BLD-145                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-4162
                                       ___________

                                   WILLIE L. DAVIS,
                                               Appellant

                                             v.

                             CHARLES E. SAMUELS, JR.
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                      (D.C. Civil No. M.D. Pa. No. 3-14-cv-00821)
                      District Judge: Honorable Robert D. Mariani
                      ____________________________________

         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
                                    March 26, 2015
              Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                             (Opinion filed: March 30, 2015)
                                       _________

                                        OPINION*
                                        _________
PER CURIAM

       Willie Davis appeals pro se from an order of the District Court dismissing his

complaint under 28 U.S.C. § 1915(e)(2)(B). Because we agree with the District Court



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
that Davis failed to state a claim upon which relief may be granted, we will summarily

affirm.

                                                   I.

          Davis is currently incarcerated in the special management unit at the United States

Penitentiary in Lewisburg, Pennsylvania. He filed the civil rights complaint at bar

against Charles E. Samuels, Jr., Director of the Federal Bureau of Prisons, alleging

constitutional violations that arose from prison practices and grievance procedures. See

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Specifically, he alleged that prison officials removed mattresses from the cells in

his unit for 16 hours per day, that he was denied medical treatment for conditions

(hemorrhoids and body aches) that arose from the removal of the mattresses, and that

Samuels failed to act favorably on his grievance regarding these issues. Davis sought

compensatory and punitive damages.

          The Magistrate Judge initially recommended that Davis’ claim be dismissed for

failure to state a claim upon which relief may be granted under Federal Rule of Civil

Procedure 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii) (“fails to state a claim on which

relief may be granted”). The Magistrate Judge, noting that Davis was proceeding pro se,

also recommended that Davis be given 20 days to amend his pleading, and the District

Court adopted the recommendation. Davis did not amend, and the Magistrate Judge’s

second report recommended that the District Court dismiss Davis’ case with prejudice “as

frivolous for failure to state a claim.” The District Court adopted the Magistrate Judge’s
                                               2
report, but its dismissal language referenced only § 1915(e)(2)(B)(i) (“frivolous or

malicious”). Davis filed a timely notice of appeal.

                                             II.

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

District Court’s dismissal of Warner’s complaint under § 1915(e). See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may summarily affirm the District

Court’s judgment if an appeal presents no substantial question. See 3d Cir. LAR 27.4

and I.O.P. 10.6.

                                            III.

       It is unclear whether the District Court intended to dismiss Davis’ claim under

§ 1915(e)(2)(B)(ii), as it suggested following the Magistrate Judge’s first report, or under

§ 1915(e)(2)(B)(i), as it indicated following the second report. Davis merely chose not to

amend his original complaint; he did not alter it in any way. Moreover, if the District

Court initially found Davis’ complaint to be frivolous under § 1915(e)(2)(B)(i), it would

not have needed to grant Davis the opportunity to amend. See Grayson v. Mayview State

Hosp., 293 F.3d 103, 112-13 (3d Cir. 2002)

       The answer to this question potentially affects our standard of review. See Ball v.

Famiglio, 726 F.3d 448, 462 & n.18 (3d Cir. 2013) (noting the potential of more

deferential review of §1915(e)(2)(B)(i) dismissals). Under the circumstances, we will

treat the District Court’s dismissal as one under § 1915(e)(2)(B)(ii), which we review de

novo. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000); see also Geiger v.
                                             3
Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (using, in a similar case, the more generous

standard of review).1

       The District Court properly dismissed Davis’ complaint. The legal standard for

dismissing a complaint for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as

that for dismissing a complaint pursuant to a motion filed under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. See Allah, 229 F.3d at 223. “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)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Blanket assertions and

conclusory statements by themselves do not suffice to show plausibility. See Renfro v.

Unisys Corp., 671 F.3d 314, 320 (3d Cir. 2011).

       A.     Dismissal of the claim against Samuels for acts done by prison personnel

       We begin with Davis’ claims against Samuels for harm allegedly done on-site by

prison officials and medical personnel. Davis did not allege that Samuels himself had

any involvement in the removal of mattresses from Davis’ unit or in the denial of Davis’

medical care, and a civil rights claim cannot be premised on a theory of respondeat

superior. See Iqbal, 556 U.S. at 675-77; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988). Davis, who – as we have noted – did not utilize his opportunity to amend his


1
 We note, of course, that we would reach the same result if we employed a more
deferential standard. Regardless of which ground Davis’ claim is dismissed on, it
appears to constitute a “enumerated strike ground” under § 1915(g), which may affect
Davis’ ability to bring in forma pauperis claims in the future. Ball, 726 F.3d at 462.
                                              4
complaint, has also not attempted to sue those directly responsible for the acts described

in his claim. His claim must therefore meet the test for supervisory liability that we

developed in Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).2 See Barkes v. First

Corr. Med. Inc., 766 F.3d 307, 330 (3d Cir. 2014).3 Here, Davis has not alleged any facts

suggesting that the practice of removing mattresses during the day created an

unreasonable risk of a constitutional violation or that Samuels would have been aware of

any such risk. The District Court thus correctly held that Davis failed to make a plausible

claim for relief against Samuels for harms he claims to have suffered at the hands of

prison officials.

       B.     Dismissal of the claim against Samuels for grievance response

       Davis’ claim that Samuels should be liable because he did not favorably resolve

Davis’ grievance also fails. First, we note that the Constitution does not even require a

prison to utilize a grievance procedure. 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.”); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Because prisoners have


2
  Under Sample, “to hold a supervisor liable because his policies or practices led to an
Eighth Amendment violation, the plaintiff must identify a specific policy or practice that
the supervisor failed to employ and show that: (1) the existing policy or practice created
an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that
the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4)
the injury resulted from the policy or practice.” Beers-Capitol v. Whetzel, 256 F.3d 120,
134 (3d Cir. 2001).
3
  Barkes affirmed the continuing viability of the Sample test following the Supreme
Court’s discussion of supervisory liability in Iqbal, 556 U.S. 662, 676. See Barkes, 766
F.3d at 320.
                                             5
no constitutional right to a grievance process, the tenor or existence of Samuels’ response

did not violate Davis’ constitutional rights. See Massey, 259 F.3d at 647.

       Further, as we suggested above, personal involvement is required to find a

constitutional violation. See Iqbal, 556 U.S. at 675-77; Rode, 845 F.2d at 1207-08

(holding that a plaintiff must establish that the defendants “have personal involvement in

the alleged wrongs [which] . . . can be shown through allegations of personal direction or

of actual knowledge and acquiescence”). Davis does not claim that Samuels personally

directed any unlawful conduct by on-site officials, but he does appear to claim that,

because he sent the grievance to Samuels’ office, Samuels knew of and acquiesced in

their conduct. This argument fails. In Rode we held that the filing of a grievance with

the governor’s office of administration was “simply insufficient” to prove that governor

had actual knowledge of an alleged action. Id. at 1208. In a similar way, merely sending

an individual grievance about an occurrence in one unit of a single prison to the office of

Samuels, the Director of the Federal Bureau of Prisons, in no way establishes that

Samuels actually knew about the grievance or acquiesced in the conduct described in it.

“Allegations of participation or actual knowledge and acquiescence . . . must be made

with appropriate particularity.” Id. at 1207. Here, Davis has made no attempt to allege

particular facts leading to the conclusion that Samuels personally knew of or acquiesced




                                             6
in any of the challenged conduct of subordinates. The District Court was therefore

correct to dismiss the claim regarding Davis’ grievance.4

                                              IV.

         For the reasons given in this opinion, we will affirm the judgment of the District

Court.




4
 Moreover, because Davis failed to amend his complaint during the District Court
proceedings, despite being given the opportunity to do so, we agree that the District Court
was correct to dismiss his claim with prejudice. See In re Westinghouse Sec. Litig., 90
F.3d 696, 703 (3d Cir. 1996).


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