DLD-128                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-4121
                                       ___________

                                   TYREE LAWSON,
                                               Appellant
                                         v.

              BRENDA HAUPT, SUED IN HER INDIVIDUAL CAPACITY
                    ____________________________________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              (D.C. Civil No. 1-15-cv-00141)
           District Judge: Honorable Susan Paradise Baxter, Magistrate Judge
                       ____________________________________

       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
                                  February 9, 2017
          Before: CHAGARES, VANASKIE, and KRAUSE, Circuit Judges

                            (Opinion filed: February 17, 2017)

                                        OPINION*


PER CURIAM

       Tyree Lawson appeals from the judgment of the United States District Court for

the Western District of Pennsylvania. We will summarily affirm.



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         In June 2015, Lawson, a prisoner confined at SCI-Forest, filed a complaint

pursuant to 42 U.S.C. § 1983, alleging that Brenda Haupt, SCI-Forest Corrections Unit

Manager, retaliated against him after he exercised his First Amendment right to file a

grievance. Specifically, Lawson claims that Haupt moved him from I Unit “privileged”

housing to F Unit on December 4, 2014, in retaliation for his filing a grievance appeal.

Lawson claims that F Unit is a “problematic” unit, and that he was also assigned to a cell

with a “problematic” inmate.

         In February and March 2016, the parties filed cross-motions for summary

judgment. By order entered on September 28, 2016, the District Court 1 granted Haupt’s

motion for summary judgment, and denied Lawson’s cross-motion for summary

judgment. The District Court denied Lawson’s motion for reconsideration. Lawson

appeals.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Lawson has been

granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for

possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We may summarily affirm

under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks substantial merit. We

exercise plenary review over a district court order for summary judgment. Giles v.

Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate “if the

movant 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 “bears

the initial responsibility of informing the district court of the basis for its motion, and

1
    Both parties consented to a Magistrate Judge’s jurisdiction over this matter.
                                               2
identifying those portions” of the record which demonstrate the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party meets its burden, the nonmoving party then must present specific facts that

show there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       We agree with the District Court that summary judgment was proper with regard

to Lawson’s retaliation claim against Haupt. To establish a claim of retaliation, a

prisoner must show: (1) that he was engaged in a constitutionally protected activity; (2)

that he “suffered some ‘adverse action’ at the hands of the prison officials”; and (3) that

the protected activity was “a substantial or motivating factor” in the prison officials’

decision to take the adverse action. Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001).

The burden then shifts to the prison officials to prove “that they would have made the

same decision absent the protected conduct for reasons reasonably related to a legitimate

penological interest.” Id. at 334.

       Lawson satisfied the first prong of a prima facie First Amendment retaliation

claim by filing his grievance. With regard to the second factor, we agree with the District

Court’s conclusion that Lawson has not established that he suffered the requisite adverse

action. While Lawson insists that I Unit is an “honor” or “privileged” housing unit and

when Haupt transferred him, it constituted an adverse action, he has failed to demonstrate

what additional benefits or privileges the I Unit offers that the other housing units lack.

Moreover, it is well-established that prisoners do not have a constitutional right to any

particular housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245-48 (1983).

                                              3
       Lawson also fails to allege any causal connection between the filing of his

grievance and his transfer to F Unit. By contrast, Haupt produced evidence

demonstrating that she would have transferred Lawson out of I Unit, even if he had not

engaged in a constitutional protected activity. In her summary judgment affidavit, Haupt

stated that I Unit houses inmates who are eligible for outside clearance (R clearance), and

others who, based on institutional need, are appropriate for level two housing – including

maintenance workers, certain dietary workers, and commissary workers. As outside

clearance-eligible inmates are identified and moved into I Unit, those who do not require

I Unit housing are moved out to make bed space available. Lawson did not have an R

code clearance and was not eligible for any of the jobs that would require placement in I

Unit. Haupt stated that on December 4, 2014, five incoming inmates were either R code

or had job categories that required I Unit housing, and the unit was at near full capacity.

As a result, Haupt moved Lawson and two other inmates from the unit. 2 Moreover,

Haupt contends that she has nothing to do with where transferred prisoners are placed in

general population as the Inmate Employment Office handles all housing and bed

assignments from that point, and she is not even told where the inmates are going.

Lawson has not countered Haupt’s statements by presenting facts that would create a

genuine dispute of material fact. After considering the evidence of record, a reasonable

finder of fact would have to conclude that Haupt would have made the same decision to

2
  Haupt stated that Lawson and several of the others who had been transferred out of I
Unit had probably been placed there months earlier “because there was extra space at the
time and no one gave the situation sufficient thought,” but Lawson “probably should
never have been housed there in the first place.”

                                             4
transfer Lawson out of legitimate penological interests regardless of any retaliatory

motive. See Rauser, 241 F.3d at 334. Thus, the District Court properly granted summary

judgment to Haupt. 3

       As there is no substantial question presented by this appeal, we will summarily

affirm the judgment of the District Court.




3
 We further agree with the District Court’s determination that allowing Lawson the
opportunity to amend his complaint to more fully allege adverse action would be futile as
Haupt has established that she would have transferred Lawson absent his filing of the
grievance or appeal.
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