DLD-329                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 12-4564
                                   ___________

                                 LEROY FEARS,
                                        Appellant

                                         v.

    DR. JEFFREY A. BEARD, Ph. D., Secretary of the Pennsylvania Department of
Corrections; MR. LOUIS S. FOLINO; MR. SMITH, (First Name Unknown), Corrections
    Officer; MR. GRIM (First Name Unknown), Corrections Officer; MR. VICTOR
  SANTOYO, Corrections Officer, each Defendant is sued individually and within his
                                Official capacity
                    ____________________________________

                  On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                           (D.C. Civil No. 2-10-cv-00315)
                  District Judge: Honorable Terrence F. McVerry
                   ____________________________________

       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
                                   July 11, 2013

             Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed: July 25, 2013)
                                    _________

                                    OPINION
                                    _________
PER CURIAM

       Leroy Fears, an inmate proceeding pro se, appeals from the District Court‟s orders

granting the defendants‟ motions to dismiss and for summary judgment. For the reasons

set forth below, we will summarily affirm.

                                             I.

       The facts being well-known to the parties, we set forth only those pertinent to this

appeal. Fears is confined in the Capital Housing Unit at SCI-Greene, due to his sexual

assault and murder of a twelve year old boy. The Capital Housing Unit is a Level 5

housing unit. All Level 5 inmates are handcuffed on their way to and from the exercise

yard for security and safety reasons. Defendant Smith, one of the yard officers,

handcuffed Fears before he returned to his cell. According to Fears, Smith made his right

handcuff so tight that he was in excruciating pain. Fears, however, did not tell Smith. He

told defendant Grim, a sergeant, that his cuffs were too tight, but did not say that he was

in pain. Grim inspected the cuffs and did not observe any injury. Fears was then

escorted to his cell by two other officers. He did not mention anything to them about

being in pain.

       Fifteen minutes after Fears returned to his cell, Grim asked him if he needed

medical attention. Fears did not respond, and Grim left the area. Later, Fears started

experiencing pain in his right wrist and he was seen by two nurses. The medical report



                                             2
from that visit stated that he had a superficial scratch on his right wrist, which was treated

with antibiotic ointment and a bandage.

        Fears then filed a grievance pertaining to the incident. Defendant Santoyo

conducted an investigation and concluded that no excessive force was used when Fears

was handcuffed. Defendant Folino affirmed the denial of Fears‟ grievance.

        Fears filed a complaint pursuant to 42 U.S.C. § 1983, alleging violations of his

rights under the First, Fourth, and Eighth Amendments. After most of those claims were

dismissed, (Dkt. Nos. 21, 67), the defendants moved for summary judgment on Fears‟

remaining claims of excessive force and failure to intervene, (Dkt. Nos. 95-97). The

District Court granted their motion (Dkt. No. 117) and Fears timely appealed (Dkt. No.

119).

                                             II.

        Jurisdiction is proper under 28 U.S.C. § 1291. We may summarily affirm the

District Court‟s judgment if the appeal presents no substantial question. 3d Cir. L.A.R.

27.4 and I.O.P. 10.6.

        We turn first to the District Court‟s dismissal of Fears‟ claims.1 We exercise

plenary review over an order dismissing claims under Federal Rule of Civil Procedure


1
 Fears originally filed his complaint in state court. Because he failed to effectuate proper
service, defendants never answered his complaint, and only learned of it after he filed a
motion for a default judgment. The case was then removed to federal court, and the
Pennsylvania Department of Corrections (“DOC”) moved for dismissal due to lack of
                                              3
12(b)(6). Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). “Reviewing such an

order, we accept as true all allegations in the plaintiff‟s complaint as well as all

reasonable inferences that can be drawn from them, and we construe them in a light most

favorable to the non-movant.” Id. (citation omitted). A complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). This pleading standard “does not require „detailed factual allegations,‟

but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). “[A] complaint must contain sufficient factual

matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Id.; see

also Twombly, 550 U.S. at 556 (explaining that a plaintiff must “identify[] facts that are

suggestive enough to render [his claim] plausible.”) “[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.

       The District Court properly dismissed Fears‟ Eighth Amendment claim against

Grim based on a delay in medical care. Such a claim required a showing that Grim was

deliberately indifferent to Fears‟ serious medical needs. Estelle v. Gamble, 429 U.S. 97,

104 (1976). Deliberate indifference can be shown by a prison official “intentionally



proper service and because it was not a “person” for purposes of § 1983. For
substantially the same reasons given by the District Court, (Dkt. No. 21, pp. 3-4), the
claims against the DOC were properly dismissed.

                                                4
denying or delaying access to medical care . . . .” Id. at 104-05. The District Court

assumed, for the sake of argument, that Fears was suffering from a serious medical need.

(Dkt. No. 67, p. 9.) However, it determined that his factual allegations were insufficient

to state a plausible claim as to Grim‟s deliberate indifference. We agree. Fifteen minutes

after Fears returned to his cell, Grim asked him if he needed medical attention, and Fears

did not respond. (Dkt. No. 1-2, ¶ 16.) Further, Fears admitted that he was unaware of his

injury until after Grim left his cell. (Id. ¶ 18.) Grim could not have known that Fears

needed medical attention, let alone have intentionally delayed his access to it.2

       We agree with the District Court‟s dismissal of Fears‟ claims arising under the

First and Fourteenth Amendments. Fears alleged that he was denied the right to petition

the government for redress of grievances under the First Amendment, and that he was

denied due process under the Fourteenth Amendment by the prison grievance procedures.

Prisoners do not have a constitutional right to prison grievance procedures. See, e.g.,

Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (collecting cases). Nor do they

have a liberty interest protected by the due process clause in the grievance procedures.

See Antonelli v. Sheehan, 81 F.3d 1422, 1430 (7th Cir. 1996) (state‟s inmate grievance

procedures do not give rise to a liberty interest protected by the Due Process Clause). In


2
 We also agree that Fears failed to state a plausible claim for relief with respect to his
allegations that the administrative grievance process somehow subjected him to cruel and
unusual punishment in violation of his Eighth Amendment rights. (Dkt. No. 67, p. 11.)

                                             5
any event, Fears was not deprived of any process here. He admits that he availed himself

of the prison grievance procedures. Fears may not agree with the outcome of his

grievance, but his complaints were aired and assessed by the appropriate officials.

       The District Court also properly dismissed Fears‟ claims against Folino and

Santoyo. Fears alleged that their handling and denial of his administrative grievance

violated his First Amendment rights. In order for liability to attach under § 1983, a

plaintiff must show that a defendant was personally involved in the deprivation of his

federal rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (defendant

in a civil rights action must have personal involvement in the alleged wrongs; liability

cannot be predicated solely on the operation of respondeat superior). Fears‟ claims

against Folino and Santoyo were based solely on their involvement in the administrative

grievance process, in which he had no constitutional rights. Therefore, his allegations

were insufficient to state a plausible claim for relief.3 Finally, to the extent Fears

attempted to assert his claims as violations of substantive due process, the District Court

correctly dismissed them under the “more-specific provision rule” explained in United

States v. Lanier, 520 U.S. 259, 272 n.7 (1997). (Dkt. No. 67, pp. 15-16.)

       We turn now to the District Court‟s grant of summary judgment in favor of the

defendants. We exercise plenary review and “employ the same standard as applied


3
  The claims against Beard were also properly dismissed because Fears did not allege any
facts pertaining to him. (Dkt. No. 67, p. 13.)
                                               6
below.” DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004). That is, “[t]he court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “In reviewing the grant of summary judgment, we must affirm if the record

evidence submitted by the non-movant is merely colorable or is not significantly

probative.” DeHart, 390 F.3d at 267-68 (citation and internal quotation marks omitted).

       The District Court granted summary judgment in favor of the defendants on Fears‟

claim that Smith used excessive force against him while handcuffing him in the yard.

Specifically, the District Court determined that Fears‟ allegations, taken as true, only

established the de minimis use of force, which is insufficient to state a claim of excessive

force under the Eighth Amendment.4 (Dkt. No. 114, p. 7.) We agree. See Smith v.

Mensinger, 293 F.3d 641, 648 (3d Cir. 2002) (Eighth Amendment does not protect an

inmate against an objectively de minimis use of force). The “pivotal inquiry” in an

excessive force claim is “whether force was applied in a good-faith effort to maintain . . .

discipline, or maliciously and sadistically to cause harm.” Id. p. 649. The record does

not reflect that Fears was handcuffed for any reasons other than institutional safety and

security.



4
 In his argument in support of his appeal, Fears does not point out any specific facts that
would create a genuine issue and cause us to find that summary judgment was
improvidently granted.
                                              7
       We also agree with the District Court that there were no genuine issues of material

fact pertaining to Fears‟ failure to intervene claim against defendant Grim. (Dkt. No.

114, pp. 9-11.) An officer‟s failure to intervene can be the basis of an Eighth

Amendment violation under § 1983 if the officer, upon witnessing another‟s use of

excessive force against a prisoner, “had a reasonable opportunity to intervene and simply

refused to do so.” Smith, 293 F.3d at 650. However, an officer is only liable “if there is

a realistic and reasonable opportunity to intervene.” Id. at 651. Given Fears‟ failure to

show that Smith used excessive force when handcuffing him, his failure to intervene

claim must fail. Regardless, Grim inspected Fears‟ cuffs when he complained in the yard

and did not observe any injury that would have justified removing them before Fears

returned to his cell minutes later.

                                            III.

       There being no substantial question presented on appeal, we will summarily

affirm. 3d Cir. L.A.R. 27.4; I.O.P. 10.6




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