GLD-230                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 12-2373
                                   ___________

                             CHARLES SIMS AFRICA,
                                   Appellant

                                         v.

LT. DUKES; JULIE KERKER, Unit Manager; C. J. MCKEOWN, Hearing Examiner; OFFICER
                         TEASDALE; OFFICER NOEL

                    ____________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                          (D.C. Civil No. 1-10-cv-01838)
                   District Judge: Honorable Sylvia H. Rambo
                   ____________________________________

       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
                                   July 19, 2012

        Before: FUENTES, GREENAWAY, JR. and BARRY, Circuit Judges

                           (Opinion filed: July 31, 2012 )
                                    _________

                                    OPINION
                                    _________
PER CURIAM

       Charles Sims Africa, a state prisoner proceeding pro se, appeals an order of the

District Court granting summary judgment. Because this appeal presents no substantial

question, we will summarily affirm.

                                             I.

       In September 2010, Africa filed a complaint pursuant to 42 U.S.C. § 1983 alleging

various civil rights violations. According to the Complaint, from May 26, 2010 to June

13, 2010, Africa was confined to the Restricted Housing Unit (“RHU”) of the State

Correctional Institute at Retreat by Defendant Julie Kerker for failure to obey a

command. While Africa was in the RHU, Lieutenant Dukes, a corrections officer

employed by the prison, harassed and threatened him, hurled racial epithets, and denied

him an hour of exercise. Africa was forced to share a cell with an inmate, George Tiddle,

who was unstable and prone to fits of violence, a fact Dukes was aware of when he

assigned the prisoners to share a cell. Both Africa and Tiddle asked Dukes to house them

separate from each other. On June 9, 2010, while handcuffed in his cell, Africa was

assaulted by Tiddle. Defendants Dukes, Noel, and Teasdale conspired to fabricate a story

that Africa was fighting and omitted the fact that Africa was handcuffed during the attack

in official reports. Defendant Noel issued Africa a misconduct report for fighting and

Hearing Examiner C.J. McKeown found Africa guilty of fighting, even after learning that

Africa was handcuffed during the assault.


                                             2
       The Defendants filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), which the District Court granted as to all claims and Defendants

except the Eighth Amendment conspiracy claims against Teasdale and Noel. The District

Court granted Africa leave to file an amended complaint, which he did in May 2011. The

Amended Complaint alleged that the defendants violated his Eighth Amendment rights

by failing to protect him from the assault and violated his Fourteenth Amendment rights

by conspiring to issue a misconduct report and finding him guilty of misconduct. All

Defendants once again moved to dismiss pursuant to Rule 12(b)(6). The Court granted

the motion as to all claims and Defendants except the Eighth Amendment failure to

protect claim against Dukes. The District Court did not grant leave to amend, finding

that further amendment would be futile. In September 2011, Dukes filed an answer

alleging that Africa failed to exhaust all available administrative remedies as required

under the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997(e)(a). Dukes

subsequently filed a motion for summary judgment on the same ground, which the court

granted. Africa timely appealed.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Summary affirmance is

proper when no substantial question is presented on appeal. See 3d Cir. L.A.R. 27.4; 3d

Cir. I.O.P. 10.6; see also United States v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir. 2000).

Our review of orders dismissing under Rule 12(b)(6) and granting summary judgment is

plenary, meaning we apply the same test the district court should have used initially. To
                                             3
withstand scrutiny under Rule 12(b)(6), “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, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. at 678. Summary judgment is proper where,

viewing the evidence in the light most favorable to the nonmoving party and drawing all

inferences in favor of that party, there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)(2); Reedy v.

Evanson, 615 F.3d 197, 210 (3d Cir. 2010).

                                              III.

          We first address the District Court‟s September 7, 2011 Order dismissing Africa‟s

failure to protect claims against Kerker, McKeown, Teasdale, and Noel. A prison official

cannot be found liable under the Eighth Amendment unless he knows of and disregards a

substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S.

825, 837 (1994); Beers-Capitol v. Whetzer, 256 F.3d 120, 125 (3d Cir. 2001). The

Amended Complaint alleged that Africa‟s cellmate was unstable and had previously

attacked other inmates, and that Dukes was well aware of the cellmate‟s dangerous

history. The Amended Complaint does not allege or allow for the reasonable inference

that Kerker, McKeown, Teasdale, or Noel knew of the cellmate‟s dangerous history, and

thus fails to state an Eighth Amendment failure to protect claim against these defendants.

See id.
                                               4
       We will also summarily affirm the District Court‟s dismissal of Africa‟s

Fourteenth Amendment due process and conspiracy claims against all defendants. In the

prison context, the right to procedural due process is not triggered unless the prisoner is

subject to “restraint which imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484

(1995). The Amended Complaint fails to allege Africa suffered an atypical or significant

hardship; indeed it fails to allege any details concerning his treatment after being found

guilty of the misconduct. Moreover, the Amended Complaint states that Africa was

given a hearing on the misconduct report; Africa does not allege that he was denied the

opportunity to challenge the misconduct charges. See Smith v. Mensinger, 293 F.3d 641,

654 (3d Cir. 2002). 1

                                             IV.

       The District Court granted summary judgment as to Africa‟s Eighth Amendment

failure to protect claim against Dukes for failure to exhaust. Congress has provided that:

“No action shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are exhausted.”

42 U.S.C. 1997e(a).



1
 With regard to Africa‟s conspiracy claims, they pertain solely to the misconduct, not the
assault preceding it. As the misconduct did not involve constitutional violations, the
conspiracy claims fail.
                                            5
         Africa did not contest Dukes‟ contention that he failed to exhaust administrative

remedies, but instead asserted the exhaustion requirement must be excused because

grievances related to a misconduct charge or disciplinary sanction “will not be addressed

through the inmate Grievance process and must be addressed through department policy

DC-ADM 801, „Inmate Discipline‟ and/or DC-ADM 802, „Administrative Custody

Procedures.‟” However, Africa‟s surviving claim against Dukes alleged an Eighth

Amendment violation based on failure to protect. Accordingly, the District Court

correctly granted Dukes‟ motion for summary judgment.2

                                              V.

         For the foregoing reasons, we will summarily affirm the judgment of the District

Court.




2
 The District Court did not abuse its discretion in denying Africa leave to further amend
his complaint.
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