DLD-278                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1273
                                       ___________

                                     ORIN TURNER,
                                           Appellant

                                             v.

      COMMISSIONER COUPE; WARDEN PIERCE; DEPUTY WARDEN PARKS;
     DEPUTY WARDEN JAMES SCARBROUGH; MAJOR CARROTHERS; MAJOR
    BRENNAN; ST. LT. SIMON; COUNSELOR MICHAEL MCMAHON; CAPTAIN M.
    RASPOLI; CAPTAIN BURTON; ST. LT. REYNOLDS; ST. LT. ENDURES; ST. LT.
         DAUM; SGT. DOME; C/O TORRES; COUNSELOR SCOTT KNIGHT
                     ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                            (D.C. Civil No. 1-14-cv-00276)
                      District Judge: Honorable Gregory M. Sleet
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 9, 2016
         Before: CHAGARES, GREENAWAY, JR. and GARTH, Circuit Judges

                              (Opinion filed: June 30, 2016)
                                       _________

                                        OPINION*
                                        _________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             1
PER CURIAM

       Pro se appellant Orin Turner appeals from the judgment of the United States

District Court for the District of Delaware in his 42 U.S.C. § 1983 action. As the appeal

does not present a substantial question, we will summarily affirm the decision of the

District Court.

                                            I.

       Turner initiated this § 1983 action in 2014 against various officials from the James

T. Vaughn Correctional Center (VCC), alleging constitutional violations related to his

conditions of confinement, and retaliation for attempting to grieve the violations. Turner

alleges that in July of 2013, he was transferred to the Medium-High Security Unit, and

that following his transfer, Defendant Sergeant Dome permitted him to attend religious

services only on Fridays, although he was on a list permitting him to attend classes

Monday through Thursday. In addition, he alleges that he was denied employment,

education, and other programming, and that his cell was infested with roaches.

       Turner, at an unspecified time, requested a transfer from Defendant Counselor

Knight, and claims that Dome began to harass and threaten him after learning of the

request. On September 3, 2013, Turner filed a grievance against Dome for this

harassment. On September 11, 2013, Turner filed a request to Defendant Robert Coupe,

Commissioner of the Delaware Department of Corrections, and Defendant David Pierce,

Warden of the VCC, in which he complained of the issues with roaches, employment,


                                             2
education, and programming, and requested a transfer from the VCC. Turner alleges that

after sending these complaints, Dome continued to verbally harass and threaten him.

       On September 19, 2013, Turner sent another letter to Coupe requesting a transfer

to another facility though the Interstate Compact Agreement. Pierce reviewed this

submission, and later indicated in a sworn affidavit that it gave him “concern for Turner’s

assigned security classification level.”1 Consequently, on September 24, 2013, Turner

was transferred to the Security Housing Unit (SHU), and claims that he was transferred in

retaliation for filing grievances and other inquiries. Turner filed a number of grievances

and inquiries related to this transfer, and eventually was transferred to a less restrictive

unit on December 24, 2014.

       After screening Turner’s amended complaint under 28 U.S.C. § 1915, the District

Court dismissed his religious exercise claim, his harassment claims, and his conditions of

confinement claims related to roaches, employment, and education, but permitted him to

proceed against Defendants Dome and Pierce on his retaliation claims. On January 6,

2016, the District Court awarded summary judgment in favor of Dome and Pierce,

finding that Turner failed to produce sufficient evidence of retaliatory conduct. This

timely appeal ensued.

1
  Pierce stated: “A review of his grievances, disciplinary history, and his statements, as
well as the similarity to other offenders who have taken drastic actions out of their
perception of persecution are reminiscent of the behaviors and attitude of a former inmate
who took staff hostage in 2004 demanding to transfer out of this facility. Inmate Turner’s
letter, grievances, and disciplinary behaviors upon review demonstrate that he was very
threatening towards staff and a high risk to the safety and security of both the staff and
the rest of the inmate population.”
                                               3
                                               II.

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

the District Court’s dismissal under § 1915, see Allah v. Seiverling, 229 F.3d 220, 223

(3d Cir. 2000) (applying Rule 12(b)(6) standard), and ask whether the complaint contains

“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) (internal quotations omitted). We

also exercise plenary review over the District Court’s award of summary judgment and

apply the same test the District Court should have utilized – whether the record “shows

that there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). In

applying this test, we must accept evidence presented by the non-movant as true and

draw all justifiable factual inferences in his favor. Id. We may summarily affirm any

decision of the District Court where “it clearly appears that no substantial question is

presented or that subsequent precedent or a change in circumstances warrants such

action.” 3d Cir. I.O.P. 10.6 (2015).

       We detect no error in the District Court’s resolution of Turner’s claims and will

affirm for substantially the same reasons as expressed by the District Court. As to his

religious exercise claim, the District Court properly determined that no substantial burden

existed under the Religious Land Use and Institutionalized Persons Act (RLUIPA)

because he was permitted to attend services on Fridays, and was not otherwise forced to

act in a way that violated his beliefs. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015)
                                                4
(substantial burden exists where policy requires plaintiff to “engage in conduct that

seriously violates [his] religious beliefs”) (internal quotations omitted). And as the

District Court explained, to the extent that he asserts a First Amendment claim, it

similarly fails because the First Amendment imposes similar, but less strict, standards on

prison administrators than RLUIPA. See Turner v. Safley, 482 U.S. 78, 89 (1987)

(“[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests.”).

       As to his claims regarding employment, programming, and education, the District

Court properly determined that he enjoys no constitutional right to these services. See

Women Prisoners of D.C. Dep't of Corr. v. D.C., 93 F.3d 910, 927 (D.C. Cir. 1996)

(“[A]n inmate has no constitutional right to work and educational opportunities.”). He

also enjoys no right to any particular housing classification. Wilkinson v. Austin, 545

U.S. 209, 221 (2005) (“Constitution itself does not give rise to a liberty interest in

avoiding transfer to more adverse conditions of confinement.”).

       As to his claim regarding the occasional presence of roaches in his cell, the

District Court properly determined that exposure to such a condition for an approximate

two-month period, without accompanying physical harm, does not satisfy the objective

component of an Eighth Amendment claim. See Harris v. Fleming, 839 F.2d 1232, 1235

(7th Cir. 1988) (temporary roach infestation insufficient to state Eight Amendment claim

in absence of physical harm). His claims of verbal harassment and threats are similarly

insufficient. McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (“[A]cts or
                                               5
omissions resulting in an inmate being subjected to nothing more than threats and verbal

taunts do not violate the Eighth Amendment.”).

       Finally, with respect to his retaliation claims, he must show “(1) constitutionally

protected conduct, (2) an adverse action by prison officials . . . 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 quotations omitted).

His claim against Dome is premised on Dome allegedly preventing him from attending

religious services except on Fridays. We agree with the District Court that “while Turner

alleges that the alleged retaliatory conduct occurred after he submitted grievances and

wrote to Dome’s supervisor, he provided nothing to support his argument.”2 Turner’s

complaint alleges that Dome prevented him from attending services in July of 2013,

immediately upon his transfer to the SHU, and before he filed any complaints or

grievances against Dome. He cannot now credibly claim that Dome engaged in this

conduct – which he acknowledges occurred before he filed any complaints or grievances

– in retaliation for that activity.

       As to Pierce, the decision to transfer Turner to a higher level classification was

based on Pierce’s review of Turner’s grievances, disciplinary history, and other

statements, and Pierce’s determination, based on this review, that Turner posed a threat to


2
 The Court “scoured the record for evidence of a grievance, letter, or any type of
constitutionally protected conducted by Turner prior to Dome's alleged retaliatory acts
and found none.” Upon our review of the record, we agree with this finding.

                                              6
staff and other inmates. Turner’s claim is premised on mere allegations that Pierce

transferred him as punishment for filing grievances and other requests, but because the

evidence of record indicates otherwise – that Pierce transferred him for security reasons –

Turner cannot establish a causal nexus between Pierce’s conduct and any protected

activity. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (noting that “courts should

afford deference to decisions made by prison officials,” and even if “a prisoner

demonstrates that his exercise of a constitutional right was a substantial or motivating

factor in the challenged decision, the prison officials may still prevail by proving that

they would have made the same decision absent the protected conduct for reasons

reasonably related to a legitimate penological interest”).

       Accordingly, we will affirm the judgment of the District Court. Appellant’s

motion for appointment of counsel is denied.




                                              7
