CLD-155                                                      NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 13-4072
                                 ____________

                             THURMAN MEARIN,
                                         Appellant

                                        v.

               SUPERINTENDENT GREENE SCI, ROBERT B.
              MACINTYRE; SUSAN COWAN; ROBERT DIETZ;
             MIKE IVAN; MAJOR LORINDA WINFIELD; LT. E.
           GREGO; LT. ROBERT L. KENNEDY; LT. S.P. DURCO;
               WALLACE DITTSWORTH; CARLA SWARTZ;
           PAUL PALYA; DORINA VARNER; M. DIALESANDOR;
             DR. YANAKS; DAN DAVIS; SGT. YOUNKIN; COL.
             WILCHER; COL. MARTAIN; COL. GIFFORD; COL.
             MOORE; COL. HARKLEROAD; LT. D. MITCHELL;
           COL. W. SHAWLEY; COL. KNIGHT; COL. BARCHIESI;
              PETE VIDONISH; F.NUNEZ; COL. A. SHAWLEY
                  __________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civ. No. 2-11-cv-00571)
                         District Judge: Nora B. Fischer
                   __________________________________

      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 16, 2014

          Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                        (Opinion filed: January 28, 2014 )
                                 ____________

                                    OPINION
                                       ____________


PER CURIAM

       Appellant Thurman Mearin, a state prisoner, appeals from an order of the District

Court granting summary judgment to the defendants. For the reasons that follow, we will

summarily affirm.

       Mearin, an inmate at the State Correctional Institution in Greene, Pennsylvania

(“SCI-Greene”), filed a civil rights action, 42 U.S.C. § 1983, against numerous

correctional defendants, alleging several violations of his constitutional rights. In the

main, Mearin claimed that the defendants were engaging in a campaign of harassment in

retaliation for his having filed lawsuits and grievances. Discovery ensued, and the

defendants deposed Mearin. Following the close of discovery, the defendants moved for

summary judgment, Fed. R. Civ. Pro. 56(a). After Mearin submitted his brief in

opposition to summary judgment, the Magistrate Judge recommended that summary

judgment be awarded to the defendants. With respect to Mearin’s overarching claim that

he was being retaliated against in numerous ways for exercising his First Amendment

rights, the Magistrate Judge concluded that there was no genuine issue of material fact

with respect to whether there was a causal connection between the exercise of Mearin’s

constitutional rights and the alleged adverse actions. The Magistrate Judge, citing Lauren

W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007), specifically noted

that there was no temporal proximity between Mearin’s protected activity and the alleged

adverse actions taken by certain specific defendants, and thus no suggestion of a


                                              2
retaliatory motive. Mearin then submitted objections to the Report and

Recommendation, in which he discussed his claims that the defendants had attempted to

starve him while he was in disciplinary custody, in violation of the Eighth Amendment;

that he was deprived of his right to call a witness and to make use of a security videotape

in defense of a false misconduct charge, in violation of procedural due process; that he

had been improperly deprived of “Z,” or single cell, status; and that his prison records

had been falsified to keep him in “H,” or high-security status. In an order entered on

September 23, 2013, the District Court awarded summary judgment to the defendants,

adopting the Magistrate Judge’s Report and Recommendation as the opinion of the Court.

       Mearin appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted

him leave to appeal in forma pauperis and advised him that the appeal was subject to

summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third

Cir. LAR 27.4 and I.O.P. 10.6. Mearin has moved for appointment of counsel on appeal.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Summary

judgment is proper where the summary judgment record “shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. Pro. 56(a). A genuine issue of material fact is one that could change

the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986). The moving parties have the initial burden of identifying evidence that they

believe shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Moreover, we are required to view the facts in the light most

                                             3
favorable to the non-moving party, and make all reasonable inferences in his favor. See

Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Ultimately, however,

“[w]here the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       As an initial matter, we agree with the Magistrate Judge that there was no

evidence to show that Mearin’s protected activity was a substantial or motivating factor

in any of the alleged “adverse” actions taken by the defendants (which included falsifying

his records and issuing false misconducts, among other things). See Rauser v. Horn, 241

F.3d 330 (3d Cir. 2001). There was no evidence whatever in the summary judgment

record of a causal connection between the defendants’ various decisions and Mearin’s

prior lawsuits. See DeFlaminis, 480 F.3d at 267 (to establish causal connection, plaintiff

must prove either a suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or a pattern of antagonism coupled with timing to establish a

causal link).

       Independent of his claim of retaliation, Mearin claimed that the defendants starved

him as a form of punishment, while he was in disciplinary custody, by serving him only

half portions of the institution’s 2579-2700 calorie diet. As a result, he lost 18 pounds

from approximately February 19, 2010 to May 4, 2010. Several inmates submitted

statements corroborating Mearin’s claim of inadequate food for those in disciplinary

custody. Correctional officials who are deliberately indifferent to the basic human needs

of inmates violate the Eighth Amendment’s prohibition against cruel and unusual

                                              4
punishment. Estelle v. Gamble, 429 U.S. 97, 103 (1976). They are liable in a civil rights

action if they deprive an inmate of life’s basic necessities, such as food, clothing, and

shelter. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In moving for summary

judgment, the defendants flatly denied that inmates in disciplinary custody, including

Mearin, are deprived of half the calories the institution normally provides to the general

population. Moreover, the defendants asserted that the meals they offer to inmates in

disciplinary custody are nutritionally adequate.

       We have reviewed the summary judgment record, and even considered those

exhibits Mearin submitted with his objections to the Magistrate Judge’s report. Mearin is

over six feet tall, and he weighed 179.5 lbs. on October 16, 2008. At that time, he was

receiving a snack bag along with his evening medication. We note that, in arguing for

single-cell status, Mearin disclosed that he is HIV+ and suffers from hepatitis C. On

April 15, 2009, Mearin weighed 182 lbs. On April 27, 2010, Mearin weighed only 160

lbs. Accordingly, the summary judgment record shows that he suffered a weight loss.

But, by his own admission, prison officials responded to his weight loss; Mearin was seen

by a physician who responded to his condition by ordering an enhanced snack bag, which

provided an additional 900-1000 calories daily to Mearin’s prison diet. By May 6, 2011,

Mearin’s weight was back up to 183 lbs.

       The Magistrate Judge reasoned, and we agree, that there was thus no triable Eighth

Amendment issue because no evidence showed that the defendants acted with a

sufficiently culpable state of mind, that is, with deliberate indifference to Mearin’s basic

needs. The summary judgment record shows that Mearin suffers from debilitating

                                              5
illnesses and that his arguably precipitous weight loss was evaluated by prison staff and

properly treated. His allegation that his weight loss should be blamed on the defendants

retaliatory desire to starve him is not supported by any evidence in the summary

judgment record, and thus the defendants were entitled to summary judgment, Fed. R.

Civ. Pro. 56(e)(3). It is certainly true, as Mearin argues, that credibility determinations

on material issues cannot be made in the context of a motion for summary judgment, see

Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230

(3d Cir. 1993). Moreover, fellow inmates stated, in support of Mearin’s claim, that the

amount of food they receive in disciplinary custody is very small or half of what the

general population receives, although they did not state that they too had lost weight.

But, in opposing summary judgment, the nonmoving party must “do more than simply

show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., 475 U.S. at 586. Here, even with the inmate’s affidavits, a jury would have had an

insufficient evidentiary basis from which to find that the defendants were deliberately

starving Mearin because his weight loss does not indicate that he was starving. In

addition, he suffers from a chronic illness, and he offered no medical evidence to show

that his weight loss was caused by the prison diet and was not instead a result of a disease

process. Anderson, 477 U.S. at 249 (plaintiff cannot rest on his allegations without any

significant probative evidence tending to support his claim).

       Turning to Mearin’s remaining claims, he alleged that he was not allowed to call

his witness at one of his misconduct hearings, and that he was entitled to review a

security videotape which he believes would have exonerated him of the charge against

                                              6
him. As explained by the Magistrate Judge, an inmate’s procedural due process rights,

including his right to call a witness, see Wolff v. McDonnell, 418 U.S. 539, 556 (1974),

are only triggered where the prison “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). Mearin’s disciplinary confinement of 90 days on one occasion and 60

days on another did not constitute an atypical and significant hardship. Therefore, his

liberty interests were not implicated and his right to the procedures set forth in Wolff was

not triggered.

       Mearin also raised two claims concerning his custody status. He claimed that,

because he suffers from two different infectious diseases, and because an infectious

disease is a basis for a single cell under the prison’s own policy, the defendants violated

his constitutional rights by failing to give him “Z” or single cell status. He claimed that

he once had “Z” status and that the defendants altered his institutional records to conceal

that fact. Mearin also claimed that the defendants falsified his institutional records to

reflect that his escape conviction was more recent than it really is, and thus no legitimate

(in his opinion) reason to subject him to “H” or level 4 security status. The defendants

were entitled to summary judgment on these claims. The Supreme Court has held that

the Fourteenth Amendment does not give a prisoner a liberty interest in a particular

housing location or custody level while under the jurisdiction of correctional authorities.

Meachum v. Fano, U.S. 215, 224-25 (1976); Montanye v. Haymes, 427 U.S. 236, 242

(1976); Olim v. Wakinekona, 461 U.S. 238 (1983). With respect to Mearin’s specific

health issues, the summary judgment record establishes that, although the defendants

                                              7
could have given Mearin a single cell under the existing policy, they carefully reviewed

his positive institutional history1 and determined that there was no need to place him in a

single cell even though he is HIV+ and suffers from hepatitis C. There was thus no

evidence that they were deliberately indifferent to his serious medical needs. See White

v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

       For the foregoing reasons, we will summarily affirm the order of the District Court

granting summary judgment to the defendants. Mearin’s motion for appointment of

counsel is denied.




1
  Mearin does not deny that he has lived with cellmates without any noteworthy issues for
a significant period of time.
                                             8
