HARDIMAN, Circuit Judge.
In this appeal we consider whether a prisoner who has been denied in forma pauperis status because he has "three strikes" under 28 U.S.C. § 1915(g) is precluded from obtaining counsel pursuant to § 1915(e)(1). We hold that he is.
Bob Brightwell was sentenced to life in prison for a robbery and murder he committed in 1975. Since 1977, Brightwell has been housed in various Pennsylvania State Correctional Institutions (SCIs), including SCI-Somerset from May 2003 through January 2004, SCI-Mahanoy from May 2004 through November 2006, and SCI-Houtzdale, where he currently resides.
Brightwell claims to suffer from serious medical conditions and has long maintained that prison officials have been deliberately indifferent to his medical needs. His allegedly unattended—to conditions include: diabetes, a skin condition called keratosis pilaris, extreme liver and kidney pain, blurred vision, and severe "imploding-type" migraines caused by "a capsule" mistakenly left in his right eye during a botched cataract surgery in 1999.
Brightwell also claims that on May 7, 2004, he suffered from diabetic shock and that a physician's assistant who was in the room at the time failed to assist him. The next day, Brightwell filed a grievance alleging "unethical conduct by a member of [the staff]." Three weeks later, a prison administrator signed a misconduct report charging Brightwell with lying about the incident. The misconduct charge was later dismissed without any sanction against Brightwell.
On September 16, 2004, Brightwell filed an amended complaint against a number of prison officials and employees alleging: (1) breach of contract, (2) a due process violation relating to his prior placement in administrative custody, (3) violations of the International Covenant on Civil and Political Rights and the Convention Against Torture, (4) a violation of his First Amendment rights in the form of a retaliatory misconduct report levied against him for filing a grievance following the May 2004 diabetic shock incident, and (5) violations of 42 U.S.C. § 1983 and the Eighth Amendment for deliberate indifference to his serious medical needs.
While his case was pending, Brightwell filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 and three motions for the appointment of counsel under § 1915(e)(1). On March 23, 2004, Magistrate Judge Ila Jeanne Sensenich entered orders denying Brightwell's motion for leave to proceed in forma pauperis and his first motion for the appointment of counsel. The latter order was a handwritten notation at the top of the motion which stated: "Motion denied for reasons given in report and recommendation dated 10/30/2003."
The October 30, 2003 Report and Recommendation to which Magistrate Judge Sensenich made reference explained that Brightwell was ineligible for in forma pauperis
On May 3, 2006, Brightwell filed another motion requesting counsel. This motion was denied by Magistrate Judge Lisa Pupo Lenihan, who emphasized two considerations: (1) the scarcity of pro bono counsel and (2) her willingness to revisit the issue if the case proceeded to trial. Brightwell appealed the decision to deny him counsel, but United States District Judge Kim R. Gibson affirmed Magistrate Judge Lenihan's order. On October 26, 2006, Brightwell again moved for the appointment of counsel, and Magistrate Judge Lenihan denied the motion for the same reasons articulated in her previous denial.
On November 30, 2006, Defendants filed a motion for summary judgment. Magistrate Judge Lenihan issued a Report and Recommendation finding in Defendants' favor, and on August 29, 2007, Judge Gibson adopted the Report and Recommendation, granting summary judgment. Brightwell filed this timely appeal.
Brightwell presents three claims of error for our consideration. First, he contends the District Court erred in denying his motions for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Second, he argues that the District Court should not have ruled on the motions for summary judgment because he was given inadequate notice and opportunity to reply. Finally, he maintains that disputed issues of material fact precluded summary judgment. We address each of these arguments in turn.
Ordinarily, we review the District Court's denial of an inmate's request for appointment of counsel for abuse of discretion. Tabron v. Grace, 6 F.3d 147, 155 n. 3, 158 (3d Cir.1993). In this case, however, whether Brightwell's "three strikes" statutorily preclude him from obtaining counsel pursuant to § 1915(e)(1) is a purely legal question, so our review is plenary. See United States v. Hull, 456 F.3d 133, 137 (3d Cir.2006). We may affirm a district court for any reason supported by the record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir.2005) (citing United States v. Jasin, 280 F.3d 355, 362 (3d Cir.), cert. denied 537 U.S. 947, 123 S.Ct. 410, 154 L.Ed.2d 290 (2002)).
Brightwell requested counsel pursuant to 28 U.S.C. § 1915 ("Proceeding In Forma Pauperis"), which not only enables indigent litigants to bring lawsuits without paying filing fees, but also allows for representation by pro bono counsel "requested" by the court.
In this case, Magistrate Judge Sensenich denied Brightwell's motion for leave to proceed in forma pauperis pursuant to the "three strikes" rule of § 1915(g), which states:
§ 1915(g). The plain text of subsection (g) indicates that, in the absence of imminent danger of serious physical injury, a litigant with a history of filing frivolous, malicious, or patently unmeritorious claims cannot "bring a civil action . . . under this section," which refers to § 1915. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60-61, 125 S.Ct. 460, 160 L.Ed.2d 389 (2004) (explaining how legislation is divided with each "section" containing sub-sections, paragraphs, subparagraphs, and clauses). Because Brightwell was barred from proceeding under § 1915, he was not entitled to any of the benefits that accrue to one who proceeds in forma pauperis. Accordingly, we hold that Brightwell was statutorily precluded from obtaining counsel pursuant to § 1915(e)(1).
Our holding comports with the "principal purpose" of the Prison Litigation Reform Act (PLRA), which was to "`deter[ ] frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims.'" Hernandez v. Kalinowski, 146 F.3d 196, 200 (3d Cir.1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997)); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.2001) ("In enacting the PLRA, Congress concluded that the large number of meritless prisoner claims was caused by the fact that prisoners easily obtained I.F.P. status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants." (citations omitted)). Allowing a litigant who was denied in forma pauperis status pursuant to § 1915(g) to obtain counsel under § 1915(e)(1) would thus contradict both the text of § 1915 and the principal purpose of the PLRA.
In light of Brightwell's ineligibility for the appointment of counsel under § 1915, it was unnecessary for the District Court to analyze the Tabron factors. Nevertheless, it did not abuse its discretion by denying Brightwell's motions for the appointment of counsel.
Having decided that Brightwell was precluded from obtaining counsel as an in forma pauperis litigant, we turn to his claims that the District Court committed procedural and substantive errors when it entered summary judgment against him.
We begin by considering whether Brightwell received adequate notice and an opportunity to respond to Appellees' motions for summary judgment. Because Brightwell raised this issue in his first challenge to summary judgment, we review de novo the District Court's implicit finding that procedural requirements were met. See Love v. Nat'l Med. Enters., 230 F.3d 765, 771 (5th Cir.2000) (noting that the standard of review is plain error only when the challenging party fails to raise the procedural argument in an earlier Rule 59(e) motion for reconsideration).
Although "[a] district court may not enter summary judgment against a party without affording that party notice and an opportunity to respond," Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 n. 3 (3d Cir.2001), a court can cure defective service by exercising its "discretion to extend any applicable response period pertaining to the served paper," Russell v. City of Milwaukee, 338 F.3d 662, 667 (7th Cir.2003) (quoting 1 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 5.04[2][a][ii] at 5-29 to 5-30 (3d ed.)).
Even accepting as true Brightwell's claim that mail delivery was unreliable around the time of his transfer from SCI-Mahanoy to SCI-Houtzdale, the District Court nevertheless gave him a full and fair opportunity to respond when it granted two extensions of time to file responsive pleadings and ordered that all summary judgment-related filings be resent to SCI-Houtzdale. Because Brightwell does not claim that he failed to receive the District Court's shipment of documents, he was not deprived of a full and fair opportunity to respond to the summary judgment motions. Accordingly, the District Court committed no procedural error.
We turn next to the merits of the District Court's summary judgment. Because Brightwell failed to object to the Report and Recommendation—which explicitly stated that failure to object "may constitute a waiver of any appellate rights"—we review the District Court's grant of summary judgment for plain error.
As to his claim of "cruel and unusual punishment," Brightwell failed to present any evidence that Appellees denied him medical care or "acted "with deliberate indifference to his . . . serious medical needs.'" Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.2002) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Given the record, no jury could find that Brightwell's diet or cell temperature were "serious medical needs" or that he had anything" lodged in his right eye.
Brightwell's First Amendment claim fares no better. To establish a claim for retaliation contrary to the First Amendment, a plaintiff must show: (1) he engaged in constitutionally protected conduct, (2) he was subjected to adverse actions by a state actor, and (3) the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); see also Anderson v. Davila, 125 F.3d 148, 163 (3d Cir.1997). We agree with Appellees that the alleged retaliation in this case—a "misconduct" charging Brightwell with filing a false report that was dismissed—does not rise to the level of "adverse action" because it would not be "sufficient `to 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)); cf. Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir.2009) ("A single retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action." (citation omitted)).
In sum, Brightwell failed to proffer sufficient evidence to allow a reasonable jury
Because the District Court did not err when it denied Brightwell's request for counsel or when it entered summary judgment against him, we will affirm the judgment of the District Court.