                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2009

Miguel A. Lopez v. Jeffrey Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3699




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3699
                                      ___________

                                  MIGUEL A. LOPEZ,
                                                 Appellant

                                            v.

         JEFFREY A. BEARD, PH.D., Secretary of Corrections; WILLIAM S.
        STICKMAN, Deputy Secretary of Corrections; GERALD L. ROZUM,
        Superintendent, SCI Somerset; TOM PAPUGA, Captain, SCI Somerset;
        DAVID CLIPPINGER, Lt. Shift Commander; RICARDO ALVAREZ,
           Correctional Officer; CINDY WATSON, Chief Grievance Officer
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 08-cv-00120)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 18, 2009
                 Before: BARRY, SMITH and GARTH, Circuit Judges

                             (Opinion filed: June 18, 2009 )
                                      _________

                                       OPINION
                                       _________

PER CURIAM

       Miguel Lopez, proceeding pro se, appeals from the District Court’s dismissal of

his complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim on which relief
could be granted. For the reasons that follow, we will affirm.

       Lopez filed a complaint and an amended complaint in the United States District

Court for the Western District of Pennsylvania on June 2, 2008. He named as defendants

Jeffrey A. Beard, Secretary of Corrections, William S. Stickman, Deputy Secretary of

Corrections, Gerald L. Rozum, Superintendent, S.C.I. Somerset, Tom Papuga, Captain,

S.C.I. Somerset, David Clippinger, Lieutenant Shift Commander, S.C.I. Somerset,

Ricardo Alvarez, Correctional Officer, S.C.I. Somerset, and Cindy G. Watson, Chief

Grievance Officer for the Pennsylvania Department of Corrections at Camp Hill,

Pennsylvania.

       In his complaints, he alleged that he has full-blown HIV/AIDS, and that this fact

was well known to prison officials and his fellow inmates. He stated that on October 23,

2004, Captain Papuga denied his mother and brother a contact visit with him, forcing him

to have a non-contact visit instead. He claimed that this denial was based on his having

HIV/AIDS. He further alleged that on March 15, 2008, his sister and brother-in-law were

denied entrance and a visit with him by Officer Alvarez and Lieutenant Clippinger, who

informed him – erroneously, it appears – that they were not on his approved visitors’ list.

He also alleged that on several occasions, individuals who were not named as defendants

in his complaint made disparaging statements about his medical condition. (Compl. ¶¶ 8,

15.) Based on these allegations, Lopez claimed that defendants violated his rights under

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Eighth and



                                             2
Fourteenth Amendments of the U.S. Constitution. He claimed that he suffered irreparable

harm to his mental and emotional well-being, that his medical condition worsened as a

direct result of defendants’ acts, and that he feared that, due to his disease, he might not

have another opportunity to visit with his family.

       In his Report & Recommendation, the Magistrate Judge recommended that

Appellant’s claims against four of the defendants be dismissed, as he failed to allege that

Secretary Beard, Deputy Secretary Stickman, Superintendent Rozum and Chief Grievance

Officer Watson had any personal involvement in the denials of either the visit or contact

visit. The Magistrate Judge then noted that while Lopez had alleged personal

involvement by the remaining defendants, his claims of denial of visitation did not rise to

the level of a constitutional violation, and he failed to allege physical injury in support of

his claim for compensatory damages based on his emotional distress. With respect to his

claim that the denials of visitation violated his rights under the Americans with

Disabilities Act (“ADA”), the Magistrate Judge held that Appellant failed to demonstrate

the requisite nexus between the denials of visitation and his disability. Specifically, the

Magistrate Judge explained: “Examining the many pages of documents plaintiff has

submitted in support of his complaint, even accepting plaintiff’s allegations as true, it is

not plausible that defendants’ actions can be construed as discriminating against him

because of a disability. Plaintiff alleges two incidents involving different defendants who

made different mistakes involving visitation procedures more than three years apart, and



                                               3
the actions bear no conceivable relationship to any animus toward persons with AIDS.”

       Appellant filed objections to the Magistrate Judge’s Report & Recommendation,

arguing that his complaint should not be dismissed without giving him an opportunity to

amend. In response, the District Court permitted him to file an amended complaint in

which he alleged that he was deliberately denied contact with family members on October

23, 2004 “in retaliation and discrimination of plaintiff being HIV-AIDS positive and

having a history of problems with staff, including the filing of numerous complaints

against staff.” He contested Superintendent Rozum’s response to his grievance indicating

that he had a no-contact visit remark on his record for a prior misconduct and concluded

that it could not be considered merely an error in light of other unspecified “prejudice,

discrimination and retaliation.” The only specific claim he made with respect to any

individually named defendant was that Correctional Officer Alvarez made “belittling and

discriminating remarks and gestures about plaintiff to his then-girlfriend” and altered his

approved visitors list, thus preventing his sister and brother-in-law from visiting him. He

asserted that the prison officials’ grievance responses were falsified in an attempt to cover

up their bad acts. The District Court dismissed his retaliation claim as frivolous,

dismissed his amended complaint for failure to state a claim on which relief could be

granted, and otherwise adopted the Magistrate Judge’s Report & Recommendation as the

opinion of the Court. Lopez timely appealed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of



                                             4
review is plenary. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

When reviewing a complaint dismissed under § 1915(e)(2)(B), we apply the same

standard provided for in Federal Rule of Civil Procedure 12(b)(6). See id.; see also Kay

v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). In determining whether a district

court properly dismissed a complaint under Rule 12(b)(6), we are required to “accept all

factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the

plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233

(3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.

2002)). At this stage, “a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, __

U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 556 (2007)); see also Phillips, 515 F.3d at 234 (“‘a claim requires a complaint with

enough factual matter (taken as true) to suggest’ the required element”). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is

entitled to relief.’” Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).

       What Lopez has alleged in his complaint and amended complaints are theories and



                                                5
conclusions, not facts. While Lopez claims that he has been subject to “prejudice,

discrimination and retaliation” at the hands of certain defendants, and that Officer

Alvarez made “belittling and discriminating remarks and gestures about plaintiff to his

then-girlfriend,” he does not offer any specifics about these alleged incidents which

would permit a court to reach the conclusion that they were discriminatory. See Iqbal,

129 S. Ct. at 1952 (“He would need to allege more by way of factual content to ‘nudg[e]’

his claim of purposeful discrimination ‘across the line from conceivable to plausible.’”).

Accordingly, we agree that the District Court properly dismissed his claims of violations

of his rights under the First, Eighth and Fourteenth Amendments of the U.S. Constitution

and Title II of the ADA for failure to state a claim.1



   1
     To state a First Amendment retaliation claim, an inmate must show that: (i) he
engaged in constitutionally protected conduct; (ii) an adverse action was taken by prison
officials “‘sufficient to deter a person of ordinary firmness from exercising his
[constitutional] rights;’” and (iii) there was a causal relationship between the two. Rauser
v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225
(3d Cir. 2000)). To state an Eighth Amendment violation, he must allege that prison
officials acted with deliberate indifference that deprived him of “‘the minimal civilized
measure of life’s necessities.’” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1991). To demonstrate a denial of equal
protection, he must show that he has been arbitrarily treated differently than similarly
situated inmates, and this difference in treatment bears no rational relation to any
legitimate penological interest. See Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir.
1985). To establish a violation of Title II of the ADA, an inmate must allege that: (1) he
is a qualified individual with a disability; (2) he was either excluded from participation in
or denied the benefits of some public entity’s services, programs, or activities; and (3)
such exclusion, denial of benefits, or discrimination was by reason of his disability. See
42 U.S.C. § 12132; Robertson v. Los Animas County Sheriff’s Dep’t, 500 F.3d 1185,
1193 (10th Cir. 2007). We agree with the District Court that two scattered denials of
visitation do not rise to the level of cruel and unusual punishment under the Eighth

                                              6
       Based on the foregoing, we will affirm the judgment of the District Court.




Amendment and that Lopez has failed to set forth facts that could give rise to a “plausible
inference” of discrimination, as required by his remaining causes of action.

                                             7
