Opinion
1:23-CV-21-SPB-RAL
05-14-2024
LEEVERNE JAMES, Plaintiff v. LONNIE OLIVER, et al., Defendants
SUSAN PARADISE BAXTER United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
ECF NO. 33.
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Motion to Dismiss filed by Defendants Carolyn Cheek, Jennifer Deplatchett, Vicki Hammet, Lonnie Oliver, Kurt Suesser, Patricia Thompson, and Jason Zillman [ECF No. 33] be granted in part and denied in part.
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
II. Report
A. Procedural background
Plaintiff Leeverne James, an inmate formerly confined at the State Correctional Institution at Albion (SCI-Albion), initiated this pro se civil rights action on February 2, 2023. See ECF No. 1. In response to Defendants' first motion to dismiss, see ECF No. 22, James filed an Amended Complaint - the currently operative pleading - on September 6, 2023. ECF No. 32. James alleges that the Defendants violated his First and Fourteenth Amendment rights and seeks monetary relief for these violations pursuant to 42 U.S.C. § 1983. Id.
B. Factual Background
For purposes of this motion, the following factual allegations are accepted as true. On July 29, 2016, while incarcerated at SCI-Albion, James filed a federal civil rights lawsuit against Correct Care Solutions, a private corporation contracted to provide medical services to inmates at SCI-Albion, and several healthcare administrators and professionals at SCI-Albion based on their failure to treat a knee injury that he sustained while playing basketball. ECF No. 32 ¶ 13. See James v. Correct Care Solutions, No. 1:16-CV-195 (W.D. Pa. 2016). In that prior action, James asserted that Correct Care and the healthcare professionals acted with deliberate indifference to his medical needs in violation of his Eighth Amendment rights. The individual Defendants included Andrea Norris, the Director of the Bureau of Health Care Services for the Department of Corrections (DOC), Christine Zirkle, the Corrections Health Care Administrator, and four medical professionals: Dr. Maxa, PA Stroup, Nurse Edwards, and a John Doe orthopedic surgeon. Id. That lawsuit concluded with a settlement. Id. at ECF No. 60.
Several years later, while incarcerated on Unit C/A at SCI-Albion, James submitted an Inmate Request Slip to his counselor requesting that his custody level be reduced from Level 3 to Level 2 so that he would be eligible for a move to Unit A/A, the “Honor Unit.” ECF No. 32 ¶¶ 14-16. Level 2 housing units, such as the A/A Honor Unit, are incentive based units that offer different rules and greater privileges for qualifying inmates. Id. ¶¶ 17-18. The counselor responded: “I will do a vote sheet. You qualify.” Id. ¶ 15.
On July 15, 2021, James was moved to the A/A Honor Unit. Id. ¶ 17. Upon arrival, Defendant Hammet stated, “James, I don't know how you got over here you like filing lawsuits, we don't allow guys over here like that.” Id. ¶ 21. Although James had been employed as a block worker in his prior unit, Hammet told him that “Block jobs don't follow you from one unit to another and right now we already have enough workers.” Id. ¶ 22. James was then removed from his job as a block worker and placed in the General Labor Pool (GLP). Id. ¶ 23.
On August 24, 2021, Hammet told James to pack up for a move to Unit B/B, a Level 3 housing unit. Id. ¶¶ 24-25. When James questioned the unit transfer, the B/B unit manager, Defendant Deplatchett, told him that he had been moved because he did not have a job. Id. ¶ 26. James maintains that he was never informed by anyone on A/A Unit “of any criteria which states that he must maintain employment because he simply changed units.” Id. ¶ 27. James also alleges that many other inmates on A/A “who were also not employed were then provided the opportunity of employment in order to remain on A/A housing unit.” Id. ¶¶ 29, 36-44. Although James filed requests with Defendants Thompson and Oliver seeking additional information “regarding this policy or rule that the Institution has,” neither individual provided a satisfactory response. Id. ¶¶ 31-33.
In October 2021, James spoke with Deplatchett “about being moved back to A/A if and when he gained employment.” Id. ¶ 45. Deplatchett indicated that she would move him back to A/A once he obtained a job. Id. Although James began working in the Dietary Department on October 16, 2021, he was informed by his counselor shortly thereafter that his vote sheet for an Incentive Based Transfer (IBT) had been denied. Id. ¶¶ 26-47. When he asked Deplatchett why his request had been denied, she stated, “You continue to leave a bad taste in everybody's mouth. You like filing grievances and lawsuits.” Id. ¶ 48.
Around that same time, James contacted Oliver to request an explanation for the denial of his transfer. Id. ¶ 94. Oliver responded: “It's your behavior that has gotten you to this point. Your questions were asked at the Central Office level and was told that you don't qualify at this point.” Id. ¶ 95. Oliver later stated that James needed 10 years of being misconduct free in state confinement to qualify for the transfer. Id. ¶ 98. When James informed Oliver and Thompson that he intended to file a grievance, Oliver stated, “Make sure you file another lawsuit too.” Id. ¶ 99.
On November 3, 2021, James responded by filing Grievance 954050, arguing that he had been improperly moved from the Honor Unit and wrongly denied a transfer back to that unit. Defendant Suesser denied the grievance, stating that “the local criteria for admittance to either A/A or D/B is ‘inmate must be employed with average work performance evaluations.'” ECF No. 32-1 at 15. Suesser also noted that James' transfer had been denied due to lack of institutional support. Id. On appeal, James argued that he had been employed as a block worker on Unit C/A but had been removed from that job upon his transfer and had not been given an opportunity to obtain alternate employment. Id. at 19. He also objected to the fact that the criteria for eligibility for the Honor Unit were not posted anywhere in his unit. Id. Defendant Oliver denied his appeal but, after noting that James had obtained employment in the Dietary Department, recommended that James write a request to his unit manager, Cheek, requesting a move back to the Honor Unit. ECF No. 32 ¶ 54. Following this recommendation, James sent a request to Cheek on January 24, 2022, asking to be moved back to Unit A/A now that he was employed in the Dietary Department. Id. ¶ 55. Cheek responded that she would add his name to the waiting list. Id. ¶ 56.
On April 1, 2022, James spoke with Cheek and asked when he would be moved back to Unit A/A. Id. ¶ 67. Cheek responded that she had taken his name off the list for some reason but could not remember why. Id. On April 15, 2022, she indicated that she would check her notes and get back to him. Id. James spoke with her again and was informed: “I don't know what you did but you must've did something to Thompson. I was going to bring you back but I was told not to because you filed a grievance about it already.” Id. ¶ 70. When James followed up with Thompson, he was told: “You need to work on your behavior. This was already explained to you once before and we're not going to reward that sort of behavior here. Any other questions you may have you need to take that up with your Unit Team or file another grievance.” Id. ¶ 72. Because James had not had a misconduct in over six years, he perceived Thompson's reference to his “behavior” as “referring to the actions of Plaintiff filing a lawsuit and grievance.” Id. ¶ 73.
Throughout June and July of 2022, James continued to contact various officials concerning his transfer request. Deplatchett and Zillman each informed him that he was not eligible for an IBT because he “must calculate to a level 2 and [he did] not.” Id. ¶¶ 110-112. James requested “that a vote sheet be submitted in order to receive an incentive based transfer,” but Oliver “did not respond . . . in a timely manner.” Id. ¶ 113. On July 27, 2022, James filed another grievance, Grievance # 991269, alleging that he was being denied a transfer in retaliation for “the filing of a lawsuit.” Id. ¶ 115. Suesser denied that grievance, noting that James' transfer request had been denied because James had accumulated 5 misconducts in the previous 7 years rather than because of retaliatory animus. Id. ¶ 122.
On August 16, 2022, Oliver directed James' unit team “to run a vote sheet for an IBT.” Id. ¶ 118. On August 23, 2022, James was informed that his transfer had been denied. Id. ¶ 119. On September 2, 2022, James filed Grievance # 997412, complaining that “due to the filing of a lawsuit” he had been subject to ongoing retaliation including the denial of the transfer.” Id. ¶ 124. That grievance was denied at each level. Id. ¶¶ 125-133.
Based on the foregoing, James asserts the following claims:
1) Hammet, DePlatchett, Thompson, Oliver, and Cheek retaliated against him for filing the 2016 lawsuit by moving him off of the Honor Unit on August 24, 2021;
2) DePlatchett, Cheek, and Thompson retaliated against him for filing Grievance # 954050 by refusing to move him back to the Honor Unit in April 2022;
3) Oliver retaliated against him for filing Grievance # 954050 by denying his request for an IBT in 2022;
4) DePlatchett, Zillman, Oliver, and Suesser retaliated against him for filing Grievance # 991269 by refusing to submit a vote sheet for an IBT;
5) DePlatchett and Suesser retaliated against him for filing Grievance # 997412 by refusing to submit a vote sheet for an IBT; and
6) Hammet, DePlatchett, Thompson, Oliver, and Cheek violated his Fourteenth Amendment right to equal protection by removing him from the Honor Unit due to lack of employment while allowing other inmates without employment to remain on the unit until they could obtain a job.ECF No. 32 ¶¶ 142-186. On September 19, 2023, Defendants filed a motion to dismiss all claims. ECF No. 33. James filed a response in opposition on November 13, 2023. This matter is ripe for disposition.
C. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, it must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because James is proceeding pro se, the allegations of his complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief can be granted, it must do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
D. Analysis
1. Retaliation
To state a claim of retaliation in violation of the First Amendment, a plaintiff must allege facts to support that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). An “adverse action” is one that would “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)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
a. Claims based on the 2016 lawsuit
James' retaliation claim based on his 2016 lawsuit can be quickly dismissed. He filed the lawsuit that allegedly motivated Defendants' retaliatory conduct on July 29, 2016. He was moved to the A/A Honor Unit on July 15, 2021, and removed from that unit on August 24, 2021. The lapse of time between the filing of that prior action and the adverse action of removing James from the Honor Unit is far too great to support an inference of retaliatory motive. See Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (concluding that a span of six months between protected activity and adverse action is not unduly suggestive and does not sufficiently establish any causal link); Fischer v. Transue, 2008 WL 3981521, *10 (M.D. Pa. Aug. 22, 2008) (temporal proximity of three weeks insufficient to establish causation); Mar v. City of McKeesport, 2007 WL 2769718, at *4 (W.D. Pa. Sept. 20, 2007) (three months); Killen v. N.W. Human Servs., Inc., 2007 WL 2684541, at *8 (E.D. Pa. Sept. 7, 2007) (seventeen days).
Nor has James alleged facts to support the existence of “other evidence” of retaliatory animus. See Watson, 834 F.3d at 424 (where temporal proximity is not so close as to be unduly suggestive, the appropriate test is “timing plus other evidence”) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). Although he alleges that Hammet criticized him for “filing lawsuits,” James' only prior lawsuit involved unrelated medical personnel at the prison. Courts have consistently rejected retaliation claims against one defendant based on protected activity directed at other individuals for lack of retaliatory motive. Victor v. Lawler, 2010 WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565 Fed.Appx. 126 (3d Cir. 2014). As noted in several decisions, “there is no apparent reason why [the moving defendants] would want to retaliate against Plaintiff for filing a lawsuit against others.” Williams v. Nyberg, 2023 WL 4628378, at *9 (W.D. Pa. May 10, 2023) (quoting Evans v. Rozum, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17, 2009)). See also Royster v. Beard, 308 Fed.Appx. 576, 579 (3d Cir. 2009) (affirming summary judgment in favor of defendant on plaintiff's claim that he was retaliated against by a defendant who was not the target of his protected activity); Horan v. Collins, 2016 WL 5030468, at *6 (M.D. Pa. Aug. 8, 2016) (drawing no inference of causation where plaintiff's protected activity was not directed at any defendant). James' attempt to infer retaliatory animus on the part of Defendants based on protected activity directed at other individuals is similarly flawed. The absence of any current Defendant's association with the prior lawsuit combined with the significant lapse of time between the prior lawsuit and the alleged retaliatory action in this case belie any causal connection between the two.
b. Claims based on his 2021 and 2022 grievances
James next claims that Defendants retaliated against him throughout 2021 and 2022 by refusing to transfer him back to the Honor Unit. He specifically avers that DePlatchett, Cheek, Thompson, Oliver, Suesser, and Zillman denied (or refused to consider) his request for an IBT in response to grievances that he filed on November 3, 2021, July 27, 2022, and September 2, 2022.
For the most part, James' allegations of retaliatory action fall short of the pleading standard. In many instances, James alleges that an individual engaged in unlawful retaliation simply by denying his grievance. See ECF No. 32 ¶¶ 164, 166, 168-170, 173-74. It is axiomatic, however, that “an officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement” for § 1983 liability. Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) As such, courts have consistently dismissed civil rights claims against prison officials whose only involvement in the alleged violation stemmed from their participation in the grievance process. See, e.g., Stevens v. Winger, 2021 WL 2075585, at *4 (W.D. Pa. May 24, 2021) (dismissing claims against prison administrator whose only awareness of the alleged misconduct was based on receipt of a grievance); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official.”).
Several of James' other allegations are refuted by his own pleading. For example, although he contends that Defendants refused to submit a vote sheet for his transfer in retaliation for his protected conduct, he acknowledges in his Amended Complaint that a vote sheet was circulated on several occasions during the operative timeframe. See ECF No. 32 ¶¶ 164, 166. His pleading also reveals a non-discriminatory reason for the denial of his IBT: several Defendants (and non-Defendants) informed him that he didn't meet the criteria for an IBT because he had incurred recent misconducts. Id. ¶ 165, 173. Because he has failed to allege facts from which it might be inferred that these decisions stemmed from retaliatory animus, dismissal is generally warranted.
Two notable exceptions exist, however. First, James alleges that he spoke with DePlatchett in October 2021 and was told that he could move back into the Honor Unit once he obtained employment. Despite this representation, DePlatchett declined to move him back onto the Honor Unit after procuring a job with the Dietary Department. When James asked why he had not been moved, DePlatchett responded that James left a “bad taste” in everybody's mouth because he liked filing “grievances and lawsuits.” ECF No. 32 ¶ 148. James' objection that he “shouldn't be punished for filing a grievance or lawsuit” was ignored. Id. ¶ 49.
A similar exchange occurred in April 2022. Although Cheek had previously placed James on the wait list for a transfer to the Honor Unit, she later stated that Thompson had ordered her to remove James from the list because he had “filed a grievance.” Id. ¶ 70. James perceived Thompson's subsequent comments about his “behavior” to be a reference to “the actions of Plaintiff filing a lawsuit and grievance.” Id. ¶ 73
Drawing all inferences in James' favor, it appears, based on these exchanges, that James has stated a potentially viable claim for relief against DePlatchett and Thompson. Defendants' motion to dismiss should be denied as to these two narrow claims.
2. Equal Protection
To establish a violation of the Equal Protection Clause for the Fourteenth Amendment, a plaintiff must ordinarily allege “that he was treated differently than other similarly situated inmates, and that this different treatment was the result of intentional discrimination based on his membership in a protected class.” Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir 2016) (citing Hassan v. City of New York, 804 F.3d 277, 294 (3d Cir. 2015)). In his pleading, however, James does not identify himself as a member of a protected class or allege that his transfer request was denied because of his race, religion, or other prohibited consideration. Instead, he compares his situation to that of fourteen other inmates who were permitted to remain on the Honor Unit without maintaining employment after having been “either fired from their job, received Support Team Staffing, refused to work, allowed to be on [general labor pool], and even given the opportunity to seek out future employment [while] allowed to reside on A/A.” ECF No. 32 ¶ 182. Based on these allegations, it appears that James is attempting to proceed under a “class of one” equal protection theory. This requires him to establish that: “he was treated differently than others similarly situated as a result of intentional or purposeful discrimination . . . [and] that his treatment was not ‘reasonably related to [any] legitimate penological interests.'” Brayboy v. Johnson, 2018 WL 6018863, at *11 (E.D. Pa. Nov. 16, 2018) (quoting Holland v. Taylor, 604 F.Supp.2d 692, 701 (D. Del. 2009)).
Defendants maintain that James cannot meet this standard because “many of [the] other inmates [identified by James in his pleading] had circumstances differing them from his own (i.e. gaining employment, losing and then gaining other employment, etc. while on the Honor Unit).” ECF No. 34 at 13. While this may ultimately prove true, Defendants' averment runs squarely afoul of the well-established principle that a district court, in ruling on a motion to dismiss, is “not permitted to go beyond the facts alleged in the Complaint and the documents on which the claims made therein were based.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1424-25 (3d Cir. 1997). Rather, a court reviewing a motion to dismiss must examine only “the plausibility of ‘allegations in the complaint.'” Doe v. Princeton Univ., 30 F.4th 335, 344-45 (3d Cir. 2022) (quoting Twombly, 550 U.S. at 555). “Factual claims and assertions raised by a defendant are not part of that scrutiny.” Id. See also Argott v. Lackawanna Cnty., 2023 WL 4485086, at *10 (M.D. Pa. Feb. 6, 2023) (factual claims and assertions raised by defendants in responsive briefs cannot be considered at the Rule 12(b)(6) stage).
Looking only to the Amended Complaint, the Court concludes that James has plausibly alleged that he was treated differently than other similarly situated inmates with respect to enforcement of the Honor Unit's employment requirement. Disregarding those “well-pleaded facts in favor of those mentioned in [Defendants'] brief” would be “erroneous.” Doe, 30 F.4th at 344-345. See also In re Burlington, 114 F.3d at 1424-25 (“As far as we can see, the only source of information before the district court that could have provided a basis for the conclusion it reached was defendants' brief in support of their motion to dismiss. .. However, since the district court was ruling on a motion to dismiss, it was not permitted to go beyond the facts alleged in the Complaint and the documents on which the claims made therein were based.”). To the extent that Defendants can establish that the inmates referenced by James were not similarly situated, that challenge must be raised in a properly supported motion for summary judgment. III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss [ECF No. 33] be granted in part and denied in part. Specifically, Defendants' motion should be DENIED as to: 1) James' retaliation claims against DePlatchett for refusing to transfer him to the Honor Unit after he obtained employment in October 2021; 2) James' retaliation claim against Thompson for directing Cheek not to transfer James because of his recent grievance; and 3) James' equal protection claim against Hammet, DePlatchett, Thompson, Oliver, and Cheek. Defendants' motion should be GRANTED as to all other claims. It is further recommended that the Clerk of the Court be directed to terminate Defendants Suesser and Zillman as parties to this action.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).