BLD-302                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 11-2041
                                   ___________

                          HILTON KARRIEM MINCY,
                                           Appellant

                                         v.

  SUPERINTENDENT EDWARD KLEM; LIEUTENANT WILLIAM C. WETZEL;
    OFFICER MIKNICH; OFFICER ROGER LATHAM; OFFICER GILLIGAN;
CAPTAIN THOMAS DERFLER; CYNTHIA STRAUB; UNIT MANAGER GEORGE
 CLEMENTS; KENNETH MUMMA; CHIEF GRIEVANCE OFFICER SHARON M.
   BURKS; HEARING EXAMINER J. KEVIN KANE; CHIEF HEARING EXAM.
                         ROBERT S. BITNER
                ____________________________________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                              (D.C. Civil No. 08-0066)
                 District Judge: Honorable Christopher C. Conner
                   ____________________________________

      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
                               September 29, 2011

      Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                         (Opinion filed: October 14, 2011)
                                     _________

                                    OPINION
                                    _________

PER CURIAM

    Pro se appellant Hilton Mincy appeals the District Court’s orders granting three of
the defendants’ motion to dismiss and the remaining defendants’ motion for summary

judgment. We have jurisdiction under 28 U.S.C. § 1291 and review the orders under a

plenary standard of review. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d

187, 190 (3d Cir. 2009) (motion to dismiss); State Auto Prop. & Cas. Ins. Co. v. Pro

Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009) (summary judgment). Because this appeal

presents no substantial question, we will summarily affirm the District Court’s judgment.

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       The instant case represents the latest chapter in a series of cases that Mincy has

filed against prison officials at SCI-Mahanoy, where he was formerly incarcerated. On

January 3, 2006, Mincy was transferred from one cell to another. When he arrived at his

new cell, Maurice Mosely, the other inmate assigned to the cell, was removed so that

Mincy could install himself and his belongings. Soon after Mosely returned, he attacked

Mincy. Several of the defendants then entered the cell, separated Mosely and Mincy, and

escorted Mincy to the medical unit, where he was treated by a nurse and a physician’s

assistant.

       Mincy claims that Mosely attacked him at the defendants’ behest. According to

Mincy, the defendants, and especially William Wetzel, were angered by testimony he had

given at a deposition in support of an earlier lawsuit he had filed. (In that lawsuit, Mincy

alleged that other Mahanoy employees had retaliated against him for filing a previous

lawsuit.) More specifically, in the deposition, Mincy stated that Wetzel had watched

another guard assault him but had failed to intervene. Mincy claims that this testimony
                                             2
upset Wetzel and that he therefore orchestrated the transfer and attack. This conduct,

Mincy alleges, violated his First Amendment rights.1

       The District Court first granted a motion to dismiss that Cynthia Straub, George

Clements, and Kenneth Mumma filed, ruling that Mincy had failed to plead that these

defendants were personally involved in the allegedly unconstitutional conduct. The

Court subsequently granted summary judgment to the other defendants. First, the Court

held that Mincy had also failed to show that the majority of the remaining defendants had

any personal involvement in the alleged wrongs. The Court then held that Mincy’s

retaliation claim failed because the undisputed evidence showed that Mincy had been

moved pursuant to an internal prison regulation, DC-ADM 6.5.1, which requires that

inmates of Mincy’s security class be transferred every 90 days. Mincy then filed a timely

notice of appeal to this Court.

       We agree with the District Court’s disposition of this case. As an initial matter,

Mincy argues that the District Court should have refused to consider the defendants’

statement of undisputed facts in support of their motion for summary judgment because it

was untimely. We disagree; the defendants filed within the period prescribed by the

District Court. See June 2, 2010 Order. While the District Court’s order referred

1
  In his complaint, Mincy also cited the Eighth Amendment, but failed to develop that
claim before the District Court. To the extent that Mincy has not abandoned the claim,
we conclude that the defendants were entitled to summary judgment because Mincy
failed to show that they acted with “deliberate indifference” to his health and safety.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The only argument that he has presented
is that the defendants formally arranged for Mosely to attack him and, as discussed
below, we conclude that the District Court properly rejected this argument.
                                             3
specifically to only the defendants’ summary judgment brief, in context, we are

convinced that the Court intended for the order to set the deadline for both the brief and

the statement of facts. See generally In re Fine Paper Antitrust Litig., 685 F.2d 810, 817

(3d Cir. 1982) (“We will not interfere with a trial court’s control of its docket except

upon the clearest showing that the procedures have resulted in actual and substantial

prejudice to the complaining litigant.” (internal quotation marks omitted)).

       We further agree with the District Court that, even accepting Mincy’s allegations,

the majority of the defendants that he has named simply had no part in the alleged

misconduct. “A defendant in a civil rights action must have personal involvement in the

alleged wrongs; liability cannot be predicated solely on the operation of respondeat

superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Similarly, a prison

official’s secondary review of an inmate’s grievance or appeal is not sufficient to

demonstrate the requisite personal involvement. See id. at 1207-08. Therefore, we will

affirm the District Court’s orders granting summary judgment to defendants Edward

Klem, Thomas Derfler, Sharon Burks, Kevin Kane, Robert Bitner, and dismissing the

complaint as to Straub, Clements, and Mumma.

       We will likewise affirm the District Court’s order granting summary judgment to

Wetzel, Thomas Miknich, Roger Latham, and James Gilligan on Mincy’s retaliation

claim. As noted above, Mincy contends that in retaliation for his testifying adversely to

Wetzel, the defendants arranged for him to be attacked by Mosely. To establish a claim

of retaliation under the First Amendment, Mincy must show that (1) the conduct in which
                                              4
he was engaged was constitutionally protected; (2) he suffered adverse action at the

hands of prison officials; and (3) his constitutionally protected conduct was a substantial

or motivating factor in the decision to take the adverse action. Rauser v. Horn, 241 F.3d

330, 333-34 (3d Cir. 2001). If Mincy makes this initial showing, the defendants “may

still prevail by proving 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, the undisputed evidence shows that, on January 3, 2006, prison regulations

required the defendants to transfer Mincy because he had been in his then-current cell for

more than 90 days. The defendants have stated that they did, in fact, transfer him

pursuant to this regulation. We thus conclude that the defendants’ conduct was

reasonably related to a legitimate penological interest, and, as the District Court held,

there is no genuine issue of material fact that Mincy would have been transferred

notwithstanding his deposition testimony. See Carter v. McGrady, 292 F.3d 152, 159 (3d

Cir. 2002). While Mincy complains that his move was overdue, that does not change the

fact that the move was mandated by prison regulations; if anything, it made immediate

compliance all the more necessary.

       Mincy argues that the gravamen of his claim is not that he was transferred, but that

he was set up to be assaulted. However, he has presented absolutely no evidence that the

defendants arranged for him to be attacked, and his speculation is not sufficient to survive




                                              5
summary judgment.2 See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.

2005). In fact, the defendants’ response to the fight — they broke up the fight and then

immediately provided medical care to Mincy — militates against any suggestion that they

sought to harm him. Cf. Washington v. LaPorte Cnty. Sheriff’s Dep’t, 306 F.3d 515,

518-19 (7th Cir. 2002) (observing that where, after an inmate was attacked, the guards

“immediately removed him from the cell block [and] gave him appropriate medical care,”

the guards “display[ed] deliberate care, not deliberate indifference” (internal quotation

marks omitted)). Therefore, the District Court properly granted judgment to the

defendants.

       Finally, we conclude that the District Court acted within its discretion in declining

to exercise supplemental jurisdiction over Mincy’s state law claims. See 28 U.S.C.

§ 1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999).

       Accordingly, we will summarily affirm the District Court’s orders granting the

defendants’ motion to dismiss and motion for summary judgment. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.




2
 Mincy has presented an affidavit from another inmate stating that Mosely had said,
sometime after the attack, that he had been in league with the guards. This affidavit,
however, is inadmissible hearsay that cannot be used to overcome summary judgment.
See Smith v. City of Allentown, 589 F.3d 684, 693-94 (3d Cir. 2009).
                                             6
