                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-1698
                                       __________

                               ANTHONY E. PROCTOR,
                                            Appellant

                                             v.

      SGT. JAMES; S. ELLENBERGER; BOBBI JO SALAMON; DAVID LINK
       TAMMY FERGUSON; SGT. MCCULLOUGH; TIMOTHY GRAHAM;
    JENNIFER ROSSMAN; SHAWN WIGGINS; ROBIN LEWIS; LT. LUCIANO;
      C.O. HAMMERS; WILBERT MATHEWS; C. DANISON; D. SERGEANT
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3-16-cv-01666)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                January 24, 2019
       Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                              (Opinion filed: April 29, 2020)
                                      ___________

                                       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.
       Pro se appellant Anthony Proctor appeals from the District Court’s order

dismissing his amended complaint. For the reasons discussed below, we will affirm.

                                             I.

       Proctor filed a civil rights action against the defendants in August 2016. The

District Court dismissed two of Proctor’s claims with prejudice because they were barred

by the statute of limitations, as they involved incidents in May 2013 and June 2014. The

District Court dismissed the remaining claims without prejudice and directed the filing of

an amended complaint.

       In his amended complaint, Proctor, who describes himself as African American,

alleged that he was assaulted by a Caucasian inmate named Sherman in January 2015.

Proctor fought back until Sherman lay unconscious on the floor. Proctor alleged that

Sergeant McCullough witnessed the incident and failed to protect him, and later issued

him a misconduct for this incident despite the fact that Proctor was acting in self-defense.

Proctor also alleged that defendants Luciano, James, and Hammers either encouraged

Sherman to assault Proctor, or deliberately ignored their knowledge of Sherman’s plans

to assault Proctor.

       Proctor further alleged that Hearing Examiner Ellenberger improperly found

Proctor guilty of the misconduct without supporting evidence, and in retaliation for

Proctor’s refusal to sign a waiver allowing Ellenberger to view a surveillance video of the

incident. Proctor alleged that the defendants on the Program Review Committee (PRC)

failed to overturn the finding of guilt on administrative appeal because of his race. He
                                             2
was ultimately sanctioned to 60 days’ confinement in the Restricted Housing Unit

(RHU). Sherman received 120 days’ disciplinary confinement for his role.

        Proctor alleged that when he attempted to file his initial complaint in this case,

the defendants intercepted the prison mail bag containing the complaint. Finally, he

alleged that Unit Manager Danison and Unit Counselor Sergeant improperly provided

Proctor with an unfavorable parole recommendation. Proctor brought claims under 42

U.S.C. § 1983 that the defendants violated his First Amendment, Eighth Amendment, due

process, and equal protection rights.

       The defendants filed a motion to dismiss the amended complaint under Federal

Rule of Civil Procedure 12(b)(6). The District Court granted the motion and dismissed

the complaint for failure to state a claim. This appeal ensued.

                                               II.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s dismissal under Rule 12(b)(6), W. Penn Allegheny Health Sys., Inc.

v. UPMC, 627 F.3d 85, 97 (3d Cir. 2010), and ask whether the complaint contained

“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) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

                                              III.

       The District Court properly dismissed all of Proctor’s claims. First, Proctor has

argued only the merits of the claims that the District Court dismissed on statute of
                                               3
limitation grounds, despite this Court’s order directing the parties to brief the limitations

issue. Accordingly, Proctor has waived any argument regarding the timeliness of these

claims. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“an appellant's

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

appeal”). 1

       Proctor’s Eighth Amendment claims, based on Sherman’s assault of Proctor, lack

merit. “To state a claim for damages against a prison official for failure to protect from

inmate violence, an inmate must plead facts that show (1) he was incarcerated under

conditions posing a substantial risk of serious harm, (2) the official was deliberately

indifferent to that substantial risk to his health and safety, and (3) the official’s deliberate

indifference caused him harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012)

(citing Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hamilton v. Leavy, 117 F.3d 742,

746 (3d Cir.1997)).

       Proctor failed to make any plausible allegation that the defendants knew or should

have known that Sherman posed a risk to Proctor’s safety prior to the assault, or failed to

intervene after the assault began. Proctor’s complaint does not allege that there were any

previous problems between Proctor and Sherman, or that Sherman had any history of

violent assaults. Proctor vaguely alleges that Sergeant McCullough saw Sherman “lying

in wait” prior to the attack, but does not provide any factual details to support that


1
 Moreover, the record supports the conclusion that these claims were untimely. See
Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); 42 Pa. Cons. Stat. Ann. § 5524(2).
                                           4
allegation; and that allegation contradicts Proctor’s description of the attack as a surprise

“ambush.” Moreover, Proctor admits that Sergeant McCullough gave multiple orders to

cease fighting while other correctional officers rushed to the scene after the assault

commenced. Proctor’s allegation that defendants Luciano, James, and Hammers were

“surprised” to find Sherman unconscious after the fight is insufficient to support

Proctor’s conclusory assertion that these defendants knew of or supported any alleged

plan by Sherman to assault Proctor.2

       The District Court properly dismissed Proctor’s due process claims, as he failed to

allege that he was deprived of a protected liberty interest. Sandin v. Conner, 515 U.S.

472, 484 (1995). Proctor’s due process claims stem from his disciplinary sanction of 60

days’ confinement in the RHU. He does not allege that any conditions of that

confinement involved an atypical and significant hardship sufficient to create a protected

liberty interest. See id. We have held that significantly longer stays in restrictive

confinement did not implicate a prisoner’s liberty interests under otherwise similar

circumstances. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (seven months

in disciplinary confinement). To the extent that Proctor alleged due process claims based

on the PRC defendants’ handling of his grievances and appeals, those too fail because



2
 Proctor’s allegations that these defendants made improper remarks regarding the fight
are insufficient to state a claim. Some of these alleged remarks—including gleeful
comments regarding the harm Proctor inflicted upon Sherman—may be offensive. But
such verbal remarks, standing alone, do not violate the Eighth Amendment. See McBride
v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612
                                              5
access to prison grievance procedures is not constitutionally required. See Massey v.

Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence of a prison grievance

procedure confers no liberty interest on a prisoner.”).

       Proctor’s retaliation claims also lack merit. Proctor was required to allege that the

conduct provoking the alleged retaliation was constitutionally protected, that he suffered

some “adverse action” at the hands of the prison officials “‘sufficient to deter a person of

ordinary firmness from exercising his [constitutional] rights,’” and that the

constitutionally protected conduct was a substantial or motivating factor in the

defendants' conduct. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (alteration in

original) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). Proctor failed

to allege that he engaged in any constitutionally protected conduct prior to being issued

the misconduct or negative parole recommendation. To the extent that his refusal to sign

a waiver allowing Hearing Examiner Ellenberger to view a surveillance video of the

incident is constitutionally protected, Proctor failed to plausibly allege that Ellenberger’s

finding of guilt was motivated by this refusal, rather than by Proctor’s admitted fighting

with Sherman.

       Proctor’s equal protection claims fail because he did not allege that he “has been

treated differently from persons who are similarly situated.” Williams v. Morton, 343

F.3d 212, 221 (3d Cir. 2003); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439-40 (1985). There are no plausible allegations that any of the defendants


(7th Cir. 2000).                              6
engaged in intentional or purposeful discrimination, or that Proctor was treated

differently from similarly situated individuals on the basis of his race. While Proctor was

issued a misconduct following the altercation with Sherman, the amended complaint

indicates that both prisoners were issued disciplinary charges, and that Sherman received

double the amount of disciplinary custody time. Although the misconduct may have

adversely affected Proctor’s chance for parole, there is no allegation regarding any other

similarly situated prisoner’s parole consideration.

       Proctor’s claim that the defendants violated his right of access to the courts by

intercepting his legal mail also lacks merit. Proctor failed to plausibly allege that any

defendant was personally involved in the alleged confiscation. Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). Even if he had, to state an access to the courts

claim, the plaintiff must demonstrate that he suffered an actual injury, meaning his

“efforts to pursue a legal claim” were prejudiced. Oliver v. Fauver, 118 F.3d 175, 178

(3d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). Here, Proctor admits

that the intercepted complaint was eventually received by the District Court, was

voluntarily withdrawn by Proctor, and, in any event, raised the same claims as his

amended complaint. Therefore, Proctor did not allege an actual injury, and the dismissal

of his access to the courts claims was proper.

       Finally, under the circumstances of this case, the District Court properly denied

leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Accordingly, we will affirm the judgment of the District Court.
                                              7
