
records, photographs, etc.—may suffice in some cases. We
merely find that the record in this case is devoid of any such
evidence.

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was a substantial motivating factor in the state actor’s
decision to take the adverse action. See Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see
also Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997).
We agree with Appellees that the alleged retaliation in this
case—a “misconduct” charging Brightwell with filing a false
report that was dismissed—does not rise to the level of
“adverse action” because it would not be “sufficient ‘to deter
a person of ordinary firmness’ from exercising his First
Amendment rights.” Allah v. Seiverling, 229 F.3d 220, 225
(3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228,
235 (3d Cir. 2000)); cf. Bridges v. Gilbert, 557 F.3d 541, 555
(7th Cir. 2009) (“A single retaliatory disciplinary charge that
is later dismissed is insufficient to serve as the basis of a §
1983 action.” (citation omitted)).
In sum, Brightwell failed to proffer sufficient evidence
to allow a reasonable jury to find the essential elements of
any of his claims. Accordingly, the District Court committed
no error, much less plain error, when it entered summary
judgment against him.
III
Because the District Court did not err when it denied
Brightwell’s request for counsel or when it entered summary
judgment against him, we will affirm the judgment of the
District Court.

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