ALD-291                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1721
                                       ___________

                                 THURMAN MEARIN,
                                           Appellant

                                             v.

    LOUIS FOLINO, Superintendent; CARLA SWARTZ, Program Review Committee;
    GREG JOHNSON, Program Review Committee; KERRI CROSS, Hearing Examiner;
     OFFICER HARKLEROAD, C.O.1; LIEUTENANT WILLIAM SHRADER, C.O.3
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-14-cv-01717)
                      District Judge: Honorable Nora Barry Fischer
                      ____________________________________

        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
                                     June 16, 2016

              Before: AMBRO, SHWARTZ and NYGARD, Circuit Judges

                              (Opinion filed: June 23, 2016)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Thurman Mearin appeals from a district court order granting Appellees’

motion for summary judgment. Because we conclude that this appeal presents no

substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir.

LAR 27.4; I.O.P. 10.6.

                                              I.

       Mearin is a prisoner, acting pro se, who was formerly incarcerated at SCI –

Greene. He filed an action under 42 U.S.C. § 1983, arguing that Appellees retaliated

against him in violation of the First and Fourteenth Amendments. Mearin’s complaint

alleged that Appellees retaliated against him for: (1) filing a grievance against a

corrections officer and (2) giving a speech to prisoners about reporting ethnic

intimidation. Compl. ¶ 20. Mearin further alleged that the retaliation was manifested by:

(1) a threat from corrections officer Harkleroad; (2) the issuance of a misconduct by

Harkleroad; (3) a showing of intimidation by corrections officer Shrader; (4) a finding of

guilt for “encouraging group activity” by hearing officer Cross; and (5) the upholding of

the finding of guilt by program review committee members Swartz and Johnson and

Superintendent Folino. Id. at ¶¶ 14-23.

       Appellees filed a motion for summary judgment. The Magistrate Judge

recommended that summary judgment should be granted to the defendants on all claims.

Over Mearin’s Objections, the District Court adopted the Report and Recommendation in

its entirety and granted summary judgment in favor of the defendants. Mearin now

appeals the District Court’s order.
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                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of

orders granting motions for summary judgment is plenary. See McGreevy v. Stroup, 413

F.3d 359, 363 (3d Cir. 2005). We may summarily affirm a district court’s order if an

appeal presents no substantial question. 3d Cir. LAR 27.4 and I.O.P. 10.6.

       This appeal presents no substantial questions. The District Court correctly entered

judgment in favor of Appellees on Mearin’s First Amendment claims. The elements of a

retaliation claim under § 1983 are: (1) engaging in a constitutionally protected activity,

(2) suffering, at the hands of a state actor, an adverse action “sufficient to deter a person

of ordinary firmness from exercising his [constitutional] rights,” and (3) having the

protected activity be a substantial motivating factor in the state actor’s decision to take

the adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The third element,

causation, means either: “(1) an unusually suggestive temporal proximity between the

protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism

coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis,

480 F.3d 259, 267 (3d Cir. 2007); see Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503-04

(3d Cir. 1997). In the absence of that proof, a plaintiff must show that from the

“evidence gleaned from the record as a whole” the trier of fact should infer causation.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).

       The first basis for Mearin’s retaliation claims is a grievance that he filed against a

corrections officer (who is not a party to this action) for purportedly making a racial
                                               3
threat to another inmate. Mearin filed that grievance on August 15, 2013, nearly forty

days prior to the alleged retaliatory acts of September 24, 2013, and after. Notably, the

alleged retaliatory acts came five days after the second purported basis, discussed below.

The District Court correctly concluded that Mearin failed to advance any evidence that

the August 15, 2013 grievance is in any way causally related to the alleged retaliatory

acts. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997), abrogated

on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (in

parallel Title VII context, noting that “the mere fact that adverse . . . action occurs after a

complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating

a causal link between the two events” unless the timing is “unusually suggestive”). In the

absence of that, there is nothing in the record as a whole from which the Court can glean

such a conclusion. Summary judgment was, therefore, appropriate on this aspect of

Mearin’s claims.

       Mearin also makes several claims as to alleged retaliation for his speech to fellow

inmates. First, Mearin claims that corrections officer Harkleroad verbally threatened him

with death for giving the speech. In the “Concise Statement of Material Facts”

accompanying their Motion for Summary Judgment, Appellees asserted that Harkleroad

did not threaten Mearin in any way. Mearin did not specifically deny this alleged fact in

his “Statement of Disputed Factual Issues,” and the Magistrate Judge deemed the fact

admitted pursuant to local court rules. This was an acceptable action. Mearin is a

talented pro se litigant who has made many filings of skill. Even with the leniency due
                                               4
pro se litigants, Mearin could expect to be held to the local rules surrounding summary

judgment motion practice. In his argument, Mearin claims the District Court ignored his

other filings and committed error because Mearin had (a) generally disputed all factual

issues, (b) was not informed by the court of the local rules, and (c) should have received

more liberal construction of his pleadings. None of these contentions is persuasive here.

       Second, Mearin claims that corrections officer Harkleroad fabricated the

misconduct that was issued related to his speech to inmates. Our standard of review

regarding disciplinary board decisions is highly deferential: “[T]he relevant question is

whether there is any evidence in the record that could support the conclusion reached by

the disciplinary board.” Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). Here, there

was sworn testimony of a witness, Mr. Anderson, that during the inmate speech Mearin

stated “[w]e need to stand up to these crackers,” referring to the SCI-Greene staff. See

Case No. 14-cv-01717, Docket No. 40-1, pp. 37-38. Moreover, Mearin admitted, in

written hearing documents, to advising others to “expose the cracker mind set” in the

prison employees. Id. at p. 35. This constitutes at least some evidence that Mearin was

guilty of “encouraging an unauthorized group activity” in the prison context. Id.; see also

Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (concluding that because the

finding of guilt in the inmate’s disciplinary hearing was based on “some evidence,” that

finding “essentially checkmates his retaliation claim”). Given the undisputed summary

judgment evidence, a reasonable finder of fact would have to conclude that the

defendants would have made the same decision out of legitimate penological interests
                                             5
regardless of Mearin’s protected conduct. See Rauser, 241 F.3d at 334; Carter v.

McGrady, 292 F.3d 152, 154 (3d Cir. 2002). That forecloses Mearin’s retaliation claim

based on the misconduct.

       As to corrections officer Shrader, the Magistrate Judge correctly identified that

Mearin’s only allegation is that he stood by and smiled while Harkleroad threatened

Mearin. The effect of the alleged conduct on the employee’s freedom of speech “need

not be great in order to be actionable,” but it must be more than de minimis. Suppan v.

Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). We agree with the District Court that this

alleged act cannot constitute an adverse action necessary to support a retaliation claim as

it is insufficient to deter a person of ordinary firmness from exercising his rights.

       Cross is named in the complaint based solely on her role as the hearing officer

who found Mearin guilty of the misconduct, but there is no allegation of retaliation made

against her in regard to that decision. The District Court thus acted properly in granting

summary judgment on the claim related to her. Finally, remaining are program review

committee members Swartz and Johnson and Superintendent Folino, defendants in this

action by virtue of having upheld the misconduct. Mearin argues that these individuals

should have come to his aid and resolved the misconduct in his favor, but, as the District

Court correctly held, he advances no evidence of record to support a claim of retaliation

on the part of these Appellees. Accordingly, summary judgment was appropriate.

                                             III.



                                              6
      For these reasons, we conclude that this appeal presents no substantial question.

Accordingly, we will summarily affirm the District Court’s order granting the defendants

summary judgment on Mearin’s complaint. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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