CLD-342                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 13-3996
                                    ___________

                            CHRISTOPHER IWANICKI,
                                                             Appellant

                                          v.

     PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SECRETARY
 PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SUSAN HUESTON; DEB
  ALFORD; SCI MERCER; BRIAN THOMPSON; A. SHIOCK; JAMES OPPMAN;
         CAPT. WHITE; LT. BYERS; JOHN DOE, Hearing Examiner
                ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                       (W.D. Pa. Civ. No. 2-12-cv-01698)
                  Magistrate Judge: Honorable Cynthia R. Eddy
                   ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                 August 14, 2014

            Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                          (Opinion filed: August 26, 2014)
                                     _________

                                     OPINION
                                     _________


PER CURIAM

     Christopher Iwanicki, a state prisoner proceeding pro se, appeals from the District
Court’s order dismissing his complaint. We will affirm.

         Iwanicki was incarcerated at the State Correctional Institution in Mercer,

Pennsylvania (“SCI-Mercer”) when the events occurred that gave rise to his civil action.

While working as a legal aide in the prison law library, Iwanicki used a library computer

to write to Deb Alvord,1 a paralegal in the Office of Chief Counsel for the Department of

Corrections, complaining about certain library policies at SCI-Mercer. He used an inter-

library loan envelope to mail the letter. Iwanicki did this without authorization.2

         According to Iwanicki, his letter was wrongfully retrieved by a prison staff

member, and he was suspended from his job pending investigation. He was subsequently

charged with: (1) refusing to obey an order,3 (2) unauthorized use of the mail or

telephone, (3) lying to staff, and (4) theft of services. He was found guilty of the charged

misconduct after a disciplinary hearing. Sanctions were imposed, which Iwanicki

identified as a reprimand, the loss of his job, and an assessment for one envelope.

Iwanicki filed grievances regarding the matter, which apparently were denied.

         Iwanicki then filed suit under 42 U.S.C. § 1983, primarily alleging that the

Defendants retaliated against him for trying to exercise his rights of free speech and

access to the courts. The Defendants moved to dismiss the complaint for failure to state a
1
    Iwanicki incorrectly refers to Defendant Alvord as “Alford.”
2
 Iwanicki maintains that the prison librarian was aware of his actions, but a misconduct report
notes that he mailed the letter without her knowledge.
3
  It appears that Iwanicki was informed when hired that he could not access the library computers
for personal use. On appeal, he maintains that his actions were authorized by a Department of
Corrections policy, but he fails to identify any provision that permits personal use of a library
computer.




                                                2
claim. After the parties consented to proceed before a United States Magistrate Judge,

the motion to dismiss was granted. In addition to concluding that the claims were subject

to dismissal for various reasons, the Magistrate Judge also noted that Iwanicki had

refused the opportunity to amend his complaint, and that, in any event, amendment would

be futile. This appeal followed.

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

over the decision to grant the motions to dismiss. Allah v. Seiverling, 229 F.3d 220, 223

(3d Cir. 2000). When considering a motion to dismiss a complaint, a court must view the

factual allegations as true and dismiss only if the complaint does not allege “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). We may affirm on any ground supported by the record. See

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

       To establish liability under 42 U.S.C. § 1983, a plaintiff “must establish that [he]

was deprived of a federal constitutional or statutory right by a state actor.” Kach v. Hose,

589 F.3d 626, 646 (3d Cir. 2009). We agree that dismissal of the claims was appropriate

as to Defendants Wetzel, Hueston, Thompson, White, Alvord, Department of

Corrections, and SCI-Mercer for substantially the reasons given by the Magistrate Judge.4


4
  The Magistrate Judge dismissed the claims against the individual defendants because Iwanicki
failed to allege sufficient personal involvement to establish liability under section 1983.
Iwanicki’s basic claim was that disciplinary proceedings were brought in retaliation for his letter.
His sole allegation against Wetzel (Secretary of the Department of Corrections), Thompson
(Superintendent of SCI-Mercer), Hueston (former Chief Counsel for the Department), and
Alvord (paralegal for the Department) was that they were notified of the grievances he filed
regarding the retaliation. But mere notification of a grievance does not allege sufficient personal
involvement because it does not establish that the Defendants personally directed or acquiesced
in the retaliation. See Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). To the




                                             3
The claims regarding the other Defendants require fuller discussion.

       The remaining Defendants are SCI-Mercer staff involved in the investigation, the

disciplinary proceedings, and the grievance review process. Iwanicki alleged that

Principal Oppman violated 18 U.S.C. § 1702 (obstruction of correspondence) and 18

U.S.C. § 1708 (theft or receipt of stolen mail) by “retrieving” the letter he sent to the

Office of Chief Counsel. This claim is undermined by Iwanicki’s exhibits: (1) the

misconduct report indicates that he used the institutional mail system instead of the

United States Postal Service (“USPS”) to mail his letter, and (2) a letter from the USPS

shows that he was informed that mail service within a prison does not fall under the

authority of the USPS. Iwanicki thus failed to state a claim for violation of federal law

concerning the mail because he did not use the mail. To the extent that the complaint can

be read to make a free speech claim based on the right to use the mail, and to the extent

the right can be asserted under the circumstances here,5 a single instance of interference



extent that Iwanicki was relying on the supervisory role of most of these Defendants – including
Captain White, whose alleged approval of the investigation and misconduct report appears to rest
only on the fact that the misconduct report had to be reviewed and signed by the ranking
correctional officer on duty – a theory of respondeat superior is not sufficient for liability under
section 1983. Id. at 1207. Finally, the Magistrate Judge appropriately dismissed the claims
against the Department and SCI-Mercer. The claims are barred by the Eleventh Amendment
because Congress has not abrogated the States’ immunity from section 1983 claims, Quern v.
Jordan, 440 U.S. 332, 345 (1979), and Pennsylvania has not consented to suit in federal court.
Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Furthermore, the Department and SCI-
Mercer are not “persons” within the meaning of § 1983. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 64 (1989).
5
  A prisoner’s right to use the mail is usually discussed in terms of personal mail to and from
those outside the prison system. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). In
contrast, Iwanicki used an inter-library loan envelope to send the letter through institutional mail.
This implies that there was no outward indication, by design, that the letter was personal or legal
inmate correspondence.




                                                 4
with mail is usually insufficient to constitute a First Amendment violation, and Iwanicki

has alleged nothing that suggests that this general principle should not apply here. See,

e.g., Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

       Iwanicki also claimed that Oppman started the investigation in retaliation for

Iwanicki’s exercising his right to free speech and access to the court. For a retaliation

claim, a prisoner must show that: (1) he engaged in a constitutionally protected activity,

(2) he suffered adverse action by prison officials “sufficient to deter a person of ordinary

firmness from exercising his [constitutional] rights,” and (3) the protected activity was a

substantial or motivating factor in the official’s decision to take adverse action. Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2001) (alteration in original) (quoting Allah, 229 F.3d

at 225). As we previously noted, it is questionable whether the correspondence at issue

here is constitutionally protected. Nevertheless, it is clear that Iwanicki failed to show

that the fact that he tried to complain about library policies was a substantial or

motivating factor behind the investigation. His allegation that it was is merely

conclusory. Moreover, he undermined this conclusory allegation by stating in his

complaint that the investigation was started “for security rationale [sic].” In addition, the

misconduct report indicated that Iwanicki admitted to using the library computer and

institutional mail without the librarian’s knowledge. As a result of the investigation,

Iwanicki was charged with unauthorized use of the mail and refusing to obey an order,

not with any misconduct related to the substance of his intercepted letter. In light of the

sparse nature of the allegation against Oppman, which is undercut by another statement in




                                           5
the complaint and by the misconduct report, we conclude that Iwanicki did not present

sufficient factual matter to plausibly show that the decision to investigate him for

possible infractions was pretextual. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“a

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement’”) (second alteration in original) (quoting Twombly, 550 U.S. at 557).6

       Iwanicki’s allegation against Lieutenant Byers is limited to complaining that Byers

took longer to complete the investigation and misconduct report than allowed by

regulations. The Magistrate Judge concluded that Iwanicki failed to state a claim

because Byers complied with applicable regulations by explaining the reason for the

delay. We note that the claim must be dismissed because it is based on state law, not on

the Constitution or federal law as required by section 1983. See Kach, 589 F.3d at 646.

       Turning to the disciplinary proceedings, Iwanicki claimed that the Hearing

Examiner violated his constitutional rights by convening an unlawful criminal tribunal

and forcing him to enter a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25

(1970). He also alleged that he was denied equal protection of the law and that the

disciplinary proceedings were conducted in violation of “Administrative

Practice/Procedure Law and any Pa. D.O.C. Policy.” It is well-established that “[p]rison

disciplinary proceedings are not part of a criminal prosecution, and the full panoply of

rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418


6
  Iwanicki’s retaliation claims concerning the decision to charge him with misconduct and the
finding of guilt are subject to dismissal for the same reason: it is questionable whether he was
engaged in constitutionally protected conduct and he failed to do more than allege that any such
conduct was a motivating factor for the proceedings.



                                             6
U.S. 539, 556 (1974). Accordingly, Iwanicki failed to state a claim insofar as he

challenged the nature of the disciplinary proceedings or his guilty plea. As for the equal

protection claim, we agree with the Magistrate Judge that it was not sufficiently pled

because Iwanicki made no allegation that he received treatment different from that

received by similarly situated individuals. See Phillips v. Cnty. of Allegheny, 515 F.3d

224, 244-45 (3d Cir. 2008) (to state an equal protection claim, a plaintiff must allege that

he was treated differently from others similarly situated; “general accusations and the

invocation of the Equal Protection Clause are not enough.”)

       The Magistrate Judge liberally construed Iwanicki’s allegation regarding the

conduct of the proceedings as a procedural due process claim. In general, to prevail on

such a claim, a plaintiff must show the deprivation of a protected liberty or property

interest that occurred without due process of law. See Burns v. Pa. Dep’t of Corr., 544

F.3d 279, 285 (3d Cir. 2008). Prisoners typically have a protected liberty interest only in

“freedom from restraint” that “imposes atypical and significant hardship . . . in relation to

the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). State

regulations do not create a liberty interest unless they confer a right to freedom from

restraint as described in Sandin. See Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir.

1997). Because Iwanicki relies on unspecified “administrative law” and prison policies,

he has failed to meet the threshold requirement of alleging a protected liberty interest.

Nonetheless, to the extent he challenges the sanctions imposed as a result of an allegedly

fraudulent misconduct report, we agree with the Magistrate Judge that the allegations fall

short of stating a due process violation. We have held that an allegedly fraudulent




                                         7
misconduct report and the related sanction of disciplinary confinement for seven months

did not violate a protected liberty interest where there was no evidence that the

proceedings were instituted solely in retaliation for the exercise of a constitutional right.

See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002). Here, Iwanicki failed to

state a claim for retaliation, and the sanctions he alleged were imposed upon him after the

hearing – loss of his prison job,7 a reprimand, and assessment for one envelope – do not

rise to the level of an atypical or significant hardship. Accordingly, the due process claim

against the Hearing Examiner was properly dismissed.

       Turning to grievance review, Iwanicki alleged that Defendant Shiock improperly

rejected a grievance and “obstructed [him] from contact with appropriate Federal/State

authorities to report criminal violations at law.” To put the allegations in context,

Iwanicki filed a grievance with Shiock complaining that “unknown persons” took his

mail for the “private use” of starting disciplinary proceedings against him. He requested

contact with federal and state officials to file a criminal complaint. He did not state how

the grievance was resolved, but he included with the complaint a subsequent “Inmate’s

Request to Staff Member” in which he accused Shiock of “obstructing contact with law

enforcement to report criminal conduct” at the behest of the “party to this conduct.”

Shiock responded by advising Iwanicki that his request needed to be submitted in the

proper format if it was meant to appeal the handling of his grievance.

       The Magistrate Judge dismissed the claim because prisoners do not have a


7
  As the Magistrate Judge noted, there is no independent liberty or property interest in a prison
job. See James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989).




                                             8
constitutional right to prison grievance procedures. See, e.g., Massey v. Helman, 259

F.3d 641, 647 (7th Cir. 2001) (collecting cases). We agree. Violations of grievance

procedures do not give rise to a cognizable claim under section 1983. See Hoover v.

Watson, 886 F. Supp. 410, 418-19 (D. Del. 1995), aff’d, 74 F.3d 1226 (3d Cir. 1995). To

the extent that Iwanicki claimed that Shiock’s alleged mishandling of his grievance was

part of the institutional retaliation for his letter to the Office of Chief Counsel, the claim

is also subject to dismissal. As noted, it is questionable whether Iwanicki was engaged in

constitutionally protected activity. Moreover, Iwanicki failed to plead anything

suggesting that the mishandling of his grievance was sufficiently adverse to deter him

from exercising his rights. See Rauser, 241 F.3d at 333. As for his claim that Shiock

“obstructed” him from contacting government officials to report criminal activity, we

agree with the Magistrate Judge that he did not allege any facts suggesting that Shiock

prevented him from making such contact. He merely presented an accusation.

Accordingly, the complaint did not state a plausible claim for relief. See Iqbal, 556 U.S.

at 678 (noting that the pleading standard “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.”)

       Finally, Iwanicki alleged that the Defendants violated his Eighth Amendment

rights by terminating his prison job, changing his custody level, and denying him parole.

We agree with the Magistrate Judge that Iwanicki failed to state a claim because the

complaint is devoid of any detail or supporting facts regarding his custody status or any

parole decisions. Furthermore, the loss of the prison job does not state a claim under the

Eighth Amendment because it does not constitute a viable assertion of unnecessary and




                                            9
wanton infliction of pain devoid of penological justification. See Hope v. Pelzer, 536

U.S. 730, 737 (2002).

       In his notice of appeal, Iwanicki makes the general argument that the Magistrate

Judge used the wrong legal standards and an incorrect view of the facts to dismiss his

complaint. Our opinion describes the legal basis for affirming the Magistrate Judge’s

decision. However, one of Iwanicki’s assertions warrants additional comment. He

claims that the Magistrate Judge erroneously based her decision on “ a non-existent

amended complaint.” This is simply not true. The opinion below explained that the

amended complaint was not considered because Iwanicki represented to the court that he

did not want it to be construed as such and sought to withdraw it. Iwanicki’s express

disavowal of any intention to amend his complaint further supports the Magistrate

Judge’s dismissal without leave to amend.

       Also before us is Iwanicki’s “Petition for Emergency Injunction with Immediate

Financial Ability to Pay Hearing Under Due Process.” Iwanicki sought and was granted

leave to proceed in forma pauperis on appeal. Nevertheless, he now challenges the

Clerk’s order requiring him to pay the full appellate filing and docketing fees. He argues

that he is being “taxed twice’ under the in forma pauperis statute, 28 U.S.C. § 1915, when

he is only obligated to pay the fee once in the District Court. He is wrong. The statute

“plainly requires a prisoner to pay the fees if he ‘brings a civil action or files an appeal

. . . .’” Porter v. Dep’t of Treasury, 564 F.3d 176, 180 (3d Cir. 2009) (quoting 28 U.S.C.

§ 1915(b)(1)). A prisoner’s legal obligation to pay the fee is incurred by the filing of the

notice of appeal in forma pauperis. See Hall v. Stone, 170 F.3d 706, 707 (7th Cir. 1999).




                                            10
We have no authority to waive the appellate filing fee, and in forma pauperis status does

not result in a waiver of the fee. See Porter, 564 F.3d at 180. Instead, it allows the

prisoner to pay the fee in installments when he has accrued sufficient funds in his prison

account. Id.

       For the foregoing reasons, we will summarily affirm the Magistrate Judge’s order

dismissing Iwanicki’s complaint and we will deny his petition for a hearing regarding his

ability to pay the appellate filing fee. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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