DLD-104                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-3983
                                  ___________

                               NATHAN RILEY,
                                         Appellant

                                        v.

          MICHAEL DECARLO, Correctional Food Service Manager 1;
        WALLACE DITTSWORTH, Correctional Food Service Manager 2;
           JEFF ROGERS, Correctional Classification Program Manager
       LOUIS FOLINO, Superintendant; REV. ALEDA MENCHYK, Facility
         Chaplaincy Program Director; NEDRO GREGO, RN Supervisor;
  J NIEHENKE, Former Safety Manager; FNU CUMBERLEDGE, Safety Manager;
    STEVE BLAZE, Facility Maintenance Manager 3; DORINA VARNER, Chief
     Grievance Officer; JEFFREY A. BEARD, Former Secretary of Corrections
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civil No. 2:11-cv-00537)
                    District Judge: Honorable Cathy Bissoon
                  ____________________________________

      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
                                January 31, 2013

           Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                        (Opinion filed, February 13, 2013)
                              _________________

                                  OPINION
                              _________________

PER CURIAM
       Nathan Riley, an inmate currently incarcerated at SCI Greene in Waynesburg,

Pennsylvania and proceeding pro se, appeals from an order of the United States District

Court for the Western District of Pennsylvania granting summary judgment to Appellees

and dismissing one of his Eighth Amendment claims with prejudice. Because this appeal

does not present a substantial question, we will summarily affirm the District Court‟s

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

                                              I.

       Because we write primarily for the parties, we need only recite the facts necessary

for our discussion. After being transferred to SCI Greene in May 2007, Riley was

immediately placed into administrative custody because he faced danger from another

inmate. He was kept in administrative custody until December 17, 2010. In his

complaint, Riley alleges that during his stay in the restricted housing unit (“RHU”), he

was served a diet containing approximately one-third of the calories provided to general

population inmates and that he suffered substantial weight loss, constant hunger,

weakness, and fatigue as a result. He also asserts that he was served meals on unsanitary

and contaminated food service trays. Furthermore, Riley argues that the ventilation

system in the RHU was not adequately maintained and that the resulting air quality

caused him to suffer various physical ailments.

       After exhausting his administrative remedies, Riley filed his civil rights complaint

pursuant to 42 U.S.C. § 1983. After conducting discovery, Appellees filed a motion for

summary judgment on February 24, 2012. On September 25, 2012, the District Court
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granted summary judgment to Appellees and dismissed Riley‟s Eighth Amendment claim

regarding the Department of Correction‟s (“DOC”) tuberculosis test procedures with

prejudice. Riley then timely filed this appeal.

                                              II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court‟s order granting summary judgment and dismissing Riley‟s Eighth

Amendment claim. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009); Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may summarily affirm on any basis

supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per

curiam).

       To survive a motion to dismiss, “a complaint must 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)). This Court affirms a district court‟s dismissal for failure to state a claim

“only if, accepting all factual allegations as true and construing the complaint in the light

most favorable to the plaintiff, we determine that the plaintiff is not entitled to relief

under any reasonable reading of the complaint.” McGovern v. City of Phila., 554 F.3d

114, 115 (3d Cir. 2009).

       Furthermore, summary judgment is appropriate only when the record “shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the burden of
                                               3
demonstrating that there is no genuine issue as to any material fact, and summary

judgment is to be entered if the evidence is such that a reasonable fact finder could find

only for the moving party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.

2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

                                             III.

       Section 1983 provides private citizens with a means to redress violations of federal

law committed by state individuals. See 42 U.S.C. § 1983. To establish a claim under §

1983, a plaintiff “must establish that she was deprived of a federal constitutional or

statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).

       Riley first alleges that his Eighth Amendment rights were violated because of the

conditions of confinement he endured in the RHU. The relevant inquiry is whether the

alleged deprivation is “sufficiently serious” and whether the inmate has been deprived of

the “minimal civilized measure of life‟s necessities.” Farmer v. Brennan, 511 U.S. 825,

834 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). An inmate must

demonstrate that “he is incarcerated under conditions posing a substantial risk of serious

harm” and that prison officials demonstrated “deliberate indifference” to his health or

safety. Id. However, only “extreme deprivations” are sufficient to sufficiently allege

claims for conditions of confinement. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).

“Relevant considerations include the length of confinement, the amount of time prisoners

must spend in their cells each day, sanitation, lighting, bedding, ventilation, noise,

education and rehabilitation programs, opportunities for activities outside the cells, and
                                              4
the repair and functioning of basic physical activities such as plumbing, ventilation and

showers.” Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (citing Tillery v. Owens, 907

F.2d 418, 427 (3d Cir. 1990)).

       First, Riley asserts that Appellees violated his Eighth Amendment rights by

serving him a diet containing one-third of the calories provided to general population

inmates. However, Riley has provided no evidence to support this contention.

Furthermore, although Riley weighed approximately 163 pounds during District Court

proceedings and weighed 187 pounds five years earlier, this is insufficient to support his

claim that he was subjected to a semi-starvation diet. Accordingly, the District Court

properly granted summary judgment to Appellees.

       Riley also asserts that Appellees failed to maintain the ventilation system in the

RHU and subjected him to poor air quality that made him suffer various physical

ailments. Here, the record reflects that officials cleaned the ducts and changed the filters;

accordingly, officials were not indifferent to the conditions of the ventilation system.

       Although Riley‟s medical records establish that he received treatment for allergies

and congestion at various times, medical staff did not recommend that he be moved to

another cell, and his lungs were characterized as “clear.” Moreover, nothing in the record

indicates that prison officials were aware of these maladies and deliberately continued to

ignore maintenance of the ventilation system. See Spruill v. Gillis, 372 F.3d 218, 236

(3d Cir. 2004) (noting that non-medical prison officials will not be charged with

deliberate indifference absent a reason to believe or actual knowledge that medical staff
                                              5
are mistreating a prisoner); see also Durmer v. O‟Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

Riley also has not shown that the ventilation system in the RHU caused his ailments.

Therefore, we agree with the District Court that summary judgment was warranted for

Appellees as to this claim.

       Riley also alleges that Appellees violated his Eighth Amendment rights by serving

him meals on unsanitary and contaminated food service trays during his time in the RHU.

However, this claim is barred by the doctrine of res judicata. This doctrine bars a

plaintiff who has received a final judgment on the merits in one action from litigating

another suit against the same parties based on the same cause of action. See CoreStates

Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999). A litigant is precluded

from raising a claim where “there has been (1) a final judgment on the merits in a prior

suit involving (2) the same parties or their privies and (3) a subsequent suit based on the

same causes of action.” United States v. Athlone Indus. Inc., 746 F.2d 977, 983 (3d Cir.

1984). Whether two causes of action are identical generally depends on a consideration

of (1) whether the acts complained of and the demand for recovery are the same; (2)

whether the same witnesses and documents will be necessary in the trial in both cases;

and (3) whether the material facts alleged are the same. See id. at 984.

       Here, the District Court properly concluded that res judicata applied to Riley‟s

claim regarding the trays. First, Riley received a final judgment on the merits when the

Honorable Nora Barry Fischer dismissed with prejudice an identical claim in Blount v.

Folino, No. 10-697, 2011 WL 2489894, at *1, *11-*13 (W.D. Pa. June 21, 2011). See
                                             6
Federated Dep‟t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (a “dismissal for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on

the merits” and has claim preclusive effect). Second, Riley and Appellees DeCarlo and

Dittsworth were parties to the suit in Blount. Finally, Blount presented the same cause of

action presented here: that DeCarlo and Dittsworth violated Riley‟s Eighth Amendment

rights by using allegedly unsanitary and contaminated food service trays. Furthermore, it

is irrelevant that Riley filed the complaint that is the subject of this appeal before Judge

Fischer dismissed his claim in Blount. See Rest. 2d Judg. § 14 (1982) (“For purposes of

res judicata, the effective date of a final judgment is the date of its rendition, without

regard to the date of commencement of the action in which it is rendered or the action in

which it is to be given effect.”). Accordingly, the District Court properly granted

summary judgment to Appellees on this claim.

       Finally, Riley asserts that Appellees violated his Eighth Amendment rights by

confining him to “medical keeplock” in the RHU for refusing to submit to a purified

protein derivative (“PPD”) test for tuberculosis. The PPD test requires a small portion of

PPD to be placed under the patient‟s skin. However, the record establishes that Riley has

never been forced to undergo a PPD test against his will and that he was never sanctioned

for his refusal because his confinement in the RHU was never based upon his refusal to

submit to the PPD test. Therefore, the District Court properly dismissed this claim.1


1
 The District Court did not provide Riley leave to amend this claim before dismissing it
with prejudice. We conclude that the District Court did not err in declining to allow
                                               7
       Riley further alleges that officials violated his rights under the First Amendment‟s

Free Exercise Clause and the Fourteenth Amendment‟s Equal Protection Clause by not

providing a Halal meat diet for Muslims and because of the DOC procedures concerning

the PPD test. “Inmates clearly retain protections afforded by the First Amendment,

including its directive that no law shall prohibit the free exercise of religion.” O‟Lone v.

Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). However, an inmate only

“retains those First Amendment rights that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of the corrections system.” Pell v.

Procunier, 417 U.S. 817, 822 (1974). To determine whether a regulation infringing upon

constitutional rights is reasonable, courts apply the four factors set forth in Turner v.

Safley, 482 U.S. 78 (1987). These factors require courts to consider: (1) “whether the

regulation bears a „valid rational connection‟ to a legitimate and neutral government

objective;” (2) “whether there are alternative means of exercising the right that remain

open to prison inmates;” (3) “the impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on the allocation of prison resources

generally;” and (4) “the absence of ready alternatives.” Id. at 89-90; see also Fraise v.

Terhune, 283 F.3d 506, 513-14 (3d Cir. 2002) (citations omitted).




Riley an opportunity to amend because we do not see how any amendment to his
complaint would save his claims. See Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002) (noting that court should not dismiss pro se complaints without
granting leave to amend unless “amendment would be inequitable or futile”).
                                              8
       With regard to Riley‟s Equal Protection claim, “Turner is equally applicable [],

and the appropriate analysis for this claim is the same as that for [his] Free Exercise

claim.” DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000). Generally, prison officials

cannot discriminate against inmates of different religions. Cruz v. Beto, 405 U.S. 319

(1972) (per curiam). However, an inmate “cannot obtain relief if the difference between

the defendants‟ treatment of him and their treatment of [inmates of another religion] is

„reasonably related to legitimate penological interests.‟” DeHart, 227 F.3d at 61.

       According to Riley, prison officials have violated his First and Fourteenth

Amendment rights by choosing not to provide a Halal meat diet to all Muslim inmates

while providing a kosher diet for Jewish inmates. However, the record reflects that most

Muslims incarcerated within the DOC eat the alternative protein diet or the no animal

products diet to be in accord with their religious beliefs. Furthermore, the DOC does not

provide a Halal meat diet because such a diet would significantly impact prison resources

because of the cost of Halal meats. Additional staff would be needed to check the food

deliveries for security purposes, and kosher meat would also need to be ordered for

Jewish inmates to avoid equal protection problems. Accordingly, Appellees have

demonstrated a legitimate government objective underlying its decision not to serve a

Halal meat diet. See Turner, 482 at 89.

       Furthermore, Appellees have submitted evidence that Riley has been provided

numerous opportunities to request the no animal products diet but has refused to do so.

Therefore, Riley has alternative ways of observing his religious beliefs. See id. at 90.
                                              9
Likewise, Appellees have satisfied the third and fourth Turner factors by demonstrating

the deleterious impact serving a Halal meat diet would have on other inmates, prison

officials, and prison resources and by noting that an alternative—the no animal products

diet—does already exist at de minimus cost. See id. Given the record, we agree with the

District Court that summary judgment was warranted for Appellees on this claim.

       Riley also asserts that the DOC‟s policy of administering a PPD test for

tuberculosis violates his religious beliefs because the form of testing is forbidden under

the tenets of Islam. However, as noted above, Riley was never forced to undergo a PPD

test against his will, and he was never confined in the RHU for his failure to submit.

Accordingly, Riley has not met his burden of demonstrating that the DOC‟s regulations

concerning PPD testing interfered with the practice of his religion, and the District Court

properly granted summary judgment to Appellees for this claim.

       According to Riley, the DOC‟s regulations concerning religious diets and PPD

testing also violated his rights under the RLUIPA. The RLUIPA “protects

institutionalized persons who are unable freely to attend to their religious needs and are

therefore dependent on the government‟s permission and accommodation for exercise of

their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). The statute states that:

       No government shall impose a substantial burden on the religious exercise
       of a person residing in or confined to an institution . . . even if the burden
       results from a rule of general applicability, unless the government
       demonstrates that imposition of the burden on that person—

       (1)    is in furtherance of a compelling governmental interest; and

                                             10
       (2)    is the least restrictive means of furthering that compelling governmental
              interest.


42 U.S.C. § 2000cc-1(a).

       “[A] substantial burden exists where: (1) a follower is forced to choose between

following the precepts of his religion and forfeiting benefits otherwise generally available

to other inmates versus abandoning one of the precepts of his religion in order to receive

a benefit; OR (2) the government puts substantial pressure on an adherent to substantially

modify his behavior to violate his beliefs.” Washington v. Klem, 497 F.3d 272, 280 (3d

Cir. 2007). If an inmate satisfies his initial burden of showing that a practice

substantially burdens his religious exercise, the burden then shifts to the government to

show that the challenged policy “is in furtherance of a compelling governmental interest

and is the least restrictive means” to enforce that interest. Id. at 283 (citing 42 U.S.C. §

2000cc-1(a)). As discussed above, however, Riley has not demonstrated that the DOC‟s

decision to not serve a Halal meat diet and its policies concerning PPD testing have

substantially burdened his religious exercise. Therefore, the District Court properly

granted summary judgment to Appellees for Riley‟s claims under the RLUIPA.

                                             IV.

       For the foregoing reasons, no substantial question is presented and we will affirm

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.




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