Edward Semulka v. Kenny Moschell , 401 F. App'x 628 ( 2010 )

CLD-035 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3259
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EDWARD SEMULKA,
Appellant
v.
KENNY P. MOSCHELL; SHARON M. MOSCHELL;
JOHN DOE; JAN DOE;
CANONSBURG OFFICER CARL FETCHKO;
CANONSBURG BOROUGH;
WASHINGTON COUNTY DISTRICT ATTORNEY’S OFFICE;
WASHINGTON COUNTY CANONSBURG POLICE
____________________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 09-cv-01718)
District Judge: Honorable Sylvia H. Rambo
____________________________________
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
November 12, 2010
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Opinion filed: November 18, 2010)
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OPINION OF THE COURT
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PER CURIAM
Edward Semulka appeals from a District Court order dismissing his pro se
complaint for failure to state a federal cause of action and denying his motion for
appointment of counsel. For the following reasons, we will summarily affirm.
In August 2009, Semulka filed a civil rights complaint against prison officials at
the Federal Correctional Institution at Allenwood, where he had previously served a
prison term. He alleged that prison officials denied medical treatment, gave him
incorrect medication, failed to protect him from physical and mental abuse from fellow
inmates, secretly recorded his private conversations, and denied access to prison
grievance forms and the prison law library. He also filed a motion to have counsel
appointed.
In September 2009, the District Court issued the first of several orders directing
Semulka to amend his complaint. The District Court issued this order because the
complaint did not comply with Federal Rule of Civil Procedure 8. In addition, the
District Court dismissed without prejudice the motion for appointment of counsel
because it was impossible to determine from the pleading whether Semulka had an
arguably meritorious claim. Throughout the course of the litigation, Semulka asked for
several extensions for filing an amended complaint and renewed his motion for the
appointment of counsel. The District Court repeatedly granted the extensions and again
denied without prejudice the motion for counsel. On July 17, 2010, thirteen days before
the last deadline for filing an amended complaint, Semulka filed a document entitled
“Complaint for Temporary Restraining Order[,] Preliminary and Permanent Injunctive
Relief, [and] Declaratory Relief.” In this document, Semulka asserted claims against his
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neighbors for nuisance and cruelty to animals. Although the caption listed other
defendants, the complaint identified causes of action against only the neighbors.
Semulka made no mention of any of the defendants or causes of action related to his
period of incarceration. The District Court interpreted the filing as an amended
complaint and dismissed it for failure to state a federal cause of action.
The standard of review for a dismissal for lack of subject matter jurisdiction is
plenary. See Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). We
review the denial of a motion for appointment of counsel for abuse of discretion. Parham
v. Johnson, 126 F.3d 454, 457 (3d Cir.1997). We may summarily affirm a decision of the
District Court if the appeal does not raise a substantial issue. L.A.R. 27.4; I.O.P. 10.6.
“An amended complaint supersedes the original complaint and renders it of no
legal effect unless the amended complaint specifically refers to and adopts or
incorporates by reference the earlier pleading,” King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994). In the July 17, 2010, document, Semulka did not refer to or adopt the initial
complaint. He did not even raise the same claims or name the same defendants. Thus,
the District Court properly considered only the July 17, 2010, document in dismissing the
complaint. Since neither the nuisance nor cruelty-to-animals claims invokes federal
question jurisdiction, see 28 U.S.C. § 1331, and because there does not appear to be a
basis for diversity jurisdiction, see 28 U.S.C. § 1336, the District Court’s dismissal was
proper.
In determining whether to grant a pro se plaintiff’s motion for appointment of
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counsel, the district court first must determine, as a threshold matter, whether the “claim
has arguable merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
Because it was unclear from the initial complaint whether Semulka’s claims had arguable
merit, the District Court’s denial of the motions was not an abuse of discretion.
Accordingly, we conclude that this appeal presents no substantial question, and we
will affirm the order of the District Court.
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