Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-2-2025 
Horizon Blue Cross Blue Shield of New Jersey v. Chryssoula 
Arsenis 
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Recommended Citation 
"Horizon Blue Cross Blue Shield of New Jersey v. Chryssoula Arsenis" (2025). 2025 Decisions. 725. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/725 
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for the 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         NOT PRECEDENTIAL 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. 24-2009 
__________ 
 
HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY 
 
v. 
 
CHRYSSOULA ARSENIS; 
SPEECH & LANGUAGE CENTER LLC; 
JOHN DOES 1-10; 
ABC CORPORATIONS 1-10 
 
       Chryssoula Arsenis; Speech & Language Center, LLC, 
                      Appellants 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 3:23-cv-22822) 
District Judge:  Honorable Michael A. Shipp 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
February 26, 2025 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Opinion filed September 2, 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 
 Chryssoula Arsenis, proceeding pro se, appeals from an order directing her to 
show cause why a filing injunction should not be imposed and remanding to state court a 
case brought against her and her company, Speech and Language Center, by Horizon 
Blue Cross Blue Shield (Horizon).  We will dismiss this appeal in part for lack of 
jurisdiction and will otherwise affirm the District Court’s judgment. 
I. 
 Horizon filed a complaint in New Jersey Superior Court against Arsenis and 
Speech and Language Center, alleging that they engaged in fraudulent billing.  The 
litigation resulted in a settlement agreement.  Horizon later moved in state court to 
enforce its rights under the settlement agreement.  The state court granted that motion. 
Thereafter, in 2022, Arsenis removed the case to the United States District Court 
for the District of New Jersey.1  D.N.J. Civ. No. 3:22-cv-01748.  Her notice of removal, 
which cited 28 U.S.C. § 1441, alleged that there was federal-question and diversity 
jurisdiction.  The District Court remanded the matter to state court, determining that 
federal jurisdiction was lacking and that removal was untimely.  Arsenis appealed.  We 
dismissed the appeal for lack of jurisdiction, noting that the District Court’s “‘routine’ 
jurisdictional determination falls within the prohibition of appellate review under 
[28 U.S.C.] § 1447(d).”  C.A. No. 22-2577 (order entered Dec. 14, 2022).  The Supreme 
Court denied Arsenis’ petition for a writ of certiorari and her petition for rehearing.  
 
1 We note that Arsenis cannot proceed pro se in federal court on behalf of her company.  
See Simbraw v. United States, 367 F.2d 373, 373-74 (3d Cir. 1966) (per curiam) 
(providing that a corporation may appear in federal court only through licensed counsel). 
 
3 
On November 29, 2023, Arsenis filed another notice of removal, this time citing 
28 U.S.C. § 1441(b) and § 1443.  D.N.J. Civ. No. 3:23-cv-22822.  Horizon filed a motion 
to remand, arguing that the notice of removal was untimely and that the District Court 
lacked jurisdiction.  Horizon also filed a “cross-motion for sanctions.”  Arsenis filed 
motions to strike a state court judge’s order, entered in a separate underlying proceeding, 
and defamatory statements allegedly made by Horizon.   
 The District Court granted Horizon’s motion to remand, holding that it lacked 
subject matter jurisdiction and that Arsenis’ removal motion was untimely.  The District 
Court also concluded that, “[g]iven [its] finding that it lacks subject-matter jurisdiction 
over this action, it cannot consider [Arsenis’] Motions to Strike.”2  Finally, with respect 
to Horizon’s motion for sanctions, the District Court directed Arsenis to show cause as to 
“why she should not be enjoined from removing the Instant Action and similar actions to 
this Court in the future.”  Arsenis timely appealed.   
II. 
 Before we can reach the merits of this appeal, we must address our jurisdiction 
and the scope of the appeal.  Pursuant to 28 U.S.C. § 1447(d), “[a]n order remanding a 
case to the State court from which it was removed is not reviewable on appeal or 
otherwise.”  See Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 157 (3d 
Cir. 1998) (recognizing that, through § 1447(d), “Congress has fashioned an exception to 
 
2 We note that Arsenis has not challenged on appeal the District Court’s decision not to 
address her motions to strike.  Therefore, that issue is forfeited.  M.S. ex rel. Hall v. 
Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (holding that claims 
were forfeited where appellant failed to raise them in opening brief). 
 
4 
the general rule of review, and made a district court’s initial determination that removal 
was inappropriate a nonreviewable one”).  But § 1447(d)’s jurisdictional bar does not 
apply to remand orders in cases removed pursuant to 28 U.S.C. § 1443.  Davis v. 
Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997).  To remove a case under that provision, “a 
defendant’s notice of removal must assert the case is removable ‘in accordance with or by 
reason of’” § 1443(1).  BP P.L.C. v. Mayor & City Council of Balt., 141 S. Ct. 1532, 
1538 (2021).   
In her notice of removal, Arsenis cited § 1443, which was sufficient to invoke that 
removal statute.  See id. at 1538 (“Once [a defendant cites § 1443 in a notice of removal] 
and the district court ordered the case remanded to state court, the whole of its order 
became reviewable on appeal.”).  Accordingly, we have jurisdiction to review the District 
Court’s decision to remand the case to state court.3  See 28 U.S.C. § 1291; Lazorko v. Pa. 
Hosp., 237 F.3d 242, 247 (3d Cir. 2000) (exercising plenary review over District Court’s 
decision to remand).  Jurisdiction exists even though Arsenis’ notice of removal cited 
both § 1441 and § 1443.  See BP, 141 S. Ct. at 1538 (“Nor does it matter if (as here) a 
defendant removes a case ‘pursuant to’ multiple federal statutes.”).  And our review 
encompasses “the merits of all theories for removal that a district court has rejected.”  See 
id. at 1537. 
 
3 But we lack jurisdiction over the District Court’s direction that Arsenis show cause why 
a filing injunction should not be issued.  See Weitzman v. Stein, 897 F.2d 653, 657 
(2d Cir. 1990) (holding that order to show cause was not an appealable final order).   
 
5 
III. 
Turning now to the merits, we conclude that the District Court properly remanded 
the case to the state court because it lacked subject matter jurisdiction.   
A. 
A defendant may remove to federal district court a civil action brought in state 
court if a district court has original jurisdiction over it.  See 28 U.S.C. § 1441(a).  The 
question is whether “it could have been brought originally in federal court, either because 
the complaint raises claims arising under federal law or because it falls within the court’s 
diversity jurisdiction.”  Home Depot U. S. A., Inc. v. Jackson, 587 U.S. 435, 441 (2019).  
Diversity jurisdiction does not apply here because, as the District Court properly 
concluded when remanding the case the first time, both Arsenis and Horizon are citizens 
of New Jersey.  See 28 U.S.C. § 1332(a) (providing that federal district courts have 
subject matter jurisdiction when there is complete diversity of citizenship between the 
parties and the amount in controversy exceeds $75,000); Johnson v. SmithKline Beecham 
Corp., 724 F.3d 337, 346 (3d Cir. 2013) (stating that complete diversity means that “no 
plaintiff can be a citizen of the same state as any of the defendants”). 
In addition, the District Court lacked federal question jurisdiction.  “The presence 
or absence of federal-question jurisdiction is governed by the “well-pleaded complaint 
rule,” which provides that “federal jurisdiction exists only when a federal question is 
presented on the face of the plaintiff’s properly pleaded complaint.”  Caterpillar Inc. v. 
Williams, 482 U.S. 386, 392 (1987).  Here, Horizon’s state court complaint, on its face, 
did not raise a federal question under 28 U.S.C. § 1331.  Notably, Arsenis has not 
 
6 
contested the District Court’s reiteration of its earlier conclusion that Horizon’s state 
court complaint “allege[d] only state law claims:  insurance fraud, common law fraud, 
breach of contract, unjust enrichment, and negligent misrepresentation.”  Instead, to 
establish federal question jurisdiction, Arsenis argues that the Employee Retirement 
Income Security Act (ERISA) preempts state law and acts as an exception to the well-
pleaded complaint rule.  Although the “complete pre-emption” doctrine provides an 
exception to well-pleaded complaint rule, see Krashna v. Oliver Realty, Inc., 895 F.2d 
111, 113 (3d Cir. 1990), that doctrine does not apply here, where a healthcare provider 
sought to recover for payment of inflated or fraudulent bills.  See Maglioli v. All. HC 
Holdings LLC, 16 F.4th 393, 407-08 (3d Cir. 2021) (stating that “[c]omplete preemption 
is rare”); Pascack Valley Hosp. v. Loc. 464A UFCW Welfare Reimbursement Plan, 388 
F.3d 393, 400 (3d Cir. 2004) (“conclud[ing] that the Hospital could not have brought its 
claims under [ERISA’s civil enforcement mechanism] because the Hospital does not 
have standing to sue under that statute”); Hobbs v. Blue Cross Blue Shield of Ala., 276 
F.3d 1236, 1241 (11th Cir. 2001) (stating that healthcare provider claims usually are not 
subject to complete preemption because “[h]ealthcare providers . . . generally are not 
considered ‘beneficiaries’ or ‘participants’ under ERISA” (citing Cagle v. Bruner, 112 
F.3d 1510, 1514 (11th Cir. 1997))).  And although Arsenis asserted that enforcement of 
the settlement agreement violated her federal constitutional and statutory rights, a federal 
defense “usually is insufficient to warrant removal to federal court.”  Dukes v. U.S. 
Healthcare, Inc., 57 F.3d 350, 353 (3d Cir. 1995). 
 
7 
B. 
As noted above, Arsenis’ notice of removal also cited 28 U.S.C. § 1443, which 
permits removal of a pending state court action “[a]gainst any person who is denied or 
cannot enforce in the courts of such State a right under any law providing for the equal 
civil rights of citizens of the United States, or of all persons within the jurisdiction 
thereof.”  28 U.S.C. § 1443(1);4 Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997) 
(stating that § 1443 is “a narrow exception to the rule that a state court action may be 
removed to a federal district court only if federal jurisdiction is evident on the face of the 
plaintiff’s well-pleaded complaint”).  Removal under § 1443 “requires satisfaction of a 
two-pronged test: a state court defendant must demonstrate both (1) that he is being 
deprived of rights guaranteed by a federal law ‘providing for . . . equal civil rights’; and 
(2) that he is ‘denied or cannot enforce’ that right in the courts of the state.”  Davis, 
107 F.3d at 1047 (internal quotation marks omitted).  For the first prong, a defendant 
must demonstrate that the civil rights she asserts were denied are “in the specific 
language of racial equality” rather than “phrased in terms of general application available 
to all persons or citizens.”  Georgia v. Rachel, 384 U.S. 780, 792 (1966).  Under the 
second prong, removal is proper only where a defendant’s federal civil rights “will 
inevitably be denied by the very act of bringing the defendant to trial in the state court.”  
 
4 Subsection (2) of § 1443 “confers a privilege of removal only upon federal officers or 
agents and those authorized to act with or for them, in affirmatively executing duties 
under any federal law providing for equal civil rights.”  City of Greenwood, Miss. v. 
Peacock, 384 U.S. 808, 824 (1966).  Because Arsenis is not a federal officer or agent, that 
subsection of § 1443 is inapplicable.   
 
8 
Peacock, 384 U.S. at 828.  The denial of federal civil rights must generally be “manifest 
in a formal expression of state law . . . such as a state legislative or constitutional 
provision, rather than a denial first made manifest in the trial of the case.”  Johnson v. 
Mississippi, 421 U.S. 213, 219 (1975) (internal quotation marks and citation omitted). 
Arsenis failed to satisfy the requirements for removal under § 1443.  See Erie Ins. 
Exch. by Stephenson v. Erie Indem. Co., 68 F.4th 815, 818 (3d Cir. 2023) (stating that 
the party seeking removal “bears the burden of establishing federal jurisdiction”), cert. 
denied, 144 S. Ct. 1007 (2024).  She now alleges “violations of federally protected rights 
under the [Americans with Disabilities Act (ADA)].”  But she has not couched her civil 
rights claims in terms of racial equality.  And although she vaguely claims that her rights 
“cannot be adequately protected in state court,” she has not shown that she cannot 
enforce her federal rights in the New Jersey courts due to some “formal expression of 
state law.”  Cf. Hapgood v. City of Warren, 127 F.3d 490, 494 (6th Cir. 1997) (stating 
that “[s]tate courts have concurrent jurisdiction over ADA claims”). 
IV. 
In sum, we conclude that we lack jurisdiction over the show cause order, but that 
we have jurisdiction over the District Court’s decision to grant Horizon’s motion to 
remand the case to state court, which was proper.  Accordingly, we will dismiss the 
appeal in part for lack of jurisdiction, and to the extent that we do have jurisdiction, we 
will affirm the District Court’s judgment.5  
 
5 Horizon’s motion to seal Arsenis’ appendix is granted.  We direct the Clerk’s Office to 
seal that appendix for twenty-five years, as it contains personal information about 
 
9 
 
 
individuals who received services from the Speech and Language Center.  See 3d Cir. 
L.A.R. 106.1(a). 


Horizon Blue Cross Blue Shield of New Jersey v. Chryssoula Arsenis

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-3-2025 
In Re: David Pinckney 
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Recommended Citation 
"In Re: David Pinckney" (2025). 2025 Decisions. 728. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/728 
This September is brought to you for free and open access by the Opinions of the United States Court of Appeals 
for the 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. 
 
 
HLD-020        NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-2439 
___________ 
 
IN RE: DAVID HENRY PINCKNEY, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the District of New Jersey 
(Related to D.N.J. Civ. No. 3:25-cv-00163) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
 
August 28, 2025 
Before: CHAGARES, Chief Judge, HARDIMAN, and PORTER, Circuit Judges 
 
(Opinion filed September 3, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
David Henry Pinckney filed a pro se petition for a writ of mandamus compelling 
the District Court to rule on his motion for reconsideration of an order dismissing his 
civil complaint without prejudice and denying his motion for summary judgment.  We 
will deny the petition.  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Pinckney filed a complaint pursuant to 18 U.S.C. § 1341 against “Somerset 
Probation” alleging unauthorized seizure of his finances through coercion and fraud.  See 
ECF No. 1.  On February 13, 2025, Pinckney filed a motion for summary judgment, 
again claiming Somerset Probation lacked legal authority to collect his money “using the 
usufruct David. H. Pinckney.”  See ECF No. 6 at 2.  On February 27, 2025, the District 
Court granted Pinckney’s application to proceed in forma pauperis, screened his 
complaint pursuant to 28 U.S.C. § 1915(e)(2), and dismissed it without prejudice.  In the 
same order, the District Court denied Pinckney’s motion for summary judgment as moot.  
On March 13, 2025, Pinckney filed a motion for reconsideration.  That motion has not 
been resolved.  Pinckney filed the instant petition for writ of mandamus on July 30, 2025.   
A writ of mandamus is a drastic remedy that is available only in extraordinary 
cases.  See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378–79 (3d Cir. 2005).  
Generally, mandamus is a means “to confine an inferior court to a lawful exercise of its 
prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do 
so.”  Id. at 378 (quoting In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000)).  Pinckney 
must show that he has no other adequate means to obtain relief and that he has a clear and 
indisputable right to the writ.  See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per 
curiam).  While district courts have discretion over docket management, see In re Fine 
Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), a writ of mandamus may be 
 
3 
 
warranted where “undue delay is tantamount to a failure to exercise jurisdiction[.]”  
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).   
Pinckney’s motion for reconsideration has been pending since March 2025.  The 
delay presented here has not yet amounted to a failure to exercise jurisdiction.  See id.  
We are confident that the District Court will rule on Pinckney’s pending motion in a 
timely manner.  
We will thus deny Pinckney’s mandamus petition. 


In Re: David Pinckney

USA v. Raymon Walters

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-5-2025 
Ethel Hayden v. Allegheny Health Network 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Ethel Hayden v. Allegheny Health Network" (2025). 2025 Decisions. 738. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/738 
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for the 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. 24-1596 
_____________ 
 
ETHEL HAYDEN, 
Appellant 
 
v. 
 
ALLEGHENY HEALTH NETWORK; ALLEGHENY VALLEY HOSPITAL 
_____________ 
 
On Appeal from the United States District Court  
for the Western District of Pennsylvania  
(D.C. No. 2:21-cv-00525) 
District Judge: Honorable Marilyn J. Horan 
_____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
July 8, 2025 
_____________ 
 
Before: KRAUSE, MATEY, and PHIPPS, Circuit Judges. 
 
(Filed: September 5, 2025) 
_____________ 
 
OPINION* 
_____________ 
 
 
 
 
 
*This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 
does not constitute binding precedent. 
2 
 
MATEY, Circuit Judge. 
Ethel Hayden sued Allegheny Valley Hospital and Allegheny Health Network 
(collectively, Allegheny), seeking relief under Title VII of the Civil Rights Act of 1964, 
the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities 
Act of 1990. She argues that the District Court erred in granting summary judgment on 
her discrimination and failure to accommodate claims, as well as her hostile work 
environment claim based on religion.1  
We see no error in either determination. First, Title VII requires that a charge of 
discrimination on a protected ground “be filed with the EEOC within 180 days of the 
occurrence of the alleged unlawful employment practice.” Burgh v. Borough Council of 
Montrose, 251 F.3d 465, 469 (3d Cir. 2001); see 42 U.S.C. § 2000e-5(e)(1). And a 
complainant must permit the EEOC to investigate for 180 days before she can file suit. 
§ 2000e-5(f)(1). If after 180 days the EEOC elects not to bring suit and the matter has not 
otherwise been resolved, the Commission issues a right to sue letter. See § 2000e-5(f)(1); 
29 C.F.R. § 1601.28. Then, “if the complainant does choose to bring a private action, it 
must be filed within 90 days of the date on which the complainant has notice of the 
EEOC’s decision not to pursue the administrative charge.” Burgh, 251 F.3d at 470. The 
statutory ninety-day deadline acts as a statute of limitations on the claims contained in the 
EEOC charge. Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 176 (3d Cir. 1999). 
 
1 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have 
jurisdiction under 28 U.S.C. § 1291. Our review is plenary. Ellis v. Westinghouse Elec. 
Co., 11 F.4th 221, 229 (3d Cir. 2021). 
3 
 
 But Hayden did not comply with the ninety-day deadline for filing a complaint 
after she received notice from the EEOC of her right to sue following her first EEOC 
charge.2 See id. And her claims of discrimination and failure to accommodate stem from 
that first EEOC filing, not her later EEOC charge. So the District Court correctly granted 
summary judgment on those claims. 
 Second, Hayden’s claim of a hostile work environment is without merit because 
the purported discrimination was neither pervasive nor severe. See Castleberry v. STI 
Grp., 863 F.3d 259, 264 (3d Cir. 2017). Hayden points to a handful of disconnected 
instances such as a coworker ripping down a Christmas poster she had displayed;  the 
same coworker displaying Halloween decorations which Hayden found offensive; and the 
hospital scheduling Hayden to work on Wednesdays, when she previously had that day 
off to attend Bible study.3 None of these intermittent instances over Hayden’s forty-year 
career, separately or taken together, manifest discrimination “severe enough to 
contaminate an environment even if not pervasive,” nor is the “less objectionable[] 
conduct . . . pervasive.” Castleberry, 863 F.3d at 264 (citation modified).  
So we will affirm the District Court’s grant of summary judgment. 
 
2 Hayden explicitly references religious discrimination on appeal, but we construe 
her argument to encompass other claims of discrimination and failure to accommodate 
from the Second Amended Complaint. 
3 The District Court observed that Hayden could not recall the exact timing of the 
Christmas poster and Halloween decoration incidents, and that they occurred well before 
the scheduling issue.  


Ethel Hayden v. Allegheny Health Network

In Re: Whittaker Clark & Daniels

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-12-2025 
Christian Lauria v. Lieb 
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Recommended Citation 
"Christian Lauria v. Lieb" (2025). 2025 Decisions. 750. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/750 
This September is brought to you for free and open access by the Opinions of the United States Court of Appeals 
for the 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. 
 
 
          PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 24-1461 
_____________ 
 
CHRISTIAN JAMES LAURIA, 
   
Appellant 
v. 
 
C.O. LIEB, Allegheny County Jail, Individual and Official 
Capacity; C.O. CARR, Allegheny County Jail, Individual and 
Official Capacity; C.O. FORSICKA, Allegheny County Jail, 
Individual and Official Capacity; ALLEGHENY COUNTY 
JAIL; C.O. RICH GERBER 
      
_____________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(District Court No. 2:22-cv-00486) 
District Judge: Honorable Maureen P. Kelly 
_____________ 
 
Argued: February 26, 2025 
 
Before:  RESTREPO, MONTGOMERY-REEVES and 
SCIRICA, Circuit Judges. 
 
 
 
2 
 (Filed: September 12, 2025) 
 
Jonathan Gibson [ARGUED] 
Christine A. Monta 
Devi M. Rao 
Roderick & Solange MacArthur Justice Center 
501 H Street NE, Suite 275 
Washington, DC 20002 
 
     Counsel for Appellant 
 
J. Alfred Bacharach [ARGUED] 
Allegheny County Law Department 
445 Fort Pitt Boulevard, 3rd Floor 
Pittsburgh, PA 15219 
 
     Counsel for Appellees 
 
_________ 
 
OPINION OF THE COURT 
_________ 
RESTREPO, Circuit Judge 
Appellant Christian James Lauria is an incarcerated 
litigant who brought suit against the Allegheny County Jail and 
several of its corrections officers for excessive force and 
deliberate indifference.  Lauria proceeded pro se before the 
District Court and struggled in opposing a motion for summary 
judgment filed by Appellees.  Appellees, who argued that 
Lauria had failed to exhaust his administrative remedies as 
required by the Prison Litigation Reform Act, supported their 
 
 
3 
motion for summary judgment with an affidavit attesting that 
prison records contained no evidence of a grievance filed by 
Lauria.  Though Lauria alleged that he had submitted a 
grievance form through the slot in his cell door, he failed to 
make this allegation in the form of an affidavit or sworn 
pleading.  The District Court concluded that it was barred from 
considering Lauria’s unsworn allegations and granted 
summary judgment in favor of Appellees on exhaustion 
grounds. 
 
The District Court was correct to conclude that Lauria’s 
unsworn allegations could not create an issue of material fact, 
as we held in United States ex rel. Doe v. Heart Sol., PC, 923 
F.3d 308 (3d Cir. 2019).  But the District Court saw Doe’s 
holding as even more expansive, barring it from considering 
Lauria’s unsworn allegations in any respect at summary 
judgment.  This application of Doe was erroneous: our holding 
in Doe does not bar courts from considering unsworn 
allegations when determining the propriety of an order 
pursuant to Federal Rule of Civil Procedure 56(e).  
Accordingly, we will vacate the District Court’s order granting 
summary judgment and remand for further consideration 
consistent with this opinion.  
 
I. Background 
 
 On March 18, 2021, Lauria was booked into the 
Allegheny County Jail as a pre-trial detainee.  Lauria alleges 
that three corrections officers—Officer Daniel Lieb, Sergeant 
Richard Gerber, and officer David Forsicka—assaulted him 
that same morning, fracturing his orbital bone.  Lauria alleges 
that he was then “not given proper medical attention, and [was] 
unlawfully put in a restraint chair for 11 hours.”  AA37. 
 
 
4 
 
Appellees contend that their use of force was justified, 
since Lauria “threw [playing] cards at Officer Lieb” and 
“moved toward” him.  AB002.  Appellees also contend that 
Lauria was “seen by medical personnel” shortly after the use 
of force and that he was placed in a restraint chair for “4.5 
hours,” not the 11 hours claimed by Lauria.  AB003–04. 
 
Lauria filed his original complaint against Appellees on 
March 22, 2022.  In this complaint, Lauria alleged that he filed 
a grievance after the purported assault but “never got a reply.”  
AA23.  An identical allegation appears in Lauria’s amended 
complaint, filed on May 2, 2023. 
   
On March 10, 2023, at the start of discovery, Lauria 
filed his first petition to appoint counsel, wherein he alleged 
that he does not “speak the Legal Jargin [sic]” and was having 
trouble “obtain[ing] certain information,” including his 
medical records.  AA28.  The District Court denied this 
petition on March 23, 2023, finding that neither “the difficulty 
of the legal issues involved” in the case nor Lauria’s 
“[in]ability to present his case” justified appointment of 
counsel.  AA30. 
 
After discovery, both Lauria and Appellees moved for 
summary judgment.  Appellees argued that summary judgment 
should be granted in their favor because Lauria failed to 
exhaust his administrative remedies.  In support, they 
submitted a declaration from Deputy Warden Blythe Toma, 
who swore that: (1) inmate grievances are “scanned into 
OnBase, a searchable computer database” when submitted; and 
(2) Toma had searched OnBase and found no grievances filed 
by Lauria between March 18, 2021 and May 20, 2021.  AB036. 
 
 
5 
 
In his opposition to Appellees’ motion for summary 
judgment, Lauria reiterated his claim that he submitted a 
grievance shortly after the 2021 alleged assault.  Lauria alleged 
that he “put the [g]rievance in the door slot,” after which “c/os 
were responsible for putting the [g]rievance in ‘[t]he 
[g]rievance [b]ox.’”  AA42.  Lauria alleged that he “couldn[’]t 
physically put it in the [g]rievance box because [he] was in 
segregated housing” and “could only put all paperwork in the 
door slot.”  AA45. 
 
On October 31, 2023, Lauria filed a second petition to 
appoint counsel, once again on the basis that he does not “speak 
Legal Jargin [sic].”  AA46.  The District Court again denied 
this motion, finding that “there is nothing that Plaintiff is 
required to do in the prosecution of his claims” because fact 
discovery was completed and the parties’ motions for summary 
judgment were fully briefed.  AA49. 
 
On February 6, 2024, the District Court granted 
summary judgment in favor of Appellees.  The District Court 
found “no evidence that Plaintiff exhausted available 
administrative remedies”; though Lauria alleged he had 
submitted a grievance in his original complaint, amended 
complaint, and opposition brief, these submissions were “not 
made under penalty of perjury pursuant to 28 U.S.C.A. § 1746 
and therefore may not be considered by the Court.”  AA13–14.  
The District Court therefore granted summary judgment “in 
favor of all Defendants as to all claims asserted by Plaintiff.”  
AA15.  Lauria appealed. 
 
 
6 
II. Discussion1 
 
A. Consideration of Unsworn Allegations 
 
In granting summary judgment, the District Court relied 
in large part on our holding in Doe.  As the District Court 
described it, Doe “clearly stated that ‘while an unsworn 
statement may be considered on summary judgment, an 
unsworn statement that has not been made under penalty of 
perjury cannot.’”  AA14 (quoting Doe, 923 F.3d at 315).  The 
District Court concluded that Doe required it to entirely 
disregard any unsworn statements when evaluating the parties’ 
summary judgment motions: it found that it “cannot consider 
the unsworn statements related to exhaustion as part of its 
summary judgment analysis.”  AA15. 
 
This articulation of our ruling in Doe improperly 
expands the scope of our holding in a small yet significant way.  
In Doe, we held that statements that are “both unsworn and not 
given under the penalty of perjury” are “insufficient to create 
an issue of fact on summary judgment.”  Doe, 923 F.3d at 315.  
This much is plainly true, and nothing in our holding today 
disturbs that rule.  But our holding in Doe does not compel 
 
1 We have jurisdiction under 28 U.S.C. § 1291.  We review 
the District Court’s summary judgment decision “anew,” 
“applying the same standard [the District Court] must apply.”  
Huber v. Simon’s Agency, Inc., 84 F.4th 132, 144 (3d Cir. 
2023) (internal quotation marks omitted).  The District Court 
was tasked with “grant[ing] summary judgment if the movant 
shows that 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). 
 
 
7 
courts to completely disregard unsworn statements when 
assessing the propriety of summary judgment: such statements 
may inform a court’s decision pursuant to Federal Rule of Civil 
Procedure 56(e) to issue appropriate orders when “a party fails 
to properly support an assertion of fact.”  Fed. R. Civ. P. 56(e).  
Courts possess discretion to allow litigants to address errors in 
their summary judgment materials, including by allowing 
additional time for the resubmission of unsworn allegations in 
supplemental affidavits.  See Gordon v. Watson, 622 F.2d 120, 
123 (5th Cir. 1980) (“[D]istrict court[s] ha[ve] ample 
discretion to call upon the parties to remedy the defects [in 
summary judgment materials], by submitting supplemental 
affidavits or otherwise.”); Nick’s Garage, Inc. v. Progressive 
Cas. Ins. Co., 875 F.3d 107, 116 n.4 (2d Cir. 2017); Jaxon v. 
Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985).  In 
determining whether to exercise this discretion, courts are 
permitted to consider the totality of the allegations made, both 
sworn and unsworn. 
 
Here, the District Court could not have considered 
Lauria’s unsworn allegations when determining whether 
genuine disputes remained as to any material fact.  But it 
remained entitled to consider Lauria’s unsworn allegations as 
a potential reason to delay its summary judgment ruling and 
grant Lauria “an opportunity to properly support” his 
allegations or “issue any other appropriate order” pursuant to 
Rule 56(e).  Fed. R. Civ. P. 56(e)(1), (4).  Given that Lauria’s 
failure to submit an appropriate affidavit appeared to be the 
product of a pro se litigant’s ignorance of procedural rules—
and had not been objected to by Appellees in their summary 
judgment briefing—the District Court may well have exercised 
 
 
8 
its discretion in this way had it not erroneously concluded that 
Doe barred it from doing so.2 
 
B. Harmless Error 
 
Appellees contend that even if the District Court erred 
in its summary judgment ruling, that error was harmless 
because Lauria’s exhaustion allegations were “defeat[ed]” by 
his failure to produce a “pink copy” of his grievance—a copy 
of the form meant to be retained by a prisoner—as “evidence 
that he submitted” one.  Appellees’ Br. at 15. 
 
 
2 Much of the parties’ briefing is dedicated to the separate 
issue of whether the District Court erred in not providing 
affirmative notice of the procedural rules of summary 
judgment to Lauria.  Most circuits have adopted some version 
of the notice requirement Lauria seeks: the Second, Fourth, 
Sixth, Seventh, Ninth, Eleventh, and D.C. Circuits have each 
recognized a notice requirement for pro se incarcerated 
litigants facing summary judgment.  See generally Irby v. 
New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001); 
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975); United 
States v. Ninety Three Firearms, 330 F.3d 414 (6th Cir. 
2003); Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982); Rand 
v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc); Brown v. 
Shinbaum, 828 F.2d 707 (11th Cir. 1987); Hudson v. Hardy, 
412 F.2d 1091 (D.C. Cir. 1968).  Others, namely the Fifth and 
Eighth Circuits, have rejected such a rule.  See Martin v. 
Harrison Cnty. Jail, 975 F.2d 192, 193 (5th Cir. 1992); Beck 
v. Skon, 253 F.3d 330, 333 (8th Cir. 2001).  Because we 
conclude that the District Court erred in its application of 
Doe, we do not reach this issue. 
 
 
9 
Appellees’ argument is unavailing.  “In considering a 
motion for summary judgment, a district court may not make 
credibility determinations or engage in any weighing of the 
evidence.”  Marino v. Indus. Crating Co., 358 F.3d 241, 247 
(3d Cir. 2004).  Even “a single, non-conclusory affidavit . . . 
when based on personal knowledge and directed at a material 
issue, is sufficient to defeat summary judgment.”  Lupyan v. 
Corinthian Colleges Inc., 761 F.3d 314, 320 (3d Cir. 2014).  
Lauria could have carried this burden even without a pink copy 
of his grievance form by submitting an affidavit or sworn 
pleading alleging that he had submitted a grievance form.  See, 
e.g., Paladino v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) 
(finding a plaintiff had adequately alleged exhaustion through 
“sworn deposition testimony”).  Accordingly, the District 
Court’s error was not harmless.  
 
III.  Conclusion 
 
For the reasons set forth above, we will vacate the 
District Court’s order granting summary judgment and remand 
for further consideration consistent with this opinion. 


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