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Hector Tipan Lopez v. Attorney General United States of America

Aglow, Justin

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Secrets, Secrets Are No Fun: The Knicks v. Raptors Trade Secrets Dispute and the Implications of New York\u27s Non-Adoption of the UTSA

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-8-2025 
Isaiah Walker v. SEPTA 
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Recommended Citation 
"Isaiah Walker v. SEPTA" (2025). 2025 Decisions. 543. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
 
No. 24-2275 
______________ 
 
ISAIAH WALKER, 
                       Appellant 
 
v. 
 
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY 
______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:22-cv-03154) 
U.S. District Judge: Honorable John M. Younge 
______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
July 7, 2025 
______________ 
                                                                
Before: SHWARTZ, FREEMAN, and RENDELL, Circuit Judges. 
 
(Filed: July 8, 2025) 
______________ 
 
OPINION* 
______________ 
 
SHWARTZ, Circuit Judge. 
 
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 
does not constitute binding precedent. 
2 
 
 Isaiah Walker appeals the District Court’s order granting summary judgment to his 
former employer, Southeastern Pennsylvania Transit Authority (“SEPTA”), on his 
Family & Medical Leave Act (“FMLA”) claims.  Because material factual disputes exist 
regarding whether Walker provided adequate notice to SEPTA of his intent to invoke his 
FMLA rights, we will affirm in part, vacate in part, and remand for further proceedings.  
I 
A1 
 Walker suffers from sickle cell anemia, which, among other things, causes him to 
experience exhaustion and bone and joint pain.  He disclosed his condition when he was 
hired by SEPTA as a bus operator in March 2018,2 and discussed the disease with 
multiple supervisors.  
Throughout his employment, Walker struggled with attendance and was 
suspended twice for absenteeism.  After a series of absences that otherwise would have 
resulted in his discharge, Walker and SEPTA entered a last-chance agreement, under 
which he agreed that his employment would be terminated if he again accumulated 
twenty “[a]ttendance [p]oints,” which employees incur for certain types of absences.  
App. 555-58.  For example, employees are assessed two points for each sick day, but 
 
1 Because we are reviewing a summary judgment ruling, we construe the disputed 
facts in the light most favorable to the non-movant, Walker.  E.g., Burns v. Pa. Dep’t of 
Corr., 642 F.3d 163, 170 (3d Cir. 2011).    
2 Walker informed SEPTA during his onboarding that he did not require any work 
accommodations and that he does not often feel tired, fatigued, or sleepy during daytime. 
3 
 
employees of Walker’s seniority are entitled to three “Emergency at Home” (“EAH”) 
days each year for which they are not assessed points.  App. 556-57.   
Walker often used his three EAH days when dealing with his health problems to 
avoid accumulating attendance points.  Walker also avoided points by requesting and 
receiving FMLA leave.3  Nevertheless, by the end of May 2021, Walker had accumulated 
18 points.   
 On June 7, 2021, Walker experienced pain associated with his sickle cell anemia 
that required his hospitalization and called SEPTA early that morning.  He asked the 
dispatcher to mark him for an EAH day to avoid accruing points.4  During his deposition, 
Walker initially testified that he told the dispatcher he “had to go to the hospital,” and, 
although she might not have known about his sickle cell condition, “she just put it 
through just for the simple fact that it was urgent[,] and I had to go to the hospital.”  App. 
139-40.  According to the statement of undisputed facts, Walker admitted that “when he 
called out [sick], he [also] informed the dispatcher that he did not have a babysitter.”  
App. 39, 234.  SEPTA records show that the dispatcher noted the reason for Walker’s 
absence as “NO_BABYSITTER.”  App. 222.  Later on June 7, Walker submitted an 
FMLA leave application.  Because the dispatcher recorded Walker’s absence as an EAH 
 
3 Walker was granted FMLA leave in (1) December 2019 for complications 
related to his sickle cell anemia; (2) March through June 2020 due to the COVID-19 
pandemic, for which Walker was “at risk.” App. 92; and (3) June 2021 for the sickle cell 
episode at issue in this case.   
4 Walker mistakenly believed that his EAH day count had reset, and that he had an 
available day to use.     
4 
 
day before he had submitted the FMLA application, Walker’s June 7 absence resulted in 
SEPTA assessing him two attendance points, bringing him to a total of twenty points.   
 Walker had another flare-up on June 8, returned to the hospital, and called in sick, 
which was recorded as sick leave for “SICKLE_CELL” rather than an EAH day.  App. 
222.  SEPTA approved his FMLA leave request for a period commencing with his first 
absence on June 7.  Walker returned to work on June 22.   
 Walker was thereafter informed that he was subject to discipline due to his 
absences, and the union filed a grievance on his behalf.  Despite knowing that SEPTA 
had approved Walker’s FMLA leave, the hearing officer denied Walker’s grievance, 
writing “[SEPTA] is sympathetic to [Walker]’s medical condition; however, the 
attendance policy is a no-fault system and allows the employee the opportunity to reduce 
his points each 30 days.  Mr. Walker failed to reduce his attendance points [by having 
consistent attendance without absences]; therefore, the next step of discipline is 
Discharge.”  App. 615-16.  Accordingly, Walker was terminated.   
B 
 Walker sued SEPTA, alleging, among other things,5  violation of the Americans 
with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and FMLA interference and 
 
5 Walker also raised state law claims but abandoned them by failing to include 
them in his pre-trial memorandum.  See Phx. Can. Oil Co. v. Texaco, Inc., 842 F.2d 
1466, 1475-76 (3d Cir. 1988).  Regardless, Walker makes no argument about these 
claims before us and thus has forfeited them.  E.g., M.S. by & through Hall v. 
Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (“[Appellant] 
forfeited [her] argument by failing to raise it in her opening brief on appeal.”). 
5 
 
retaliation claims, 29 U.S.C. § 2615(a)(1).  Following discovery, SEPTA filed a motion 
for summary judgment, which the District Court granted.  Walker v. Se. Pa. Transp. 
Auth., No. 22-3154, 2024 WL 3069816, at *10 (E.D. Pa. June 20, 2024).  As relevant to 
this appeal, the Court determined that Walker’s FMLA claims failed because he did not 
provide adequate notice to SEPTA of his need to take FMLA leave on June 7, 2021.  Id. 
at *9-10. 
 Walker appeals.6   
II7 
The FMLA “entitle[s] employees to take reasonable leave for medical reasons,” 29 
U.S.C. § 2601(b)(2), so long as they do so “in a manner that accommodates the legitimate 
interests of employers,” id. § 2601(b)(3).  Employers may not interfere with or retaliate 
against employees for invoking their FMLA rights, and “firing an employee for a valid 
request for FMLA leave may constitute” interference with and/or retaliation for 
 
6 Walker makes no argument on appeal about the District Court’s order granting 
summary judgment to SEPTA on his ADA claims and thus has waived any challenge to 
their dismissal.  Pelullo, 399 F.3d at 222. 
 7 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331.  We have 
jurisdiction pursuant to 28 U.S.C. § 1291.  Our review of a district court’s order granting 
summary judgment is plenary, Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 
418 (3d Cir. 2013).  Summary judgment is appropriate where “there is no genuine dispute 
as to any material fact and the movant is entitled to judgment as a matter of law.”  Fed. R. 
Civ. P. 56(a).  The moving party is entitled to judgment as a matter of law when the non-
moving party fails to make “a sufficient showing on an essential element of her case with 
respect to which she has the burden of proof.”  Celotex Corp. v. Catrett, 477 U.S. 317, 
323 (1986). 
6 
 
exercising one’s FMLA rights.  Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d 
Cir. 2009).     
To succeed on an FMLA interference claim, a plaintiff must prove, among other 
things, that he “gave notice to the defendant of his . . . intention to take FMLA leave.”  
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017).  Similarly, to prevail 
on an FMLA retaliation claim, a plaintiff must show, among other things, that “he 
invoked his right to FMLA-qualifying leave.”  Ross v. Gilhuly, 755 F.3d 185, 193 (3d 
Cir. 2014) (internal alterations omitted) (quoting Lichtenstein v. Univ. of Pittsburgh Med. 
Ctr., 691 F.3d 294, 302 (3d Cir. 2012).   
Showing that notice was provided is not particularly onerous.  Lichtenstein, 691 
F.3d at 303, 312.  An employee “need not expressly assert rights under the FMLA or 
even mention the FMLA.”  Id. at 303 (quoting 29 C.F.R. § 825.303(b) (detailing the 
necessary content for notice of unforeseeable FMLA leave)).  Although simply “[c]alling 
in ‘sick’ without providing more information” is insufficient, an employee who (1) gives 
“sufficient information for an employer to reasonably determine whether the FMLA may 
apply to the leave request,” 29 C.F.R. § 825.303(b), and (2) does so “as soon as 
practicable under the facts and circumstances of the particular case,”8 id. § 825.303(a), 
has provided sufficient notice to invoke his FMLA rights.   
 
8 SEPTA’s argument that Walker’s need for leave was foreseeable fails.  Although 
Walker’s sickle cell diagnosis was established and well-documented, the timing of acute 
pain episodes was unpredictable, so he could not have sought leave any sooner.   
7 
 
Viewing the facts in Walker’s favor, a reasonable fact finder could conclude that 
Walker provided adequate notice of his intent to invoke his FMLA rights on June 7.  
Walker testified that he called into dispatch per SEPTA procedure and asked for an EAH 
day because he “had to go to the hospital,” App. 139, and that he initiated a formal 
FMLA leave application several hours later.  Granted, Walker later admitted that “when 
he called out, he informed the dispatcher that he did not have a babysitter,” App. 39, 234, 
and the dispatcher noted the reason for Walker’s absence as “NO_BABYSITTER,” App. 
222.  However, he also testified that he informed the dispatcher of his need to go to the 
hospital and he filed his FMLA application within hours of the call.  Moreover, SEPTA 
granted his FMLA leave for a period covering his absence on July 7.  SEPTA could not 
legally penalize Walker for an absence that became FMLA leave before his firing.  See 
29 C.F.R. § 825.220(c) (“[E]mployers cannot use the taking of FMLA leave as a negative 
factor in employment actions, such as hiring, promotions or disciplinary actions; nor can 
FMLA leave be counted under no fault attendance policies.”).  A reasonable factfinder 
could conclude that Walker provided adequate notice of his intention to invoke his 
FMLA rights on June 7, 2021.  See Lichtenstein, 691 F.3d at 304, 306-07, 312 (holding 
disputed facts regarding notice existed where the employee (1) called in accordance with 
the employer’s required timeline, (2) stated that she was in the emergency room with her 
mother and was thus unable to work that day, and (3) requested leave via email within 
8 
 
days of the incident).  Accordingly, we will vacate the District Court’s order regarding 
Walker’s FMLA claims.9 
III 
 For the foregoing reasons, we will affirm the order granting summary judgment on 
the ADA claims, vacate the order granting summary judgment on the FMLA claims, and 
remand for further proceedings. 
 
9 Because the District Court considered only notice, Walker, 2024 WL 3069816, at 
*10, which is one element of the prima facie case for both the FMLA interference and 
retaliation claims, Capps, 847 F.3d at 152 n.6, 155, we will leave analysis of the 
remaining elements to the District Court on remand, Budhun v. Reading Hosp. & Med. 
Ctr., 765 F.3d 245, 258-59 (3d Cir. 2014).   


Isaiah Walker v. SEPTA

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-9-2025 
Rhonshawn Jackson v. Knapp 
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Recommended Citation 
"Rhonshawn Jackson v. Knapp" (2025). 2025 Decisions. 545. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/545 
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Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3183 
__________ 
 
RHONSHAWN JACKSON, 
   Appellant 
 
v. 
 
UNIT MANAGER MICHAEL KNAPP; GRIEVANCE COORDINATOR/ASSISTANT 
BRUBAKER; SUPERINTENDENT SOLOMON; CORRECTIONAL OFFICER ANNA 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 3:22-cv-00138) 
District Judge:  Honorable Malachy E. Mannion 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 3, 2025 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: July 9, 2025) 
___________ 
 
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. 
2 
 
 Rhonshawn Jackson, an inmate at Pennsylvania State Correctional Institution 
Rockview, appeals pro se from the District Court’s order granting summary judgment in 
favor of appellees, four prison officials.  We will affirm. 
I. 
 Jackson has been in the custody of Pennsylvania’s Department of Corrections for 
more than two decades.  He was transferred to SCI Rockview in 2020 and assigned to the 
Behavioral Management Unit (“BMU”), initially as a Phase 5 inmate, the most restrictive 
classification as far as privileges are concerned.  Through hard work and good behavior, 
Jackson advanced to Phase 2, a step at which prisoners may—in the discretion of prison 
staff—participate in certain educational and vocational programs, access a “mini” law 
library, and order personal items like sneakers and packages of food.  Jackson was not 
offered the full panoply of Phase 2 privileges, so he filed a formal grievance and then 
appealed unsuccessfully when it was denied.   
Privileges aside, conditions at SCI Rockview were less than satisfactory to 
Jackson.  He often complained about the presence of insects and vermin in his cellblock; 
broken computers and outdated legal resources in the library; a shortage of grievance 
forms and submission boxes; unsanitary bedding and soiled prison uniforms; and the 
general lack of cleaning supplies.  All told, Jackson filed 44 grievances concerning those 
and other issues in less than two years—a frequency he claims was not without personal 
consequence.  For example, prison guards allegedly retaliated against Jackson in August 
2020, just days after he lodged a complaint with Unit Manager Michael Knapp, by 
stealing a brand-new pair of sneakers he recently had purchased.  Knapp purportedly 
3 
 
responded to news of Jackson’s pilfered footwear by telling him that staff might have 
chosen another inmate’s shoes if he had not filed so many complaints, prompting yet 
another grievance.  By the end of October 2021, the prison limited Jackson to filing one 
grievance every 15 working days after he filed five frivolous complaints in one month; 
his appeal of the restriction failed.  The 90-day restriction did not prohibit Jackson from 
appealing the denial of his previous grievances. 
Jackson temporarily was transferred to another prison around the time of the 
grievance injunction.  When he returned to SCI Rockview, he discovered that some of his 
legal materials were missing.  He claims a correctional officer confessed to having stolen 
the documents for Knapp.  He also avers that he was moved to a cold cell near the 
Restricted Housing Unit, whose rowdy occupants kept him awake, caused him mental 
distress, and left him stricken with COVID-19, which he attributes to Knapp’s failure to 
enforce proper mitigation protocols.  Jackson contends that he lodged grievances for 
these discrete episodes as well, but they do not appear among the 44 complaints in his 
voluminous prison file, which defendants submitted to the District Court.1   
Jackson initiated this matter in January 2022 by filing a complaint in the United 
States District Court for the Middle District of Pennsylvania against Knapp, 
Superintendent Bobbi Solomon, the prison’s grievance coordinator, and the correctional 
 
1 Following defendants’ submission, Jackson presented the District Court with 
grievance forms addressing his missing documents, cell conditions, and COVID 
diagnosis, which he claims the prison barred him from filing.  The timing of Jackson’s 
proffer, and the conspicuous lack of the standard date-and-time stamps that accompany 
each of his 44 other grievances, caused the court to question the forms’ veracity.   
4 
 
officer who allegedly took his legal documents.  He twice amended his complaint, 
ultimately asserting claims under 42 U.S.C. §§ 1983 and 1985 for violations of his First, 
Eighth, and Fourteenth Amendment rights, and for civil conspiracy.  Defendants filed a 
motion to dismiss, which the District Court converted into a motion for summary 
judgment and granted.  The court concluded that Jackson could not sustain any 
constitutional claims against Solomon because he failed to demonstrate her personal 
involvement in the alleged wrongdoing, and each defendant was entitled to qualified 
immunity on his Eighth Amendment claims regardless.  Jackson’s failure to exhaust his 
administrative remedies by forgoing appeals of all but one of his unrequited grievances, 
and by failing to file bona fide grievances regarding the problems he allegedly 
encountered after returning from his temporary transfer, likewise doomed his 
constitutional challenges.  Notwithstanding that procedural default, the District Court 
analyzed each of his claims on their merits and found them legally deficient as well.  
Jackson appeals. 
II. 
We have jurisdiction under 28 U.S.C. § 1291.  We exercise plenary review over 
the District Court’s summary judgment ruling.  See Blunt v. Lower Merion Sch. Dist., 
767 F.3d 247, 265 (3d Cir. 2014).  Summary judgment is proper “if the movant shows 
there is no genuine dispute as to any material fact and the movant is entitled to judgment 
as a matter of law.”  FED. R. CIV. P. 56(a).  A genuine dispute of material fact exists if the 
evidence is sufficient for a reasonable factfinder to return a verdict for the nonmoving 
party.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 
5 
 
III. 
 Jackson contends that the District Court erred in granting summary judgment in 
favor of appellees because the allegations in his second amended complaint and the 
declaration he attached thereto alone create genuine issues of material fact.  We disagree.  
For the bulk of Jackson’s constitutional claims, we begin and end with administrative 
exhaustion.  “The Prison Litigation Reform Act of 1995 (‘PLRA’) requires that prisoners 
seeking relief in federal court must first exhaust the administrative remedies available at 
the prison level.”  Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (citing 42 U.S.C. 
§ 1997e(a)).  Failure to do so will render a claim procedurally defaulted.  See Spruill v. 
Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004).  In Pennsylvania, the Department of 
Corrections follows a three-step process for resolving grievances: initial review by a 
grievance officer, direct appeal to the facility manager, and an appeal to the Secretary’s 
Office of Inmate Grievances and Appeals for final review.  See id. at 232. 
The record before us demonstrates that Jackson only appealed the denial of one of 
the 44 grievances he filed.2  His efforts to excuse his habitual procedural default are 
unavailing.  He claims that prison officials took a number of steps to obstruct his ability 
to exhaust the grievance process, but none explains his failure to file appeals.  To the 
extent he blames the grievance restriction he received in October 2021, that argument 
 
2 The lone exception was the denial of Jackson’s grievance regarding his inability 
to advance beyond Phase 2.  As to that issue, the District Court correctly concluded that 
Jackson’s due-process claim is meritless because inmates do not have a constitutional 
right to a specific security classification within a given institution.  See Chavarriaga v. 
N.J. Dep’t of Corr., 806 F.3d 210, 225 (3d Cir. 2015) (citing Olim v. Wakinekona, 461 
U.S. 238, 244-45 (1983)). 
6 
 
fails because all but a handful of the grievances upon which his claims are based were 
denied long before the restriction was imposed, and the restriction, by its plain terms, did 
not implicate the administrative appeals process whatsoever.  Jackson offers no evidence 
that prison officials prohibited him from filing appeals from any grievance denials so as 
to create a genuine dispute of material fact.  That omission dooms his constitutional 
challenges stemming from the 43 grievance denials he failed to appeal. 
What remain are Jackson’s claims arising after his return to SCI Rockview 
following a brief administrative transfer.  Jackson says the prison barred him from filing 
grievances raising complaints about his missing documents, low cell temperature, and 
COVID diagnosis, which he attached as exhibits in support of his opposition to 
defendants’ summary judgment motion.  Although the District Court expressed its 
skepticism of the forms’ provenance, it ultimately resolved Jackson’s claims on the 
merits.  The court concluded that his COVID exposure and the cold cell conditions he 
experienced briefly did not violate the Eighth Amendment under prevailing Supreme 
Court and Third Circuit precedent, and that neither those incidents nor the one involving 
his missing legal documents—which, in Jackson’s own telling, were confiscated 
inadvertently as contraband when all of the contents of his cell were packed up in 
anticipation of his return and relocation to a new cell—amounted to retaliation under the 
First Amendment.  We agree largely for the reasons stated by the District Court.   
We also agree that the prison’s grievance process afforded Jackson an adequate 
post-deprivation remedy to address his missing documents.  See Tillman v. Lebanon 
Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000).  The record shows that Jackson 
7 
 
filed a grievance about the confiscation of his trial transcripts and a draft complaint upon 
returning to SCI Rockview in November 2021, which the prison’s grievance coordinator 
time-stamped and then rejected in light of the then-extant 15-day grievance restriction.  
Jackson could have refiled that grievance a few days later upon the expiration of the 
restricted filing period, but he did not.  He cannot now charge appellees with violating his 
due process rights in connection with those materials. 
Lastly, as the District Court aptly noted, Jackson’s civil conspiracy claim under 
Section 1985 fails because he did not allege, must less proffer any evidence, that 
appellees harbored “invidiously discriminatory animus” against him because of his race 
or class.  See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Farber v. City of 
Paterson, 440 F.3d 131, 135 (3d Cir. 2006).  The gravamen of Jackson’s lawsuit has 
always been that prison officials mistreated him because he frequently used the grievance 
process.  Section 1985 does not provide a cause of action for the kind of tortious 
conspiracy he alleges. 
For the foregoing reasons, will affirm the judgment of the District Court. 
 


Rhonshawn Jackson v. Knapp

Eric Johnson v. David Mazie

Leon Drummond v. Progressive Specialty Insurance Co

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-15-2025 
Ajani Posey v. Scott Klinefelter 
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Recommended Citation 
"Ajani Posey v. Scott Klinefelter" (2025). 2025 Decisions. 567. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/567 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
DLD-162        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1428 
___________ 
 
AJANI POSEY, 
   Appellant 
 
v. 
 
SCOTT KLINEFELTER; BRITTANY SCHILIRO; SEAN BRESNAHAN; DARREN 
GINTER; JOHN DOE #1; LIEUTENANT K. SHICK; CAPT. R. MOONEY 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Civil Action No. 3:23-cv-00190) 
District Judge:  Honorable Nora B. Fischer 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
June 12, 2025 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed  July 15, 2025) 
_________ 
 
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. 
 
2 
 
Appellant Ajani Posey appeals from an order of the District Court dismissing the 
second amended civil rights complaint for failure to state a claim. Because this appeal 
does not present a substantial question, we will summarily affirm the District Court’s 
order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. 
I 
 In October 2023, Posey, proceeding in forma pauperis, filed a pro se civil rights 
complaint which alleged that defendants Scott Klinefelter, the warden of State 
Correctional Institution – Houtzdale, and Dr. Laurel Harry, the Pennsylvania Secretary of 
the Department of Corrections, had violated Posey’s Fifth and Eighth Amendment rights 
by allowing Posey to be housed with a hostile inmate, and by allowing Posey’s placement 
on suicide watch during a hunger strike. The complaint also alleged a Fifth Amendment 
claim related to the alleged destruction of Posey’s television. The complaint sought both 
declaratory and injunctive relief, as well as damages, under 42 U.S.C. § 1983. The 
District Court referred the matter to a Magistrate Judge, who produced a Report and 
Recommendation (“R&R”) which recommended dismissing Posey’s complaint with 
leave to amend, because, among other reasons, Posey had not pled facts sufficient to 
implicate either of the named defendants.  
 In response, Posey filed an amended complaint. The Magistrate Judge determined 
that the amended complaint generally failed to state a claim, which the exception of an 
Eighth Amendment claim against Defendant Ginter for assigning Posey the dangerous 
cellmate, which the Magistrate Judge determined was sufficient to survive screening. 
 
3 
 
Posey’s objections, however, disputed the second R&R’s construction of this claim, and 
alleged that defendant Mooney, who had been named as a John Doe, was responsible for 
Posey’s cell assignment. Based on these assertions, the District Court dismissed Posey’s 
first amended complaint, but permitted Posey another opportunity to replead claims 
related to the assault. 
 Posey then filed a second amended complaint, which, for the first time, alleged 
that defendant Shick was responsible for Posey’s housing assignment. Defendant 
Mooney’s involvement was limited to investigating Posey’s assault and concluding that 
the attack was staged. Finally, defendant Klinefelter was alleged to have ordered Posey to 
return to the unsafe housing assignment. Once more, the Magistrate Judge screened the 
complaint, and this time determined that Posey had not asserted any facts that would 
indicate that Shick or Klinefelter were aware of the risk to Posey, and that Mooney’s 
after-the-fact involvement was, on its own, insufficient to create any liability. Over 
Posey’s objections, the District Court adopted the R&R and dismissed the complaint 
without further leave to amend.1 Posey then appealed. 
II 
 We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 
over the dismissal of a complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A. Dooley 
v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). We review denial of leave to amend for an 
 
1 In denying leave to amend, the District Court emphasized that Posey’s multiple prior 
amendments indicated that allowing a third opportunity to amend would be futile.  
 
4 
 
abuse of discretion, but consider whether amendment would be futile de novo. U.S. ex 
rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 849 (3d Cir. 2014) (citing In 
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). Dismissal 
for failure to state a claim is appropriate “if, accepting all well-pleaded allegations in the 
complaint as true and viewing them in the light most favorable to the plaintiff, a court 
finds that [the] plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen 
Inc., 643 F.3d 77, 84 (3d Cir. 2011). If a complaint fails to state a claim, leave to amend 
should be granted unless doing so would be inequitable or futile. Grayson v. Mayview 
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).  
 
III 
  On appeal, Posey argues that the second amended complaint was sufficient under 
the Federal Rules. We disagree.2  
Posey’s Eighth Amendment claims fail for substantially the same reasons as 
provided in the Magistrate Judge’s reports and recommendations. Posey’s allegations 
stemming from being placed on suicide watch fail to state a claim because the step was 
undertaken to protect Posey, who then was on an extended hunger strike. Cf. Palakovic v. 
Wetzel, 854 F.3d 209, 230 (3d Cir. 2017). The claims against Shick and Klinefelter based 
on Posey’s housing assignment fail, because nothing contained in the operative second 
 
2 As a preliminary matter, we agree with the District Court’s dismissal of Posey’s Fifth 
Amendment claim related to the loss of Posey’s television, because Posey had access to 
an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984).  
 
5 
 
amended complaint indicates that either was aware of the threat this particular cellmate 
posed to Posey’s safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Bistrian 
v. Levi, 696 F.3d 352, 367 (3d Cir. 2012). Similarly, Posey’s claim that Mooney 
exhibited a “reckless disregard for civil rights” by concluding that the attack on Posey 
was staged fails, because mere involvement in an after-the-fact investigation, on its own, 
does not implicate Mooney in any underlying constitutional violations.  See Dooley, 957 F.3d 
at 374.  
Finally, the District Court did not abuse its discretion by denying Posey further 
leave to amend. “A District Court has discretion to deny a plaintiff leave to amend where 
the plaintiff was put on notice as to the deficiencies in his complaint, but chose not to 
resolve them.” Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 
2002) (per curiam). The District Court’s orders and the Magistrate Judge’s reports and 
recommendations all informed Posey as to the ways in which the complaints were 
deficient and provided multiple opportunities to amend, and yet Posey repeatedly failed 
to do so. Id.; see also Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 
478, 483 (3d Cir. 2019) (holding that a district court did not abuse its discretion when it 
denied leave to amend after providing two prior opportunities for amendment).  
 Based on the foregoing, Posey’s appeal does not present a substantial question, 
and the District Court’s order dismissing the complaint will be summarily affirmed. 


Ajani Posey v. Scott Klinefelter

USA v. Lynell Guyton

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-24-2025 
A. G.-G. v. Attorney General United States of America 
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PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-2559 
_______________ 
 
LIDIA GOMEZ-GABRIEL; A. G.-G., 
                                    Petitioners 
 
v. 
 
ATTORNEY GENERAL UNITED STATES OF AMERICA 
______________ 
 
On Petition for Review of a Final Order of the  
Board of Immigration Appeals 
Agency Nos. A208-681-927; A208-681-928 
Immigration Judge: Mary C. Lee 
_______________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on April 28, 2025 
 
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES, 
Circuit Judges 
 
(Opinion Filed: July 24, 2025) 
 
 
2 
 
Abdoul A. Konare 
5235 Westview Drive, Suite 101 
Frederick, MD 21703 
 
Counsel for Petitioners 
 
Spencer Shucard 
United States Department of Justice 
Office of Immigration Litigation 
P.O. Box 878 
Ben Franklin Station 
Washington, DC 20044 
 
 Counsel for Respondent  
_______________ 
 
OPINION OF THE COURT 
_______________ 
 
PER CURIAM 
Guatemalan native and citizen Lidia Gomez-Gabriel 
and her son A.G.-G. (collectively, Petitioners) petition for 
review of a final order of removal issued by the Board of 
Immigration Appeals (BIA) denying their application for 
asylum, withholding of removal, and protection under the 
Convention Against Torture (CAT).  Our law was not clear as 
to whether a BIA summary affirmance, as the agency 
employed here, resuscitates unexhausted claims, so we 
confirm, today, that it does not.  Because the BIA did not err in 
denying Petitioners’ withholding of removal application and 
Petitioners failed to exhaust their administrative remedies with 
3 
 
respect to their asylum and CAT claims, we will deny the 
petition.  
I. BACKGROUND  
Gomez-Gabriel, who is indigenous Mayam Mam, 
testified that Guatemalan gang members harassed her for 
money on her way to work on about ten occasions, and on at 
least one occasion threatened her with a weapon.  After that 
incident, however, she avoided the road on which she was 
targeted and had no further interactions with the criminals.   
Fearing for her safety, she and her son fled Guatemala 
and entered the United States without inspection in November 
2015.  The Department of Homeland Security promptly 
initiated removal proceedings and detained Petitioners for 
twelve days, after which, it informed Petitioners about the one-
year deadline to file an asylum application and released them.  
Petitioners conceded removability but filed an application for 
asylum, withholding of removal, and CAT protection on 
August 21, 2017.  The Immigration Judge (IJ) denied the 
petition determining (1) that the asylum application was time 
barred and (2) that the asylum, withholding of removal, and 
CAT applications were without merit.  Petitioners timely 
appealed to the BIA, which affirmed without opinion under 8 
C.F.R. § 1003.1(e)(4).   
4 
 
II. DISCUSSION1 
The government contends that we cannot review 
Petitioners’ claims because they failed to exhaust their 
administrative remedies before the BIA.  We agree in part.   
Petitioners did fail to exhaust their asylum and CAT claims, 
but they adequately challenged their withholding of removal 
claim.  Nevertheless, that claim fails on the merits.  
A. Exhaustion Before the BIA 
Under 8 U.S.C. § 1252(d)(1), a petitioner must “exhaust 
all remedies available to her in order to preserve her right to 
appellate review of a final order of removal.”  Yan Lan Wu v. 
Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005).  This requirement 
applies to “each particular issue raised by the petitioner.”  
Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012).  
Although we no longer treat § 1252(d) as a jurisdictional bar, 
once the government raises the issue, we must enforce it.  
Aguilar v. Att’y Gen., 107 F.4th 164, 168–69 (3d Cir. 2024).  
Still, the standard is not high; we require only that the 
“petitioner makes some effort, however insufficient, to place 
the Board on notice of a straightforward issue being raised on 
appeal.”  Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 
2006) (quoting Yan Lan Wu, 393 F.3d at 422).  But when 
petitioners make “no such effort,” we will not disturb the 
agency’s conclusions.  Lin v. Att’y Gen., 543 F.3d 114, 122 (3d 
 
1 The BIA had appellate jurisdiction under 8 C.F.R. 
§ 1003.1(b)(3) and § 1240.15.  We have jurisdiction under 8 
U.S.C. § 1252(a)(1).   
5 
 
Cir. 2008), abrogated on other grounds by Santos-Zacaria v. 
Garland, 598 U.S. 411 (2023). 
Petitioners here did nothing to put the agency on notice 
that they took issue with the IJ’s conclusions regarding the 
asylum time-bar or CAT.  When Petitioners appealed to the 
BIA, they challenged only the IJ’s substantive asylum and 
withholding of removal analysis.  Neither the notice of appeal 
nor the brief before the BIA mentioned CAT or challenged the 
IJ’s determination that the asylum claim was untimely.  
Because Petitioners failed to raise these dispositive issues 
before the BIA, they failed to exhaust their administrative 
remedies, as necessary “to preserve [their] right to appellate 
review” of their removal order.  Yan Lan Wu, 393 F.3d at 422.  
In short, Petitioners’ arguments on appeal come too little 
before the BIA and too late before the IJ, so given their failure 
to challenge the time-bar or CAT determinations, we cannot 
consider either.  See Lin, 543 F.3d at 122 (observing petitioner 
failed to raise an issue before the BIA because he failed to 
mention it in his notice of appeal or brief); Abdulrahman v. 
Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003) (same). 
The fact that the BIA summarily affirmed the IJ’s 
opinion does not rescue Petitioners’ arguments.  The BIA, in 
exercising its congressionally delegated authority, is free to 
enforce or waive compliance with its rules, including its 
requirement that a petitioner “must specifically identify the 
findings of fact, the conclusions of law, or both, that are being 
challenged” on appeal.  Lin, 543 F.3d at 124–25 (quoting 8 
C.F.R. § 1003.3(b)).  As we observed in Lin, when the BIA sua 
sponte considers an issue and issues a reasoned opinion, “the 
6 
 
record is adequate for our review,” id. at 125, so we may “look 
past a petitioner’s failure to make an argument to the BIA,” 
Aguilar, 107 F.4th at 169.  But where the BIA merely affirms 
without an opinion, as it did here, its decision does not displace 
the mandatory exhaustion requirement, see Lin, 543 F.3d at 
125–26; Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 
2007), abrogated on other grounds by Santos-Zacaria, 598 
U.S. 411; Karaj v. Gonzales, 462 F.3d 113, 120 (2d Cir. 2006); 
Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), abrogated 
on other grounds by Santos-Zacaria, 598 U.S. 411; see also 
Al-Fara v. Gonzales, 404 F.3d 733, 737, 743 (3d Cir. 2005) 
(declining to review unexhausted claims after BIA summary 
affirmance). 
This distinction respects the exhaustion requirement’s 
purpose because reviewing arguments that the BIA has not 
expressly considered encourages “premature interference with 
agency processes” and robs the agency of the “opportunity to 
correct its own errors, to afford the parties and the courts the 
benefit of its experience and expertise, and to compile a record 
which is adequate for judicial review.”  Weinberger v. Salfi, 
422 U.S. 749, 765 (1975).  When the BIA summarily affirms, 
the reviewing board member must consider the complexity and 
clarity of the issues raised on appeal but cannot provide an 
explanation for her decision, leaving a reviewing court without 
any indication that the agency considered something other than 
the issues a petitioner presented.  8 C.F.R. § 1003.1(4); Zara, 
383 F.3d at 931.  Reviving issues that the BIA presumably did 
not consider would put us in the position of leapfrogging over 
7 
 
the agency’s first-line review and interfering with the authority 
Congress delegated to the agency.   
B. Withholding of Removal 
Without their asylum and CAT claims Petitioners are 
left to appeal only the denial of their withholding of removal 
application, which they raised, albeit opaquely, before the BIA.  
To qualify for withholding, petitioners must establish that their 
membership in a cognizable social group “is ‘one central 
reason’ why [they were] or will be targeted for persecution.”  
Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 684–85 (3d Cir. 
2015).  We review the IJ’s determination on this front for 
substantial evidence, deferring “unless any reasonable 
adjudicator would be compelled to conclude to the contrary.”  
8 U.S.C. § 1252(b)(4)(B); see Gonzalez-Posadas, 781 F.3d at 
686.  Here, substantial evidence supports the IJ’s determination 
that Gabriel-Gomez’s membership in a protected group, 
including her tribal membership, was a not a central reason for 
her alleged persecution; rather, she was a victim of generalized 
gang violence.    
Gomez-Gabriel asserts that the gangs targeted her 
because she is Mayam Mam and because she is a woman, but 
when the criminals threatened her with a weapon, they did not 
mention anything about those characteristics.  As the IJ 
acknowledged, Gomez-Gabriel testified that the thieves at 
some point “mocked” her for being a Mayam woman when 
shaking her down, A.R. 131, but she could only provide a 
vague recollection without context or detail.  Her other 
testimony indicates that her harassers did not target her 
8 
 
specifically but, rather, were “constantly harming and beating 
up people” for money.  A.R. 150.   She initially stated that she 
feared becoming a target if returned to Guatemala because 
gangs believe people returning from the United States are “full 
of money,” A.R. 147, although when the IJ asked whether she 
had any other reason to fear returning to Guatemala, she added 
that the gang members would “see” that she is 
“indigenous,” id. 
In sum, substantial evidence supports the IJ’s 
conclusion that, despite the attackers’ alleged use of ethnic 
slurs on some occasions, they were motivated, not by animus 
towards Gabriel-Gomez’s group membership, but by financial 
gain.  See Lopez v. Att’y Gen., No. 24-1444, 2025 WL 
1790265, at *7 (3d Cir. June 30, 2025); Lie v. Ashcroft, 396 
F.3d 530, 535 (3d Cir. 2005).  And a petitioner “targeted out of 
a simple desire for money has not experienced persecution on 
account of a ground protected by the INA.”  Thayalan v. Att’y 
Gen., 997 F.3d 132, 144 (3d Cir. 2021).  Thus, although the 
Court sympathizes with Gabriel-Gomez’s fear of gang 
violence, Petitioners are ineligible for withholding of removal.  
III. CONCLUSION 
For the foregoing reasons, we will deny the petition for 
review.  


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