CLD-021                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 17-1967
                                  ___________

                          CLARENCE D. SCHREANE,

                                             Appellant

                                       v.

                     ROBERT MARR, Correction Counsel,
                 individual capacity Defendant USP Lewisburg;
                 B. CHAMBERS, Disciplinary Hearing Officer,
                 individual capacity Defendant USP Lewisburg;
                      T. LYNN, Education Dept., individual
                       capacity Defendant USP Lewisburg;
                        MR. DILTZ, Correction Counsel,
                          individual capacity Defendant;
                D. OLSESKIE, ISM Manager, individual capacity;
                                  SARAH DEES
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                       (M.D. Pa. Civil No. 3-15-cv-01204)
                  District Judge: Honorable A. Richard Caputo
                  ____________________________________

     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
                                October 26, 2017
   Before: CHAGARES, GREENAWAY, Jr., and GREENBERG, Circuit Judges

                            (Filed: January 19, 2018)
                                      ____________

                                        OPINION*
                                      ____________

PER CURIAM

       Pro se appellant Clarence Schreane, proceeding in forma pauperis, appeals from

the District Court’s grant of summary judgment in favor of defendants in an action

Schreane brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). For the reasons that follow, we will summarily affirm

the District Court’s judgment with one modification.

                                             I.

       Because we write primarily for the parties, we will only recite the facts necessary

for our discussion. Schreane is a federal inmate who was formerly incarcerated at the

United States Penitentiary in Lewisburg, Pennsylvania (“USP-Lewisburg”).1 He brought

a Bivens action in the District Court against a number of employees at USP-Lewisburg:

Corrections Counselor Robert Marr, Disciplinary Hearing Officer B. Chambers; T. Lynn,

Corrections Counselor Diltz, Supervisory Correctional Program Specialist D. Olsheskie,

and Paramedic Sarah Dees. See Dkt. Nos. 1, 15.

       Schreane alleges a number of constitutional violations by defendants. Schreane

filed a lawsuit in February 2014. He claims that Marr retaliated against him for filing the


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Schreane is presently incarcerated in Florence, Colorado.
                                               2
lawsuit by fabricating a misconduct report against him. Marr wrote a misconduct report

on February 20, 2014 stating that Schreane violently threatened him. As a result, the

Acting Warden authorized staff to immediately remove Schreane from his cell, place him

in ambulatory restraints, and move him to a confinement cell for several hours. USP-

Lewisburg’s records indicate that staff regularly checked on Schreane while he was

confined; defendant Dees conducted two health services restraint checks.2

       The following month, defendant Chambers conducted a disciplinary hearing

regarding Marr’s misconduct report. Defendant Lynn acted as Schreane’s staff

representative. Schreane alleges that Chambers and Lynn violated his due process rights

at the hearing. He claims that Lynn mishandled his documents, failed to interview a

witness, failed to secure a surveillance videotape of his time in ambulatory restraints, and

failed to present information that he wanted her to present at the hearing. Schreane also

requested that Chambers be replaced by an alternate hearing officer because he believed

Chambers to be biased against him; this request was denied. Chambers found Schreane

guilty of threatening Marr and sanctioned him to a loss of 27 days good conduct time and

20 days of non-vested good conduct time. See Dkt. No. 32-4 at ECF p. 1.

       Schreane also claims that defendant Olsheskie violated his First Amendment right

to free speech by preventing him from receiving magazines on one occasion and

mishandling other mail. Olsheskie oversees the inmate records office, the mail room, and


2
 Dees is the only defendant Schreane names who appears to have had any interaction
with him during his placement in ambulatory restraints and subsequent confinement.
                                          3
“[r]eceiving and [d]ischarge functions” at USP-Lewisburg. Dkt. No. 32-5 at ECF p. 1.

Olsheskie’s office is located away from the mail room and he is not personally involved

in daily mail processing other than handling questions brought to him by mail room staff.

Id. USP-Lewisburg processes between hundreds and thousands of pieces of mail every

day. Id. In a declaration, Olsheskie maintains that he was not aware of Schreane’s

claims until he filed his case in the District Court. Id.

       The Bureau of Prisons’ database for tracking administrative remedies shows that

Schreane filed twenty-three administrative remedies between February 2014 and October

2015. Dkt. No. 32-1 at ECF p. 71-83. Six of his remedies were appeals to the Central

Office. Id. at ECF p. 85-88. Three out of those six appeals are relevant to Schreane’s

present case: those relating to Marr’s incident report, Schreane’s lost magazines, and

Schreane’s claim that USP-Lewisburg staff were tampering with his mail. See id.

Schreane claims that sometime in late 2013, defendant Diltz denied him a letter

explaining why one of his administrative appeals was untimely filed.

       Schreane filed his complaint in this case in June 2015 and an amended complaint

in September 2015 specifying the damages he sought. All defendants filed a motion in

November 2015 to dismiss Schreane’s claims, or in the alternative, grant them summary

judgment. Dkt. No. 21; see Dkt. No. 31, 32.

       The District Court granted defendants summary judgment on all of Schreane’s

claims on April 3, 2017. It held that: (1) Schreane failed to exhaust several of his claims,

including his claims against Diltz and Dees and one claim against Marr; (2) Schreane’s
                                               4
procedural due process claims against Chambers and Lynn were barred by the rule set out

in Heck v. Humphrey, 512 U.S. 477 (1994); (3) Olsheskie was entitled to summary

judgment on Schreane’s First Amendment freedom of speech claims because Schreane

failed to show any genuine issue of material fact regarding Olsheskie’s personal

involvement with his mail; and (4) Marr was entitled to summary judgment on

Schreane’s First Amendment retaliation claim because Schreane did not present any

evidence that would allow a fact-finder to infer that Marr’s misconduct report was

retaliatory. Dkt. No. 72 at ECF p. 14-26. Schreane filed a timely notice of appeal

challenging the grant of summary judgment for defendants. Dkt. No. 77. He has also

filed a motion for appointment of counsel.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over a district court’s grant of summary judgment; thus, we apply the

same standard as the district court. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265

(3d Cir. 2014). We will “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). A genuine dispute of material fact exists if the evidence is

sufficient for a reasonable factfinder to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       In evaluating a motion for summary judgment, “all justifiable inferences are to be

drawn in . . . favor” of the non-moving party. Id. at 255. However, a mere “scintilla of
                                             5
evidence” in support of the non-moving party does not create a genuine issue of material

fact. Id. at 252. Additionally, “the non-movant may not rest on speculation and

conjecture in opposing a motion for summary judgment.” Ramara, Inc. v. Westfield Ins.

Co., 814 F.3d 660, 666 (3d Cir. 2016). We may summarily affirm a district court’s

decision “on any basis supported by the record.” See Murray v. Bledsoe, 650 F.3d 246,

247 (3d Cir. 2011) (per curiam).

                                            III.

A.     Exhaustion of Administrative Remedies

       Schreane failed to properly exhaust his administrative remedies for several of his

claims. The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust

available administrative remedies before bringing a suit alleging unconstitutional conduct

by prison officials. 42 U.S.C. § 1997e(a); see Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir.

2000) (noting that section 1997e(a) “applies equally to § 1983 actions and to Bivens

actions”). “[P]roper exhaustion of administrative remedies is necessary” to fulfill the

PLRA’s exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). An inmate

must substantially comply with a prison grievance system’s procedural rules to avoid

procedural default of a claim. See Spruill v. Gillis, 372 F.3d 218, 228-32 (3d Cir. 2004).

       To properly exhaust a claim in a Bivens action, a federal inmate must first attempt

informal resolution of his complaint with staff and, if dissatisfied, he must submit a

formal written request for an administrative remedy to a designated staff member. 28

C.F.R. §§ 542.13-542.14. An inmate may then appeal that response to the appropriate
                                             6
Regional Director. Id. § 542.15. Finally, an inmate may appeal the Regional Director’s

decision to the General Counsel in the Central Office. Id. § 542.15(a). “Appeal to the

General Counsel is the final administrative appeal.” Id.

       With their motion for summary judgment, defendants produced a record of the

administrative remedies Schreane filed during the timeframe relevant to his claims. See

Dkt. No. 32-1 at ECF p. 71-83. Schreane has presented no credible evidence challenging

this record.3 It appears uncontested that Schreane filed twenty-three administrative

remedies between February 2014 and October 2015, that six of those remedies were

appeals to the Central Office level, and that of those six, three pertain to Schreane’s

claims in this case.

3
  “An inmate is required to exhaust those, but only those, grievance procedures that are
‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross v. Blake, 136
S. Ct. 1850, 1859 (2016). In an affidavit Schreane submitted in response to defendants’
motion, he claims that he “put forth his best effort[] to exhaust his [a]dministrative
[r]emed[ies]” before filing his case. Dkt. No. 43 at ECF p. 5. He states that he cannot
use a remedy that has not been made available to him because the prison takes “years to
respond” to some complaints and some administrative remedies are lost “by staff in bad
faith.” Dkt. No. 43 at ECF p. 7. His only detailed allegation is that defendant Diltz failed
to provide him with a letter that he needed to explain why one of his administrative
appeals was untimely, but that appeal does not relate to a claim at issue in this case. See
Dkt. No. 32-1 at ECF p. 16, 77.
        Schreane provides no details to support his allegation that he was unable to
exhaust his administrative remedies for his current claims. The undisputed record
showing twenty-three administrative remedies that Schreane filed between February 2014
and October 2015 contradicts his generalized assertion that he was unable to access USP-
Lewisburg’s grievance process. See Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)
(stating that a party opposing summary judgment cannot “rely merely upon bare
assertions, conclusory allegations, or suspicions” to show the existence of a genuine issue
of material fact). Without information about his attempts to complete the grievance
process for the unexhausted claims at issue here, Schreane cannot show that the
administrative remedy process was unavailable to him.
                                              7
       Schreane’s fully exhausted claims, as defendants concede, see Dkt. No. 31 at ECF

p. 17, are those pertaining to his mail and the misconduct report issued by Marr. See Dkt.

No. 32-1 at ECF p. 85-88. Therefore, summary judgment was properly entered for

defendant Marr on Schreane’s claim that Marr denied him postage stamps and for

defendants Diltz and Dees.

B.     Claims Related to Schreane’s Loss of Good Conduct Time Credits

       The District Court properly held that Schreane’s Fifth Amendment procedural due

process claims against Chambers and Lynn are barred by Heck v. Humphrey, 512 U.S.

477 (1994). In Heck, the Supreme Court held that if the success of a previously

convicted plaintiff’s section 1983 damages claim “would necessarily imply the invalidity

of his conviction or sentence,” the plaintiff may only bring his claim if he “can

demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at

487. The Court has extended the rule in Heck to prison disciplinary sanctions, preventing

a prisoner from bringing a section 1983 suit where the success of that suit would

“necessarily imply the invalidity of the deprivation of his good-time credits.” Edwards v.

Balisok, 520 U.S. 641, 646 (1997). “[T]he sole remedy in federal court for a prisoner

seeking restoration of good-time credits is a writ of habeas corpus.” Id. at 643-44.

       The Heck bar applies to Bivens claims. Lora-Pena v. F.B.I., 529 F.3d 503, 505 n.2

(3d Cir. 2008). It applies to claims involving money damages as well as those seeking

equitable and declaratory relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).


                                             8
       Schreane challenges Lynn and Chambers’ actions during a disciplinary proceeding

that resulted in the loss of good-time credits, seeking compensatory and punitive damages

and declaratory relief. Although Schreane does not specifically challenge the loss of his

good-time credits, like the plaintiff in Balisok, a ruling that the disciplinary hearing

officer was biased against Schreane or that he was prevented from presenting his defense

would necessarily imply the invalidity of the lost time. See Balisok, 520 U.S. at 646-47.

Thus, we agree with the District Court that Heck and Balisok preclude consideration of

Schreane’s procedural due process claims at this time.4

       Similarly, Schreane’s First Amendment retaliation claim by Marr is barred by the

Heck rule. Schreane claims that Marr falsified a misconduct incident in order to retaliate

against him for filing a lawsuit. The only evidence presented at Schreane’s disciplinary

hearing was Marr’s misconduct report and Schreane’s statements in his own defense. See

Dkt. No. 32-4 at ECF p. 8-9. There is a direct connection between Schreane’s First

Amendment retaliation claim and his loss of good-time credits — if successful, it would

invalidate the sole basis for his disciplinary sanctions as a fabrication in retaliation for

Schreane’s exercise of his constitutional rights. Thus, Schreane’s First Amendment

4
  In its analysis of Schreane’s procedural due process claims, the District Court noted
that “to the extent Mr. Schreane seeks to assert a due process violation against Counselor
Marr for issuing a false misconduct, this claim, without more, fails.” Dkt. No. 72 at ECF
p. 19. Schreane does not appear to allege that Marr violated his due process by issuing
the misconduct; rather, he denies that he engaged in any misconduct and primarily argues
that Marr falsified the misconduct report to retaliate against him. Regardless, any due
process claim Schreane may have asserted against Marr would be barred by Heck and
Balisok for the same reasons as his other due process claims against Lynn and Chambers
cannot be heard at this time.
                                              9
retaliation claim also necessarily implies the invalidity of the loss of his good-time

credits. See Balisok, 520 U.S. at 646.

       Claims that are barred by Heck and Balisok should be dismissed without prejudice

to the plaintiff pursuing relief through the proper avenue — a habeas corpus petition.

Haywood v. Hathaway, 842 F.3d 1026, 1028 (7th Cir. 2016) (“A dismissal under Heck

and [Balisok] is without prejudice to litigation after a conviction or disciplinary sanction

is annulled.”). Here, the District Court granted summary judgment to defendants on all

counts, including Schreane’s procedural due process and First Amendment retaliation

claims.5 Accordingly, we will modify the District Court’s entry of summary judgment to

a dismissal of Schreane’s procedural due process and First Amendment retaliation claims

without prejudice to a challenge to his loss of his good-time credits through the filing of a

federal habeas corpus petition pursuant to 28 U.S.C. § 2241.

C.     First Amendment Freedom of Speech Claims Against Defendant Olsheskie

       Finally, we agree with the District Court that Olsheskie was entitled to summary

judgment on Schreane’s First Amendment freedom of speech claims relating to his mail.

“A Bivens action . . . will lie where the defendant has violated the plaintiff’s rights under

5
  Defendants requested dismissal on Schreane’s procedural due process claims, see Dkt.
No. 31 at ECF p. 21, and the District Court did not discuss granting summary judgment
to defendants on those claims in its memorandum, see Dkt. No. 72 at ECF p. 20.
However, the District Court’s final order grants summary judgment to defendants on all
claims. See Dkt. No. 73.
       Additionally, the District Court granted summary judgment to Marr on Schreane’s
First Amendment retaliation claim based on its analysis of the merits of his claim. Dkt.
No. 72 at ECF p. 20-26. Neither we nor the District Court can rule on the merits of his
claim at this time due to the Heck bar.
                                             10
color of federal law.” Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001).

Government officials can only be held liable under Bivens for their own individual

conduct. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). There is no liability “for the

unconstitutional conduct of [a government official’s] subordinates under a theory of

respondeat superior.” Id. A plaintiff must establish that a defendant personally directed

or had “actual knowledge and acquiescence” of the alleged unconstitutional conduct.

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

       Defendants have produced evidence showing Olsheskie’s limited role as

supervisor of the mail room. Schreane argues that “any complaint that [is] brought[]

before the mailroom, has been brought before the supervisor.” See Dkt. No. 42 at ECF p.

6. He contends that “the Court should find it hard to believe that Ols[he]skie, was not

notified, or had any knowledge of []his complaint” and that “it is a fact that Olsheski[e]

was aware, upon Schreane filing his complaint,” about his claims. See id. Even if that

were true, establishing a defendant’s knowledge of a constitutional violation after it

occurred is insufficient to show that he personally directed that violation or had actual

knowledge of it at the time it occurred. See Rode, 845 F.2d at 1208 (holding that the

submission of an after-the-fact grievance is “simply insufficient” to establish a

defendant’s knowledge of an underlying constitutional violation at the time it occurred).

Schreane has not shown a genuine issue of material fact regarding Olsheskie’s

involvement in his freedom of speech claims.


                                             11
       Additionally, Schreane only provides details about his claim that USP-Lewisburg

lost his magazines once; he provides no information about other alleged instances of mail

tampering. Typically, a violation of an incarcerated plaintiff’s right of free speech cannot

be established through a single isolated instance of mail interference, as Schreane claims

occurred with his lost magazines. See, e.g., Davis v. Goord, 320 F.3d 346, 351 (2d Cir.

2003). Thus, summary judgment was properly granted for Olsheskie on Schreane’s First

Amendment freedom of speech claims.

                                            IV.

       Because Schreane’s appeal fails to present a substantial question, we will

summarily affirm the District Court’s April 3, 2017 order with one modification. The

judgment of the District Court on Schreane’s procedural due process and First

Amendment retaliation claims will be modified to show dismissal of those claims without

prejudice. Schreane’s motion for appointment of counsel is denied as moot.




                                            12
