                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-3998
                                      ___________

                           RICHARD ALLEN HAMMONDS,
                                           Appellant

                                             v.

           C.O. JOHN HEADMAN; C.O. THOMAS HARRISON;
     SERGEANT DONALD BUCK, aka BUCC; SERGEANT TAIT LONG; LT.
     MRARCHI; SERGEANT CHRISTOPHER WIEDOW; SERGEANT KALCE
                ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3-11-cv-01666)
                     District Judge: Honorable Malachy E. Mannion
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 1, 2016

          Before: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: April 1, 2016)
                                     ___________

                                       OPINION*
                                      ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Richard A. Hammonds, a Pennsylvania inmate proceeding pro se, appeals from a

judgment entered after a jury trial in the United States District Court for the Middle

District of Pennsylvania. For the reasons that follow, we will affirm.

       As we write primarily for the parties, who are familiar with the facts and

procedural history, we will set forth only those facts necessary to our conclusions. In

2011, Hammonds filed a complaint against Department of Corrections (DOC) employees

under 42 U.S.C. § 1983. The District Court dismissed the complaint for failure to state a

claim under 28 U.S.C. § 1915A, and permitted Hammonds to file an amended complaint.

Hammonds’ first amended complaint contained numerous claims, including an allegation

that DOC employees used excessive force after discovering that he had escaped from his

cell in the restricted housing unit (RHU). According to Hammonds, the defendants

repeatedly punched him in the face, squeezed handcuffs around his wrists, and choked

him with a “spit mask.” Hammonds was then taken to the RHU dayroom, where he was

allegedly assaulted again. The initial altercation was recorded by security cameras, but

the incident in the RHU dayroom was not recorded because, pursuant to prison policy, a

camera in that area is turned on only during prisoner intakes.

       The case was referred to a Magistrate Judge, who recommended dismissing all but

the excessive force claim. Meanwhile, Hammonds moved for leave to file a second

amended complaint to raise claims that, inter alia, the defendants retaliated against him

by tampering with his food and by filing false misconduct reports because he had

                                             2
submitted a grievance. The District Court granted Hammonds leave to file an amended

complaint, but only to the extent that he raised a retaliation claim based on alleged food

tampering. The case proceeded to trial and, in September 2014, the jury returned a

verdict in favor of the defendants on both the excessive force claim and on the food

tampering retaliation claim.

       Hammonds timely appealed,1 and he raises three issues in his Informal Brief.2 We

have jurisdiction under 28 U.S.C. § 1291, and may affirm on any basis supported by the

record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

       Hammonds first complains about the District Court’s denial of leave to include in

his second amended complaint an allegation that DOC employees retaliated against him

by filing false misconduct reports.3 But even assuming that the District Court should


1
 Thereafter, Hammonds filed a motion for a new trial under Federal Rule of Civil
Procedure 60(b)(2). The District Court denied that motion, and Hammonds did not
appeal from that order. See Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996)
(holding that when a Rule 60(b) motion is filed after the notice of appeal from the
underlying judgment, a separate notice of appeal is required for appellate review of the
denial of the Rule 60(b) motion).
2
  We note that Hammonds presented no legal argument for several claims listed in the
Informal Brief’s “Statement of Issues Preserved for Review.” Even liberally construing
his Informal Brief, Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), we conclude
that his failure to argue these issues in his opening brief constitutes a waiver of them on
appeal. Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)
(“An issue is waived unless a party raises it in its opening brief, and for those purposes ‘a
passing reference to an issue . . . will not suffice to bring that issue before this court.’”).
3
 Although Hammonds frames his argument in terms of a challenge to an order granting a
motion to dismiss, see Appellant’s Br., 3, we will liberally construe his brief as arguing
                                               3
have permitted Hammonds to file his second amended complaint, we conclude that any

error was harmless because Hammonds’ conclusory allegations fail to plead the

necessary third element for the retaliation claim, i.e., that his grievance was a substantial

motivating factor in the filing of misconduct reports. See Rauser v. Horn, 241 F.3d 330,

333 (3d Cir. 2001).

       Hammonds claimed that three prison officials filed misconduct reports against him

because he had accused three different prison officials of wrongdoing. But neither

Hammonds’ second amended complaint, nor his Informal Brief on appeal, alleges any

temporal connection between his grievance and the misconduct reports. See Lauren W.

ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (stating that requisite

causal connection can be demonstrated by, inter alia, “an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory action”).

Furthermore, Hammonds nowhere indicates that the officials who filed the misconduct

reports were even aware of his grievance. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (holding that “[f]actual allegations must be enough to raise a right to relief

above the speculative level” to avoid dismissal); Baraka v. McGreevey, 481 F.3d 187,

195 (3d Cir. 2007) (stating that “we are not compelled to accept unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual allegation”



that the District Court improperly denied leave to amend his complaint. Dluhos, 321
F.3d at 369. We review the denial of a motion for leave to amend a complaint for abuse
of discretion. Garvin v. City of Phila., 354 F.3d 215, 219 (3d Cir. 2003).
                                              4
(internal citation and quotation marks omitted)). Accordingly, because Hammonds’

conclusory allegations fail to raise the required inference of a causal link between his

grievance and the filing of misconduct reports, he failed to state a retaliation claim.

       Hammonds also asserts that he was forced to proceed to trial without his exhibits.

This assertion is belied by the record. The transcript indicates that, on the first day of

trial, Hammonds used two of his exhibits, namely, pictures of a prison cell. At the

conclusion of testimony that day, counsel for the defendants noted that a box of

documents related to Hammonds’ case was still in his cell, stating that Hammonds “did

not indicate that he needed [the documents] to come with him.” The District Court

immediately confirmed that the material would be delivered to Hammonds by the

following morning. On the second day of trial, counsel for the defendant explained that

“staff at the Department of Corrections went to Inmate Hammonds’ cell at Smithfield last

night, located his box of legal materials, and it was delivered here this morning by the

time we started the proceeding.” Before the start of the final day of trial, Hammonds and

counsel for the defendants had a lengthy discussion concerning the admission of

numerous exhibits. Notably, Hammonds did not complain at trial that he lacked exhibits,

Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir. 1998) (“a party who fails to object to errors

at trial waives the right to complain about them following trial”), and he does not identify

in his brief on appeal any exhibits that he was unable to introduce, United States v.

Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to

                                              5
identify or argue an issue in his opening brief constitutes waiver of that issue on

appeal.”). Therefore, we conclude that this claim lacks merit.

       Finally, Hammonds challenges the District Court’s jury instruction, which

provided that, “[i]n this case, Mr. Hammonds claims the Defendants . . . used

unnecessary and excessive force against him when he escaped from his cell.” According

to Hammonds, the evidence did not demonstrate that he “escaped from his cell” and the

instruction misled the jury into believing that its evaluation of excessive force was

limited to an incident captured on prison security cameras. We review for abuse of

discretion whether jury instructions are misleading or inadequate. See Woodson v. Scott

Paper Co., 109 F.3d 913, 929 (3d Cir. 1997). “As on all occasions when we consider jury

instructions, we consider the totality of the instructions and not a particular sentence or

paragraph in isolation.” De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 366 (3d Cir.

2007) (citing United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)). We discern no

abuse of discretion here. Hammonds asserted that the instruction “totally disregard[ed]

the fact that [he] was taken to an off-camera area and beaten again.” But, in overruling

his objection, the District Court properly concluded that the instructions encompassed

“all the period of time that you were escaped and outside of that cell.” Indeed, nowhere

in the instructions did the District Court suggest that the excessive force claim was based

solely on the incident captured on the security cameras. In addition, the instructions

properly referred to Hammonds’ “escape.” The evidence demonstrated that Hammonds

                                              6
left his cell in the restricted housing unit without an escort, which is against prison policy.

Even if, as Hammonds claims, his cell door was “voluntarily opened” by a prison official,

his unauthorized decision to leave the cell is properly characterized as an escape.

Therefore, we conclude that Hammonds’ challenge to the jury instructions lacks merit.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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