DLD-046 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3681
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SHAWN T. WALKER,
Appellant
v.
SHANDA MATHIS; KERRY KERSCHNER;
CYNTHIA LINK; DORINA VARNER
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 15-cv-05134)
District Judge Gene E. K. Pratter
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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 17, 2016
Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed: December 6, 2016 )
_________
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.
Shawn T. Walker appeals the District Court’s dismissal of his complaint. We will
summarily affirm.
In September 2015, Walker, a prisoner confined at SCI-Graterford, filed a
complaint pursuant to 42 U.S.C. § 1983 in the Eastern District of Pennsylvania, alleging
retaliation and failure to take action regarding a grievance and appeals he had filed
concerning a false misconduct report. Amongst the relief sought, Walker requested a
declaratory judgment that the prison grievance policy is unconstitutional or, in the
alternative, that the defendants’ interpretation of the policy is unconstitutional, and a writ
of mandamus directing the prison to allow him to file his allegedly ignored grievance.
Walker named as defendants Shanda Mathis, a corrections food services instructor who
supervised Walker at his job in the SCI-Graterford prison kitchen; SCI-Graterford
Superintendent Cythina Link; Link’s assistant, Major Kerry Kerschner; and Chief
Grievance Officer Dorina Varner.
Walker alleges that he and Mathis engaged in a verbal altercation on July 26,
2015, following which Walker complained to Mathis’ supervisor. Later that day, Mathis
issued Walker a misconduct report for refusing to obey a work order and for being in an
unauthorized area. According to Walker, Mathis did so in retaliation for Walker’s
reporting her to her supervisor. Walker alleges that as a result of the misconduct report,
he was suspended from his job until the outcome of the hearing. Ultimately, Walker’s
suspension from his work assignment only lasted two days, at which point the hearing
2
examiner dismissed the misconduct report. Walker pursued a grievance against Mathis
through the prison system, which was ultimately unsuccessful.
In October 2015, defendants filed a motion to dismiss for failure to state a claim.
Thereafter, Walker filed a motion for appointment of counsel and an amended complaint.
Defendants subsequently filed a motion to dismiss Walker’s amended complaint. In May
2016, Walker filed a motion for leave to file a second amended complaint. By order and
opinion entered on May 19, 2016, the District Court denied Walker’s motion for
appointment of counsel, granted defendant’s motion to dismiss Walker’s amended
complaint, denied Walker’s motion for leave to file a second amended complaint, and
denied Walker’s motion for extension of time to cure defects in his motion to file a
second amended complaint without prejudice. However, the District Court allowed
Walker to refile his motion within thirty days, which he did. By order entered on
September 13, 2016, the District Court denied Walker’s motion to file a second amended
complaint and dismissed his case with prejudice.
Walker appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because
Walker has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we
review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We
may summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks
substantial merit.
I.
3
We exercise plenary review of the District Court's order dismissing Walker’s
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See
Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). In
reviewing the dismissal under Rule 12(b)(6), “we accept all factual allegations as true
[and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen.
Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A court may grant a motion to dismiss under
Rule 12(b)(6) “only if, accepting all well-pleaded allegations in the complaint as true and
viewing them in the light most favorable to the plaintiff, [it] finds that [the] plaintiff's
claims lack facial plausibility.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–56 (2007)). Pro se pleadings, “however inartfully pleaded,” must be held to “less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520 (1972). However, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d
Cir. 2013).
All of Walker’s claims arise from his verbal altercation with Mathis and the
allegedly retaliatory misconduct report she filed. To establish a claim of retaliation, a
prisoner must show: (1) that he was engaged in a constitutionally protected activity; (2)
that he “suffered some ‘adverse action’ at the hands of the prison officials”; and (3) that
the protected activity was “a substantial or motivating factor” in the prison officials’
decision to take the adverse action. Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001).
4
The burden then shifts to the prison officials to prove “that they would have made the
same decision absent the protected conduct for reasons reasonably related to a legitimate
penological interest.” Id. at 334.
Here, with regard to the second factor,1 we agree with the District Court’s
conclusion that Mathis’ alleged conduct was not sufficiently serious to “deter a person of
ordinary firmness from exercising his [constitutional] rights.” Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003) (alteration in original) (quoting Rauser, 241 F.3d at 333). The
misconduct report filed by Mathis was dismissed two days after it was filed and resulted
in no punishment. The only adverse action allegedly taken against Walker as a result of
the misconduct charge was his temporary removal from his work assignment and two
days of lost prison wages. This single, temporary inconvenience does not meet the
standard. See Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (charging prisoner
with misconduct report that was later dismissed for filing a false grievance does not rise
to the level of “adverse” action for purposes of retaliation claim); see also 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.”).
II.
1
The defendants did not challenge the first or third factors, and the District Court
properly noted that Walker had adequately addressed these factors.
5
We likewise conclude that the two-day suspension from employment fails to rise
to the level of an Eighth Amendment violation. Walker alleges that Mathis’ naming him
in a false misconduct report constituted cruel and unusual punishment. The Eighth
Amendment imposes duties on prison officials to “provide humane conditions of
confinement” and “ensure that inmates receive adequate food, clothing, shelter, and
medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks
and citation omitted). However, where conditions are not “cruel and unusual” but merely
“restrictive and even harsh,” they do not violate the Eighth Amendment but rather “are
part of the penalty that criminal offenders pay for their offenses against society.” Rhodes
v. Chapman, 452 U.S. 337, 347 (1981). We agree with the District Court’s
determination that neither the two-day suspension nor the lost wages rise to the level of a
deprivation of basic human needs, such as food, clothing, and shelter and, therefore, fail
to meet the standard for cruel and unusual punishment.
III.
Walker’s due process claim against all defendants for denying the grievance he
attempted to file following his interaction with Mathis and her subsequent misconduct
report fares no better, as Walker does not have a constitutional claim based on the
temporary loss of his prison job. We have held that there is no liberty interest in a prison
job arising from the Due Process Clause. See James v. Quinlan, 866 F.2d 627, 629 (3d
Cir. 1989). Walker cannot show that he was deprived of any state-created liberty interest
because the temporary two-day job suspension and resulting loss of wages does not
6
impose “atypical and significant hardship . . . in relation to the ordinary incidents of
prison life.” Torres v. Fauver, 292 F.3d 141, 151 (3d Cir. 2002) (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)). Absent a constitutionally protected interest,
Walker’s due process claim must fail.2
Walker further alleges that his grievance was improperly denied by Kerschner
because it was over the two-page policy limit. Walker then filed an appeal, which was
subsequently denied by Link. Finally, Walker appealed to the Office for Inmate
Grievances and Appeals, where his second appeal was denied by Varner. Regarding
defendants Kerschner, Link, and Varner, Walker has failed to allege that their
involvement in this matter extended beyond their denial of his grievance and subsequent
appeal. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“A[n individual
government] defendant in a civil rights action must have personal involvement in the
alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat
superior.” (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988))).3 As to
2
Walker’s claims for declaratory and injunctive relief regarding the prison’s inmate
grievance system must also fail as they likewise do not give rise to a § 1983 claim.
3
Unlike Mathis, Kerschner, and Varner, who were sued only in their individual
capacities, Link was sued in both her official and individual capacities. We agree with
the District Court’s analysis and conclude that the claims against Link in her official
capacity were properly dismissed under the doctrine of sovereign immunity. The
Eleventh Amendment bars suits in federal court by private parties against states, state
agencies, and state officials in their official capacities, absent consent by the state. Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997). While a state may lose its
immunity by Congressional abrogation or by waiver, see Lavia v. Pa. Dep’t of Corr., 224
F.3d 190, 195 (3d Cir. 2000), Congress did not abrogate states’ sovereign immunity when
7
Mathis, Walker has failed to provide any allegations identifying how her conduct caused
him to suffer a violation of his due process rights.4 Accordingly, the District Court
properly dismissed Walker’s due process claims against all defendants.5
IV.
For the forgoing reasons, we conclude that there is no substantial question
presented by this appeal, and will thus summarily affirm the District Court’s dismissal of
Walker’s complaint. Walker’s motion for appointment of counsel is denied.
it enacted 42 U.S.C. § 1983, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66
(1989). Moreover, we have previously noted that the Pennsylvania legislature has
expressly declined to waive its sovereign immunity by statute. See Lavia, 224 F.3d at
195; see also 42 Pa. Cons. Stat. Ann. § 8521(b).
4
We agree with the reasoning of the District Court that to the extent Walker is asserting
that Mathis is liable on the basis of the same conduct identified in his First and Eighth
Amendment claims, this claim fails for the reasons provided in the discussion of those
claims.
5
The District Court appropriately denied Walker’s request for a writ of mandamus, see,
e.g., In re Wolenski, 324 F.2d 309, 309 (3d Cir. 1963) (per curiam) (holding district court
had no jurisdiction to issue writ of mandamus compelling action by state official); motion
to file second amended complaint, see, e.g., Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000) (holding “amendment is futile if the amended complaint would not survive a
motion to dismiss for failure to state a claim upon which relief could be granted”); and
motion for appointment of counsel, see, e.g., Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993) (noting that before court is justified in granting counsel, it must appear that
plaintiff’s claims have some merit).
8