BLD-005                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________


                                    No. 13-3229
                                    ___________

                                  KARIM FARUQ,
                                           Appellant

                                          v.

                    MARY MCCOLLUM, Case Manager, F.C.I. Fort Dix;
                    D. SCHAAFF, Unit Manager, F.C.I. Fort Dix
                     ROBERT DONAHUE, CMC, F.C.I. Fort Dix
                     ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1:11-cv-05987)
                     District Judge: Honorable Jerome B. Simandle
                     ____________________________________

           Submitted for Possible Dismissal Due to a Jurisdictional Defect or
                       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
                                   October 10, 2013
           Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                          (Opinion filed: October 18, 2013 )
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Karim Faruq appeals pro se from the District Court’s order dismissing his

complaint. For the following reasons, we will summarily affirm.
                                             I.

       Faruq, a federal prisoner, filed a complaint pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Mary

McCollum, a case manager at the prison; David Schaaff, a unit manager at the prison;

and Robert Donahue, the prison’s case manager coordinator. According to Faruq, he

submitted transfer requests to the defendants in December 2009 under BOP Program

Statement 5100.08 and 18 U.S.C. § 3621(b), when he realized that he had become

eligible for transfer to a minimum security facility. At the time, his custody classification

was moderate severity. In response, Defendant Schaaff allegedly instructed Defendant

McCollum to process the transfer. Several months later Defendant McCollum reviewed

Faruq’s file, including prior custody classification reviews, to determine his

appropriateness for transfer and allegedly questioned him about his reasons for

complaining to her superiors. Thereafter, Defendant McCollum raised Faruq’s custody

classification from moderate severity to the greatest severity and, as a result, prevented

him from transferring to a minimum security camp. Faruq challenged the increase,

explaining to the defendants, to no avail, that he was merely a “wholesaler,” not an

organizer or leader in the drug organization, and thus did not qualify for the increased

custody classification. Faruq claimed that Defendant McCollum’s actions amounted to

discrimination on the basis of race and religion. He alleged further that after he informed

Defendants Schaaff and Donahue of his intent to file a grievance and wrote to his U.S.

Senator and congressional representative, the defendants retaliated against him.



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       The District Court screened Faruq’s original and amended complaint pursuant to

28 U.S.C. §§ 1915A and 1915(e)(2), and dismissed both without prejudice for failure to

state a viable equal protection and retaliation claim. Thereafter, Faruq filed a motion to

reopen the case and to file a second amended complaint, this time naming two other

inmates who allegedly were similarly situated to him but received more favorable

treatment. In particular, he claimed that the defendants transferred one inmate—

Winestock—to a minimum security camp despite the fact that he had been convicted for

possessing significantly more drugs than Faruq and had received a sentence enhancement

for his leadership role in a drug organization. Faruq claimed the defendants did the same

with another inmate—McKubbin—who, having arrived at Fort Dix with the greatest

severity custody classification for his role as a organizer/leader in a drug organization,

was ultimately deemed a “supervisor” instead of an organizer/leader. The District Court

granted Faruq’s motion to reopen but dismissed his second amended complaint without

prejudice because he failed to allege that his custody level was increased for any reason

other than his criminal history, that he was similarly situated to the other inmates, and

that the other inmates received more favorable treatment. This timely appeal followed.

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291,1 and we exercise plenary review

over the District Court’s order dismissing Faruq’s complaint. See Gelman v. State Farm


1
 Generally, an order dismissing a complaint without prejudice is not final within the
meaning of 28 U.S.C. § 1291 unless the litigant cannot cure the defect or intends to stand
on the complaint. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976)
(per curiam). Here, the District Court did indeed dismiss the complaint without
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Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). To survive dismissal, the

complaint needed to “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)). We may summarily

affirm if the appeal does not present a substantial question, see I.O.P. 10.6; see also

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

       In dismissing Faruq’s second amended complaint, the District Court took judicial

notice of his earlier habeas action,2 incorporating the record from it for the purpose of

reviewing the claims raised here,3 and concluded that Faruq failed to allege that his

increased custody classification was the result of either an equal protection violation or

retaliation. For substantially the reasons given, we agree with this conclusion.

       To state a claim for race- or religion-based discrimination, Faruq needed to show

specifically that he received different treatment from that received by other similarly



prejudice, but it did not expressly grant leave to amend. Instead, unlike its October 18,
2012 order dismissing Faruq’s original and amended complaint, the District Court
ordered the clerk to close the case. See Garber v. Lego, et al., 11 F.3d 1197, 1198 n.1 (3d
Cir. 1993). Nothing in the District Court’s opinion or order anticipates the continuation
of the action further, and Faruq appealed rather than seeking to amend yet again.
Accordingly, we deem the District Court order final and appealable.
2
  Faruq challenged the BOP’s denial of his transfer request, arguing for a lower custody
classification. The District Court dismissed the petition, though, for lack of jurisdiction.
See Faruq v. Zickefoose, No. 10-cv-6768, 2011 WL 4625358 (D.N.J. Oct. 3, 2011).
3
  Although District Courts are generally limited to considering only the allegations in the
complaint at the dismissal stage, the District Court here was permitted to consider the
record from Faruq’s earlier habeas case. See City of Pittsburgh v. West Penn Power Co.,
147 F.3d 256, 259 (3d Cir. 1998) (explaining the public-records exception to the general
rule of conversion).

                                              4
situated inmates. See Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003). In his

second amended complaint, Faruq pointed to inmates Winestock and McKubbin who he

alleged were similarly situated but received lower custody classification for camp

placement. As Faruq admitted, though, Winestock was not similarly situated.

Winestock’s custody classification was lowered from greatest severity to moderate at the

same time that Faruq’s was lowered, but, unlike Faruq, Winestock’s classification was

never again raised. (See Pl.’s Second Am. Compl., at 6; Br. in Supp. of Appeal, at 2.)

Winestock was therefore eligible for a transfer. Besides, as Faruq also admitted,

Winestock is not in a minimum security camp. (See Pl.’s Second Am. Compl., at 6.)

And McKubbin was not treated more favorably than Faruq; like Faruq, McKubbin’s

custody classification was increased to greatest severity and he was ultimately denied

camp placement. (See id. Ex. 1.)

       At bottom, Faruq failed to allege that the defendants acted with discriminatory

intent or purpose. See City of Cuyahoga Falls, Ohio v. Buckeye Community Hope

Foundation, 538 U.S. 188, 194-95 (2003). Although Faruq claimed that his race and

religion were the reasons that Defendant McCollum increased his custody classification

from moderate severity to the greatest severity, he conceded that the defendants had a

rational reason for it; his custody classification was increased because of his purported

role as a leader and organizer of a drug organization, which, in accordance with the

BOP’s Program Statement 5100.08, negated a lower custody classification. (See Pl.’s

Second Am. Compl. Ex. 3.); see also Ramsgate Court Townhome Ass’n v. West Chester



                                             5
Borough, 313 F.3d 157, 160 (3d Cir. 2002) (requiring a plaintiff to negate every

conceivable rational basis for his differential treatment).

       For the reasons discussed above, Faruq also failed to allege that the defendants

increased his custody classification in retaliation for filing grievances requesting a

transfer and sending letters to his senator and congressional representative. In particular,

he failed to allege a causal link between his complaints and the defendants’ actions. See

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (“A prisoner alleging retaliation must

show that (1) constitutionally protected conduct, (2) an adverse action by prison officials

sufficient to deter a person of ordinary firmness from exercising his constitutional rights,

and (3) a causal link between the exercise of his constitutional rights and the adverse

action taken against him.”). Foremost, as the District Court explained in dismissing the

original and first amended complaint, Faruq’s custody classification was increased before

he ever filed his administrative remedy and contacted his representatives. Moreover, as

noted above, the increase resulted from Defendant McCollum’s review of Faruq’s file to

determine the appropriateness of a transfer—the transfer that Faruq had requested.

       For the reasons given, the District Court properly dismissed Faruq’s second

amended complaint. Accordingly, we will summarily affirm the judgment of the District

Court. Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d

Cir. L.A.R.; I.O.P. 10.6.




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