                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1006
                                       ___________

                                 JOSE M. FELICIANO,
                                               Appellant

                                             v.

           THOMAS DOHMAN, Major; WILLIAM F. RADLE, Lieutenant;
        SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
         LORENZO, Deputy, in Defendants Individual and Official Capacities;
                                SGT. CURAN
                 ____________________________________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 2:12-cv-04713)
                    District Judge: Honorable Ronald L. Buckwalter
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 1, 2016
               Before: FISHER, SHWARTZ and COWEN, Circuit Judges

                              (Opinion filed: April 1, 2016)
                                     ___________

                                        OPINION*
                                       ___________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Pro se appellant Jose M. Feliciano (“Feliciano”), an inmate at SCI-Dallas, appeals

the District Court’s judgment in favor of defendants on all of Feliciano’s claims. For the

reasons discussed below, we will affirm.

       Feliciano brought a civil rights complaint in the District Court against numerous

correctional officials at SCI-Graterford, where Feliciano was previously incarcerated, for

constitutional violations under the First, Fifth, and Eighth Amendments. In particular,

Feliciano raised a First Amendment claim of denial of access to the courts, a First

Amendment retaliation claim, a Fifth Amendment retaliation claim, and an Eighth

Amendment claim.

       The key allegations were that the defendants retaliated against Feliciano for filing

a sexual harassment complaint against a prison-school counselor, Theresa Snyder; and

then further retaliated against him for refusing to cooperate in an investigation. In

particular, Defendant Officers Dohman and Radle brought Feliciano in for questioning,

and confronted him with the accusations that he was fraternizing with Corrections Officer

Ballard, and that Ballard was bringing drugs into the prison that Feliciano would then

deal to other inmates. According to Feliciano, Dohman and Radle told him that he would

be transferred far away from his family if he did not confirm their suspicions about

Ballard. And after Feliciano refused to cooperate, he was indeed placed into

administrative custody and eventually transferred to SCI-Greene.


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       After the defendants moved to dismiss the complaint for the failure to state a

claim, the District Court dismissed Feliciano’s access-to-the-courts claim, plus the claims

against the defendants in their official capacities, but allowed the other claims to proceed

through discovery. After the defendants moved for summary judgment, the District

Court held that Feliciano’s remaining claims were time-barred, and that even if Feliciano

had filed his lawsuit on time, his claims failed on the merits. This appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions

regarding both summary judgment and dismissal for failure to state a claim under the

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826

(3d Cir. 2011). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir.

2006). We may affirm on any basis that the record supports. See Fairview Twp. v. EPA,

773 F.2d 517, 525 n.15 (3d Cir. 1985).

       Feliciano’s notice of appeal refers to the District Court’s dismissal, following the

defendants’ Federal Rule of Civil Procedure 12(b)(6) motion, of Feliciano’s claim of the

denial of access to the courts. However, Feliciano has not set out any argument
                                                3
concerning that claim in his brief on appeal and has thus forfeited that point on appeal.

See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). In any event, we agree

with the District Court that Feliciano did not successfully plead all of the elements of

such a claim because he failed to allege that he suffered an “actual injury”—such as the

loss of an opportunity to file a particular nonfrivolous claim—as a result of the alleged

disruption of his legal materials. See Lewis v. Casey, 518 U.S. 343, 355 (1996); Oliver

v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997).

       Turning to the District Court’s summary judgment ruling, we agree that

Feliciano’s claims fail as a matter of law. First, we consider Feliciano’s retaliation claims

brought under the First and Fifth Amendments. To sustain a retaliation claim, an inmate

must demonstrate that: (1) he engaged in constitutionally protected conduct; (2) he

suffered adverse action; and (3) the constitutionally protected conduct was “a substantial

or motivating factor” for the adverse response. See Carter v. McGrady, 292 F.3d 152,

157-58 (3d Cir. 2002); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). If the prisoner

makes a prima facie showing that his constitutionally protected conduct was a motivating

factor in the decision to discipline, the defendant then has the burden of showing that the

same disciplinary action would have been taken even in the absence of the protected

activity. See Rauser, 241 F.3d at 334.

       The undisputed record shows that there is no genuine issue of material fact that the

defendants would have taken the same actions regardless of any protected activity on

Feliciano’s part. It is true that the record shows that Feliciano filed a grievance against
                                              4
Theresa Snyder, that he later refused to cooperate in the investigation against Officer

Ballard, and that he was thereafter placed into administrative custody and transferred to

another facility. The defendants, however, have offered unrebutted evidence to show that

Feliciano would still have suffered that purported adverse action regardless of whether he

engaged in constitutionally protected activity. See id.

       In particular, the record shows that the investigation into the relationship between

Ballard and Feliciano began long before Feliciano raised his sexual-harassment

allegations in November 2008, and long before Feliciano was interrogated in December

2008. The facts concerning the relationship that prison officials discovered, via both

confidential tips and surveillance, were alone sufficient to justify placement in

administrative custody pending transfer and the eventual transfer to SCI-Greene in

support of the legitimate penological interest of prison security. See, e.g., Carter, 292

F.3d at 159 (affirming summary judgment in favor of defendants on a retaliation claim

when “the quantum of evidence” concerning the prisoner’s misconduct showed that he

would face disciplinary action regardless of his protected activity); cf. also Henderson v.

Baird, 29 F.3d 464, 469 (8th Cir. 1994) (concluding that because the finding of guilt in

the inmate’s disciplinary hearing was based on “some evidence,” that finding “essentially

checkmates his retaliation claim”). Given the undisputed summary judgment evidence, a

reasonable finder of fact would have to conclude that the defendants would have made

the same decision regardless of Feliciano’s protected conduct. That forecloses

Feliciano’s retaliation claims based on the First and Fifth Amendments.
                                              5
       That leaves Feliciano’s Eighth Amendment claim, which has been difficult to

understand throughout the litigation. The District Court dismissed that claim on the

merits because Feliciano’s deposition testimony described the claim as a supervisory

liability claim based on the denial of access to the courts; and on the ground that mere

verbal threats, without more, could not underlie an Eighth Amendment claim. On appeal,

Feliciano now characterizes this claim as an Eighth Amendment retaliation claim.

According to Feliciano, the claim is based on the theory that when Dohman and Radle

pressured Feliciano to implicate Officer Ballard, that pressure amounted to cruel and

unusual punishment because other inmates might harm Feliciano if they learned that he

was a confidential informant.

       “[A] prison official may be held liable under the Eighth Amendment for denying

humane conditions of confinement only if he knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to take reasonable measures to abate it.”

Farmer v. Brennan, 511 U.S. 825, 847 (1994). The substantial risk of serious harm

against which prison officials must protect inmates includes “violence at the hands of

other prisoners.” Id. at 833. Courts have held that publicly labelling an inmate as a

confidential informant could trigger an Eighth Amendment claim. See, e.g., Northington

v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992). The record here shows, however, that

although Feliciano was asked to implicate Office Ballard, he was not asked to do so

publicly and was not otherwise put at risk of identification as an informant. To the extent

an inmate might have a constitutionally protected interest in not being labelled as an
                                             6
informant, the record here shows that there is no genuine issue of material fact that

Feliciano did not face a substantial risk of being so labelled. Under these circumstances,

the District Court was correct to grant summary judgment in favor of the defendants on

Feliciano’s Eighth Amendment claim.

       Finally, we conclude that the District Court did not abuse its discretion in its

rulings on Feliciano’s requests to take two depositions. Neither deposition would have

addressed the defendants’ evidence concerning whether Feliciano’s protected conduct

caused the adverse actions that Feliciano endured, or whether the defendants would have

taken those actions in the absence of any protected conduct.

       Consequently, we will affirm the District Court’s judgment.




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