NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4539
___________
CARL T. STEWART, JR.,
a/k/a CARL BURTON,
Appellant
v.
DAVID A. VARANO; DEPUTY SUPERINTENDENT RONDA M. ELLETT;
ROBERT MCMILLAN; UM THOMAS MCQINLEY; C/O EYSTER;
CAPTAIN JEFFREY MADDEN; G. MILLER; LT. W. P. MILLER;
JOHN OR JANE DOE (SIGNING OF REQUEST SLIP DATED 1-9-10);
MS. MCCARTNEY, Health Care Coordinator; L.S. KERNS-BARR;
LINDA CHISMAR, CCPM; MICHAEL CORBACIO, CAM II;
CHARLES CUSTER, UM; ROBERT B. MACINTYRE,
Chief Hearing Examiner; DORINA VARNER,
Chief Grievance Officer; SECRETARY DEPARTMENT OF CORRECTIONS, et al.
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-10-cv-01701)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 26, 2015
Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: February 9, 2015)
___________
OPINION*
___________
PER CURIAM
Pro se litigant Carl Stewart appeals the District Court’s dismissal of his complaint
alleging constitutional violations at the State Correctional Institution at Coal Township
(SCI-Coal Township) in Pennsylvania. For the reasons set forth below, we will affirm
the District Court’s judgment.
On January 1, 2010, Stewart was incarcerated at SCI-Coal Township. He woke up
around 2:00 a.m. and headed toward the bathroom to urinate. Corrections Officer Eyster
stopped him, saying that he would have to wait until after the 2:00 inmate count was
completed to use the bathroom. Stewart informed Eyster that he took a medication that
caused him to urinate frequently, and that he needed to urinate immediately. Eyster
repeated that he would have to wait until after the count and ordered him to return to his
bunk. Stewart complied but threatened to file a grievance against Eyster. The count
lasted 15 to 20 minutes, during which time Stewart urinated on himself and in a “squeeze
cheese bottle.” Afterward, Eyster issued Stewart a misconduct for refusing to obey an
order and for presence in an unauthorized area.1 The hearing examiner upheld these
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
A disciplinary hearing report submitted by Stewart as an exhibit to his complaint
clarifies the origins of these charges. Eyster said that he ordered Stewart to return to his
bunk several times before he complied, which was the source of the refusal-to-obey
charge. Similarly, Eyster explained that once Stewart was ordered to return to his bunk
2
charges, and Stewart was sentenced to 30 days of cell restriction. The misconduct also
disqualified him from a pre-release program in which he had been slated to participate.
Stewart’s administrative appeals were denied.
Stewart filed this complaint pursuant to 42 U.S.C. § 1983 on July 30, 2010,
alleging violations of his First, Eighth, and Fourteenth Amendment rights. He named
Eyster and numerous other prison employees as defendants. The Defendants moved
under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint, and the
Magistrate Judge recommended granting that motion. The District Court agreed and
dismissed the complaint with prejudice. Stewart filed a timely notice of appeal.2 We
have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review. See
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
First, Stewart argued that the disciplinary proceedings surrounding the misconduct
violated his due process rights. The District Court reasoned that this argument was
barred by the Heck doctrine, which prohibits a prisoner from using a civil suit to attack
the validity or length of his confinement without first demonstrating that his conviction or
sentence has been otherwise invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994);
see also Edwards v. Balisok, 520 U.S. 641 (1997). As Stewart rightly contended in his
and refused to do so, he was in an unauthorized area.
2
Stewart’s notice of appeal was timely pursuant to the District Court’s award of Federal
Rule of Appellate Procedure 4(a)(5) relief.
3
brief before this Court, the Heck doctrine is inapplicable because Stewart did not question
the validity or length of his confinement in this complaint. Nonetheless, his due process
argument fails because it does not implicate a liberty interest; thirty days of cell
restriction and disqualification from a pre-release program do not represent the “atypical
and significant hardship on [an] inmate in relation to the ordinary incidents of prison life”
that is necessary to state a due process claim in this context. Sandin v. Conner, 515 U.S.
472, 484 (1995); see also Asquith v. Dep’t of Corr., 186 F.3d 407, 412 (3d Cir. 1999)
(removal from community release program did not implicate a protected liberty interest
under Sandin).
Next, Stewart claimed that Eyster’s refusal to grant him access to the bathroom
during count time represented an unconstitutional deprivation of life’s basic necessities,
thereby violating the Eighth Amendment. To successfully state such a claim, a plaintiff
must allege that the prison condition in question — here, a brief lack of toilet access —
was sufficiently serious. See Young v. Quinlan, 960 F.2d 351, 359-60 (3d Cir. 1992).
Stewart’s complaint does not meet this standard, and his reliance on our decision in
Young only serves to highlight the inadequacy. In Young, the plaintiff was housed in a
cell without a toilet for four days; allowed to leave his cell only once to urinate or
defecate; not provided with toilet paper or permitted to wash his hands before eating,
despite suffering bouts of diarrhea; not provided water to drink but instead told to drink
his own urine; and threatened to be chained to a steel slab if he complained. These
4
allegations, we held, were objectively serious enough to rise to the level of a
constitutional violation. See id. at 365. The fact that Stewart had to wait 15 minutes to
access a toilet does not. See Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004)
(momentary deprivation of right to use the bathroom did not offend the Constitution); see
also Knop v. Johnson, 977 F.2d 996, 1013 (6th Cir. 1992) (housing inmates in cells
without toilets did not violate Eighth Amendment).3
To the extent Stewart argued that Appellees violated the Eighth Amendment by
demonstrating deliberate indifference to his serious medical need, this too fails. The
temporary, everyday need to urinate does not constitute a “serious medical need” in this
context. Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987) (a serious medical need is “one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity
for a doctor’s attention”). Moreover, Stewart has not sufficiently stated the subjective
component of an Eighth Amendment claim: that the prison official acted with deliberate
indifference to the wanton infliction of pain. See Estelle v. Gamble, 429 U.S. 97, 105-06
3
The relevant cases that Stewart cited to argue the contrary are inapposite, because,
among other critical differences, they involved deprivations of toilet access over much
longer periods of time. See, e.g., Hope v. Pelzer, 536 U.S. 730, 734-746 (2002) (inmate
who was handcuffed to hitching post and made to stand shirtless in the sun for seven
hours while deprived of any water or a toilet, could demonstrate Eighth Amendment
violation); Palmer v. Johnson, 193 F.3d 346, 352-54 (5th Cir. 1999) (inmate required to
“sleep-out” for seventeen hours with forty-eight other inmates, and forced to openly
urinate and defecate in an area measuring twenty feet by thirty feet, stated Eighth
Amendment claim).
5
(1994); Farmer v. Brennan, 511 U.S. 825, 834 (1994). There is no indication here that
requiring Stewart to wait 15 minutes to use a bathroom, in accordance with the facility’s
standard procedures for inmate counts, demonstrated deliberate indifference on the part
of either Appellee to an “unnecessary and wanton infliction of pain” or the like. See id.
Stewart’s argument that this incident violated the Equal Protection Clause is
similarly meritless, because, among other deficiencies, his complaint did not describe in
any detail other inmates who were permitted to use the bathroom during the count while
he was not.4 See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 424 (3d Cir.
2000) (“Where there is no discrimination, there is no equal protection violation.”).
Similarly, he has not alleged any intentionally different treatment that was so
exceptionally arbitrary that it could state a “class of one” equal protection claim. See
Eichenlaub v. Township of Indiana, 385 F.3d 274, 286 (3d Cir. 2004).
Lastly, Stewart argued that Eyster issued the misconduct in retaliation for
Stewart’s threat to file a grievance against him, thereby violating the First Amendment.
4
Indeed, the exhibits attached to the complaint indicate that as a matter of policy,
bathrooms are routinely cleared before counts are conducted. Presumably that is why
Stewart was not permitted to use the bathroom at the time in question. In his complaint,
Stewart makes clear that he saw inmates exiting the bathroom when he tried to enter it,
and that they did so in the company of (and likely at the behest of) a Corrections Officer.
“[A]s I was arriving [at the bathroom,] Defendant C/O Eyster asked where I was going[.]
I stated I have to use the bathroom real bad[,] I take a water pill for my blood pressure
medication[,] it’ll be real quick. He stated I will have to wait until after count. [T]hat’s
when about 5 or 6 inmates came out of the bathroom along with C/O Crispell.”
[Emphasis added.]
6
To state a claim for retaliation, Stewart must allege facts sufficient to prove (1) that he
was engaged in constitutionally protected conduct; (2) that he suffered an adverse action
at the hands of prison officials, sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) that his protected activity was a motivating
factor in the adverse action taken against him. See Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir. 2003). Filing a grievance can be constitutionally protected conduct. See id. The
District Court concluded that Stewart had not engaged in such conduct here, because he
had not actually filed a grievance when Eyster issued the misconduct; he had merely
threatened to do so. But that is in fact Stewart’s allegation — that he was retaliated
against for speaking, which did take place at the relevant moment. In any event, we
conclude that under the circumstances presented here — where the complaint itself
indicated that the misconduct finding alleged to be retaliatory rested on a sufficient
evidentiary basis (see supra n.1) — Stewart’s allegation did not state a viable claim under
Rule 12(b)(6). See Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (concluding
that a misconduct based on “some evidence” of violation essentially “checkmated”
litigant’s retaliation claim); see also Farver v. Schwartz, 255 F.3d 473, 474 (8th Cir.
2001) (claim of retaliation based on issuance of misconduct was properly dismissed
under Rule 12(b)(6) because the misconduct was supported by some evidence of
violation).
7
We are satisfied that leave to amend this complaint would have been futile. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Accordingly, we
will affirm the judgment of the District Court.
8