DLD-118                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 15-2121
                                  ___________

                               RONALD BANKS,
                                         Appellant

                                        v.

   GERALD L. ROZUM, Superintendent; DANIEL GEHLMANN, Deputy Supt. for
Facilities Mgmt.; BARRY GRUBB, Major; MELLISA HAINESWORTH, Major of Unit
   Mgmt.; LT. STEVE SIMOSKO, Captain; ROBERT SNYDER, Captain; ROBERT
  BAKOS, Lieutenant; EDWARD MULLIGAN, Unit Manager; KATHY BELL, Unit
 Manager; RANDY J. PRITTS, Correctional Officer; RANDY BARKMAN, Sergeant;
 ED CWIK, Employment Coordinator; R.D. HARKCOM, Correctional Officer; W.F.
  KALASKY, Correctional Officer; MICHAEL COLLEMACINE, Captain; JOSEPH
                           DUPONT, Hearing Examiner
                     ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                          (D.C. Civil No. 3-14-cv-00027)
                   District Judge: Honorable Joy Flowers Conti
                   ____________________________________

 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
                                  January 22, 2016

     Before: CHAGARES, GREENAWAY, JR., and SLOVITER, Circuit Judges

                        (Opinion filed: February 17, 2016)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Ronald Banks, proceeding pro se and in forma pauperis, appeals from the District

Court’s order dismissing his complaint for the failure to state a claim. Because the appeal

presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4;

I.O.P. 10.6.

                                              I.

       As we write primarily for the parties, who are familiar with this case, the

following summary suffices. Banks’ prolix and repetitive complaint contains 397

paragraphs and 139 exhibits, which Banks incorporated into the complaint. The

complaint alleged that the defendant employees at SCI-Somerset, where Banks was

previously confined, committed multiple violations of his constitutional rights.

       In brief: first, Banks alleged that searches of his cell deprived him of his property

(a confiscated radio) without due process, denied him access to the courts (through the

disruption and confiscation of legal papers), and amounted to unlawful retaliation for

constitutionally protected litigation activity. Second, Banks alleged that two pat-down

searches were sexual assaults that amounted to cruel and unusual punishment. Third,


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

                                              2
Banks complained of two job-related matters: the alleged exposure to bodily fluids while

cleaning showers, and the loss of his job when he was transferred to a different cell block.

Fourth, Banks alleged that he was denied basic personal hygiene items, which amounted

to a deprivation of life’s minimal necessities. On top of these factual predicates, Banks

alleged that the defendants were together engaged in a conspiracy to commit these

constitutional violations. Finally, Banks alleged that various defendants were liable as

supervisors for failing to prevent these acts.

       The defendants moved to dismiss the complaint for the failure to state a claim

upon which relief could be granted. Banks filed a 28-page response brief with eight

exhibits. The Magistrate Judge then filed a Report and Recommendation that

recommended dismissing Banks’ complaint with prejudice. Banks filed 87 pages of

objections. The District Court adopted the Report and Recommendation together with its

own supplemental memorandum opinion as the opinion of the court, and dismissed

Banks’ complaint with prejudice after concluding that further amendment would be

futile. This appeal followed.

                                                 II.

       Our review of the District Court’s dismissal order is plenary. Huertas v. Galaxy

Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011). On issues for which a party failed to file

timely objections to the Magistrate Judge’s report and which the District Court did not

subject to de novo review, we instead review the District Court’s decision for plain error.

Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011). Under that standard, we reverse
                                                 3
only if there is an error that affects a party’s substantial rights in a way that impacts the

fairness, integrity, or public reputation of judicial proceedings. Nara v. Frank, 488 F.3d

187, 197 (3d Cir. 2007).

       “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.’ A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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

Twombly, 550 U.S. 544, 556, 570 (2007)). “Determining whether a complaint states a

plausible claim to relief will . . . be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Id. at 679.

        We may summarily affirm a District Court’s order if the appeal presents no

substantial question, see 3d Cir. L.A.R. 27.4; I.O.P. 10.6, and we may rely on any ground

that the record supports, see Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

                                              III.

       A pro se plaintiff’s pleadings are liberally construed. See Dluhos v. Strasberg, 321

F.3d 365, 369 (3d Cir. 2003). But even under that relaxed standard, there is no

substantial question that Banks’ complaint failed to state a claim largely for the reasons

explained by the District Court and the Magistrate Judge. See Fantone v. Latini, 780

F.3d 184, 193 (3d Cir. 2015) (holding that a pro se complaint must still meet Twombly

and Iqbal’s plausibility standard).
                                               4
                                             A.

       Banks failed to state any constitutional claim concerning the searches of his cell

and any property that was allegedly confiscated or damaged in those searches. The facts

that Banks pleaded, including the facts in the grievance forms that he attached as exhibits

to his complaint, state that adequate state post-deprivation remedies were available to

him. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Tillman v. Lebanon Cty. Corr.

Facility, 221 F.3d 410, 422 (3d Cir. 2000). Relatedly, no due process violation arose

from the misconduct charge that Banks received after prison officials said he had

tampered with his radio, even though Banks alleges that the charge was based on false

information. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (“[S]o long as

certain procedural requirements are satisfied, mere allegations of falsified evidence or

misconduct reports, without more, are not enough to state a due process claim.”).

       That said, under some circumstances a false misconduct report can violate an

inmate’s First Amendment rights where it is in retaliation for an inmate’s resort to legal

process. Id. at 653. Such circumstances were not pleaded in Banks’ complaint. To

allege retaliation, the inmate must plead “(1) constitutionally protected conduct, (2) an

adverse action by prison officials sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights, and (3) a causal link between the exercise of his

constitutional rights and the adverse action taken against him.” Mitchell v. Horn, 318

F.3d 523, 530 (3d Cir. 2003) (internal quotation and citation omitted). Here, the alleged

actions that Banks pleaded he endured were not sufficiently adverse to state a claim. See
                                              5
Brightwell, 637 F.3d at 194.1

       Furthermore, those searches of Banks’ cell, and the alleged disruption and partial

confiscation of Banks’ legal materials that resulted therefrom, fare no better as support

for a potential First Amendment access-to-the-courts claim. Banks’ complaint fails to

plead sufficient facts to allege the “actual injury” element of such a claim. See Peterkin

v. Jeffes, 855 F.2d 1021, 1040 (3d Cir. 1988).

                                             B.

       Turning to the two pat-down searches, we also conclude that Banks’ allegations

fail to state a constitutional claim. “A corrections officer’s intentional contact with an

inmate’s genitalia or other intimate area, which serves no penological purpose and is

undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate,

violates the Eighth Amendment.” Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015).

“[A] single incident of sexual abuse, if sufficiently severe or serious, may violate an

inmate’s Eighth Amendment rights no less than repetitive abusive conduct.” Id. Here,

the scope of the searches that Banks describes in his complaint, and as further referenced

in the grievance materials that Banks’ included, did not go beyond the scope needed to

support the legitimate penological purpose of prison security or constitute a sexual


       1
         Also, Banks’ pleadings effectively allege that the prison officials would have
eventually searched Banks’ cell and confiscated Banks’ radio—regardless of any
retaliatory motive—because the grievance materials that Banks incorporated into his
complaint state a factual basis for the radio-tampering charge. See Carter v. McGrady,
292 F.3d 152, 159 (3d Cir. 2002).

                                              6
assault. Cf. id. at 258-59 (reversing dismissal for failure to state a claim when the

manner, timing, and stated reason for a search all indicated it was pretext for a desire for

sexual gratification or for humiliation of the prisoner). Nor did the facts that Banks

alleged bring the searches outside the scope of reasonable search practices that would rise

to the level of a Fourth Amendment violation. See Florence v. Bd. of Chosen

Freeholders, 566 U.S. ____, ____, 132 S. Ct. 1510, 1517 (2012); Terry v. Ohio, 392 U.S.

1, 17 n.13 (1968) (describing a routine pat-down as involving “the groin and area about

the testicles”); cf. also Bradley v. United States, 299 F.3d 197, 201 (3d Cir. 2002). We

thus agree with the District Court’s conclusion that the pat-down searches Banks

received, at least as alleged in Banks’ complaint, did not state a claim for a violation of

his constitutional rights.

                                             C.

       The job-related incidents that Banks described in his complaint also do not

plausibly allege any constitutional violation. Banks did not object to the Magistrate

Judge’s recommendation to dismiss the claims based on those incidents, so we review the

dismissal of those claims for plain error only. See Brightwell, 637 F.3d at 193.

       First, the limited exposure to bodily fluids as described in Banks’ complaint and

attached exhibits, allegedly as a result of inadequate safety equipment while cleaning, is

insufficient to state a claim for an Eighth Amendment conditions-of-confinement

violation. The Eighth Amendment is violated only where, viewing the totality of the

conditions in the prison, the inmate’s conditions of confinement, alone or in combination,
                                              7
deprive him of the minimal civilized measure of life’s necessities. Tillery v. Owens, 907

F.2d 418, 426-27 (3d Cir. 1990). Here, Banks alleges only generally that he was exposed

to bodily fluids while engaged in his cleaning job, not that his skin ever came in direct

contact with such fluids or that he suffered any injury or disease exposure. No

constitutional violation is stated based on these allegations. See Farmer v. Brennan, 511

U.S. 825, 847 (1994) (“[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.”).

       Banks also alleged that, after complaining about these allegedly unsanitary

working conditions, he was transferred to a new cell block and denied new employment.

The allegations in the complaint and its exhibits say that Banks was placed on a waiting

list for a new job when one would become available. Such allegations cannot state any

due process claim. See James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989) (holding that

prisoners do not have a protected liberty or property interest in prison employment). Nor

can they state an alleged retaliation claim, since the merely incidental loss of a job upon

transfer when jobs are not available is not a circumstance where an inmate’s protected

activity caused an adverse action. And even if the loss of the job after transfer could be

seen as an adverse action under these circumstances, the allegations in the complaint and

incorporated grievance documents here indicate that the same outcome would have

occurred regardless of any retaliatory motive. See Rauser v. Horn, 241 F.3d 330, 334 (3d
                                              8
Cir. 2001).

       The District Court’s dismissal of claims based on these job-related incidents was

therefore not an error that affected Banks’ substantial rights in a way that impacted the

fairness, integrity or public reputation of judicial proceedings. See Nara, 488 F.3d at 197.

                                             D.

       Banks also failed to state a claim for any constitutional violation based on the

alleged denial of access to personal hygiene products. Once again, because Banks did not

object to the Magistrate Judge’s report on this issue, we review for plain error only. See

id. at 196. In light of the minimal nature of the harm alleged here (the potential denial of

access to a razor somewhere between a few days and 36 days), the District Court also did

not commit plain error when it dismissed claims based on these facts. C.f., e.g., Penrod

v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (holding that a refusal to provide

toothpaste for over two months, leading to bleeding gums and tooth decay, stated an

Eighth Amendment claim).

                                             E.

       Banks’ allegations of conspiracy require dismissal because they are no more than

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.” See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557 (“[A] conclusory

allegation of agreement at some unidentified point does not supply facts adequate to

show illegality.”). Moreover, a civil conspiracy claim requires a valid underlying tort

claim. Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir.
                                             9
2003). Banks failed to state a claim on any of the constitutional torts he alleged, as noted

above, and therefore cannot support a conspiracy claim based on those alleged actions.

                                             F.

       Banks’ claims alleging supervisory liability suffer from a similar deficiency.

Supervisory liability may be imposed only where there is: (1) contemporaneous

knowledge of the offending incident or knowledge of a prior pattern of similar incidents,

and (2) circumstances under which the supervisor’s inaction could be found to have

communicated a message of approval to the offending subordinate. Bonenberger v.

Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997). Here, Banks’ allegations of the various

supervisory defendants’ participation or actual knowledge and acquiescence have not

been made with sufficient particularity to state a claim. See Rode v. Dellarciprete, 845

F.2d 1195, 1207-08 (3d Cir. 1988).

                                             G.

       Finally, the District Court was within its discretion to dismiss the complaint with

prejudice on the ground that granting leave to amend would have been futile. See Lake v.

Arnold, 232 F.3d 360, 373 (3d Cir. 2000).

                                            IV.

       For the reasons discussed above, Banks’ complaint pleaded no viable claim. As a

result, this appeal presents us with no substantial question. We will therefore affirm the

District Court’s order dismissing Banks’ complaint with prejudice.


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