Jones v. HashagenJones v. Hashagen
Laura J. Neal, Esq., Vincent R. Mazeski, Esq., Pennsylvania Department of Corrections Office of Chief Counsel, Mechanicsburg, PA, Matthew D. Dempsey, Esq., Lenahan & Dempsey, Scranton, PA, for Defendant-Appellee.
Before: AMBRO, HARDIMAN and ROTH, Circuit Judges.
OPINION
PER CURIAM.
Pro se appellant Christopher Jones seeks review of the District Court‘s order dismissing his civil rights claims. For the reasons discussed below, we will affirm.
Jones, a Pennsylvania state prisoner, filed suit pursuant to
We have appellate jurisdiction under
As an initial matter, we must determine the issues before us. The District Court determined that Jones had procedurally defaulted his individual capacity claims against both defendants. See Spruill, 372 F.3d at 227-32 (an inmate‘s failure to comply with the procedural requirements of the applicable prison‘s grievance system results in a procedural default of the claim). Both Appellees argue that Jones’ failure to address the issue of procedural default in his brief constitutes waiver of that issue on appeal. An appellant‘s failure to raise an issue on appeal generally constitutes waiver of that issue. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Several courts have recognized that, absent exceptional circumstances, this rule applies to pro se litigants as well. See Al-Ra‘id v. Ingle, 69 F.3d 28, 31 (5th Cir.1995) (deeming issued waived by pro se appellant for failure to address it in his brief); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001) (dismissing appeal where brief failed to include “cogent arguments“); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008) (per curiam). In a briefing order, we specifically directed the parties to address the procedural default issue. Jones neglected to do so. In these circumstances, we do not hesitate to conclude that Jones waived any arguments concerning procedural default. Jones, we note, did not even respond to the waiver argument in his reply brief. We certainly see nothing exceptional enough to prevent a determination of waiver. Thus, Jones has abandoned the procedural default issue as to the claims against the defendants in their individual capacities.
The remaining issue before us is whether the District Court properly dismissed Jones’ claims against the defendants in their official capacities. We agree with the District Court that the claim for money damages against defendant Lindler in his official capacity is barred by sovereign immunity. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir.2010). That immunity runs to state officials if they are sued in their official capacity and the state is the real party upon which liability is to be imposed. Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974). This immunity, afforded by the Eleventh Amendment, can only be abrogated by Congress or by state consent. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996). Congress has not abrogated the immunity regarding Jones’ claims, nor has Pennsylvania consented to suit. See
The District Court determined that Dempsey was also immune from suit under the Eleventh Amendment after determining that he was a “state actor.” See West v. Atkins, 487 U.S. 42, 54-57 (1988) (finding a physician who voluntarily contracted with the state to provide medical services to inmates was a “state actor” within the meaning of § 1983). The District Court relied heavily on the Fourth Circuit‘s decision in Conner v. Donnelly, 42 F.3d 220, 225 (4th Cir.1994), where a physician who was not under contract with the state, but had voluntarily agreed to treat an inmate for orthopedic care on four separate occasions over a six month period, was deemed a “state actor” for § 1983 purposes. Jones’ case strikes us as closer to the facts found in Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th Cir.2009), however, where the Seventh Circuit concluded that a private medical provider did not become a state actor merely by provid