NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3222
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DANIEL WATLINGTON, on behalf of FCI Schuylkill African American Inmates
v.
J. REIGEL, SOE Department Head; J. MIKA, Literacy 103; COUNSELOR A1
GINGER, RDAP a/k/a/ Ms. G; WARDEN PERDUE
Daniel Watlington,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-15-cv-02120)
District Judge: Honorable Yvette Kane
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 17, 2018
Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges
(Opinion filed: January 22, 2018)
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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.
Pro se appellant Daniel Watlington, a federal prisoner who was incarcerated at
FCI-Schuylkill when the relevant events occurred, appeals from the District Court’s order
dismissing his amended in forma pauperis complaint sua sponte for failure to state a
claim on which relief may be granted under 28 U.S.C. § 1915(e). For the following
reasons, we will affirm.
Watlington filed his initial complaint in November 2015. He sued several Bureau
of Prisons employees (“Prison Defendants”) for events stemming from an incident report
he received on July 22, 2015. He brought a First Amendment retaliation claim and an
equal protection claim under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), as well as a civil conspiracy claim. The
District Court, in a 15-page opinion, dismissed the complaint for failure to state claim but
permitted leave to amend.
In his amended complaint, Watlington re-filed his claims against the Prison
Defendants. He alleged that, on July 22, 2015, while he was at the prison law library,
prison officials searched his cell, discovered the legal materials of another inmate, issued
him an incident report for possessing prohibited material, and placed him in the Special
Housing Unit (“SHU”) for an unspecified period of time. He alleged that he was issued
the incident report and placed in the SHU because he is African American and in
retaliation for providing legal assistance to other inmates, and that the Prison Defendants
conspired with one another to prevent him from assisting other inmates with their legal
work.
2
The District Court dismissed Watlington’s amended complaint sua sponte for
failure to state a claim on which relief may be granted under 28 U.S.C. § 1915(e). The
District Court explained that he still failed to state a claim for the reasons provided in the
earlier order. This appeal followed.1 Watlington argues that the District Court
incorrectly concluded that his amended complaint failed to cure the defects identified in
his initial complaint.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise plenary
review over the District Court’s sua sponte dismissal of Watlington’s amended
complaint. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To survive
dismissal for failure to state a claim, a complaint need only contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
As an initial matter, the District Court correctly dismissed any claims brought
against the Warden of FCI-Schuylkill for lack of personal involvement. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). And, as the District Court noted, it
1
This appeal was placed on hold pending disposition by this Court of Wisniewski v.
Fisher, et al., C.A. No. 14-4194, which involved the question whether there is a First
Amendment right to provide legal assistance to other inmates. We have since issued our
opinion in Wisniewksi, see Wisniewski v. Fisher, 857 F.3d 152 (3d Cir. 2017), and
Watlington has filed a supplemental brief addressing the import of that opinion in this
appeal. He has also filed a “Motion to remand,” in which he presents arguments that are
substantially similar to those in his supplemental brief.
3
does not appear that Watlington had even intended to bring suit against the Warden;
although he included the Warden in the caption of the amended complaint, he stated
therein that the “Warden [] is the Warehouseman for inmates at FCI Shuylkill and is not a
party to civil complaint.” Am. Compl. ¶ 2.
As to the equal protection claim, in order to state such a claim, Watlington must
allege that he was treated differently from other similarly situated inmates, and that this
different treatment was the result of intentional discrimination based on his membership
in a protected group, in this case his race. See Keenan v. City of Philadelphia, 983 F.2d
459, 465 (3d Cir. 1992). Relevant here, Watlington alleged that one of the defendants
“carried racial overtones against [him] each day,” Am. Compl. ¶ 9, that another defendant
“failed to take adequate precautions in handling the situation at hand and tolerated the
practice of racial profiling in violation of the Equal Protection Clause of the Fourteenth
Amendment,” id., and that another defendant’s “racist views were the same as the other
defendants,” id. ¶10.
But these allegations are not sufficient to state an equal protection claim. In this
regard, there is no connection between the general accusations of “racial profiling” and
“racist views” and the incident of July 22, 2015, when Watlington was issued an incident
report and placed in the SHU for possessing prohibited materials. Moreover, with the
exception of a conclusory allegation that “[he] was treated differently than other
inmate[]s who attended the Law Library,” Am. Compl. ¶ 13, Watlington has not included
allegations from which it can be inferred that similarly situated non-African-American
4
inmates were treated differently. See Keenan, 983 F.2d at 465. For instance, he does not
claim that others were allowed to possess the legal work of their fellow inmates.2
Accordingly, the District Court correctly dismissed the equal protection claim.
The District Court also correctly dismissed Watlington's First Amendment Retaliation claim. In
order to state a First Amendment retaliation claim, Watlington must allege: (1) that the
conduct leading to the alleged retaliation was constitutionally protected; (2) that he
suffered an adverse action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) that his protected conduct was a substantial or
motivating factor in the adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001).
The District Court dismissed the First Amendment retaliation claim on the basis
that, as a matter of law, there is no constitutionally protected right to provide legal
assistance to another inmate. In support of that conclusion, the District Court relied on
Shaw v. Murphy, in which the Supreme Court held that there is no independent First
Amendment right to provide legal assistance to fellow inmates that enhances the
protections that are otherwise available under Turner v. Safley, 482 U.S. 78 (1987). 532
U.S. 223, 228 (2001). Watlington argues that the District Court was wrong in light of our
decision in Wisniewski. However, Wisniewski does not change the outcome here.
2
Watlington does state that “his bag that had legal work in it” was oftentimes searched at
the law library. Am. Compl. ¶ 9. But he brings no claim related to that allegation, and he
only speculates that it was for “some reason.” See id.
5
In Wisniewski, we held that an inmate “plausibly alleged that his conduct in
assisting his assigned inmate prepare a grievance, which was both pursuant to his job
duties and in accordance with prison regulations, was not inconsistent with legitimate
penological interests, and therefore could fall within the limited First Amendment rights
that prisoners retain.” 857 F.3d at 156. As stated above, Watlington alleged that he was
retaliated against for providing legal assistance to other inmates. But, unlike Wisniewski,
he did not allege that he was providing any such assistance pursuant to his job duties in
the prison, let alone that he was assigned to assist a particular prisoner with a particular
grievance; in his amended complaint, he stated simply that he “would be at the Law
Library every day helping other inmate[]s with their [l]egal work,” and that the prison
officials sought to “deter [him] from coming to the Law Library.” Am. Compl. ¶ 8.
Accordingly, we conclude that Watlington’s alleged conduct does not fall within
Wisniewski’s limited exception to the long-standing rule that there is no independent
First Amendment right to provide legal assistance to fellow inmates.3 See Wisniewski,
857 F.3d at 156; Shaw, 532 U.S. at 228. The District Court, therefore, properly
3
It should also be noted that the exception created in Wisniewski, which involved a state
prisoner who brought his First Amendment retaliation claim pursuant to 42 U.S.C. §
1983, may not apply to a Bivens claim against a federal official. See Vanderklok v.
United States, 868 F.3d 189, 199 (3d Cir. 2017) (holding that “Bivens does not afford a
remedy against airport security screeners who allegedly retaliate against a traveler who
exercises First Amendment rights”); see also Reichle v. Howards, 566 U.S. 658, 663 n.4
(2012) (stating that “[w]e have never held that Bivens extends to First Amendment
claims”).
6
dismissed his First Amendment retaliation claim for failure to plead that he was engaged
in constitutionally protected activity.
The District Court was also correct to dismiss the civil conspiracy claim. The
conspiracy claim was premised on the First Amendment retaliation claim, and because
that underlying claim was properly dismissed, the conspiracy claim had to be dismissed
as well. See In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 789 & n.7
(3d Cir. 1999). Further, under the circumstances of this case, the District Court did not
abuse its discretion in dismissing Watlington’s amended complaint without leave to
amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
In short, although Watlington argues that he cured the deficiencies that the District
Court identified in his initial complaint, he still failed to state a claim in his amended
complaint. Accordingly, and for the foregoing reasons, we will affirm the District
Court’s judgment. The motion to remand is denied.
7