DLD-354                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 13-1995
                                     ___________

                                THURMAN MEARIN,

                                                     Appellant

                                          v.

            MAJOR THOMAS DOHMAN; LIEUTENANT JOHN MOYER
                   ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 2:06-cv-04859)
                     District Judge: Honorable C. Darnell Jones, II
                     ____________________________________

        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 25, 2013

              Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed : August 6, 2013)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Pennsylvania state prisoner Thurman Mearin, proceeding pro se, appeals from the

District Court’s order granting summary judgment in favor of the remaining defendants
in this civil rights action brought pursuant to 42 U.S.C. § 1983. For the reasons that

follow, we will summarily affirm.

                                              I.

       Because we write primarily for the parties, we discuss the background of this case

only briefly. At all times relevant to this case, Mearin was incarcerated at the State

Correctional Institution at Graterford (“Graterford”). In 2004, a prison misconduct report

was issued against him, charging him with possession of a controlled substance,

possession of contraband, and lying to a prison employee. These charges stemmed from

Graterford’s interception of a package addressed to Mearin that contained a substance

suspected to be heroin. At the misconduct hearing, Mearin was found guilty of all of the

charges and ordered to serve 270 days in the restricted housing unit (“RHU”). It appears

that, after spending 103 days in the RHU, Mearin was transferred to his current place of

confinement — the State Correctional Institution at Greene.

       In 2006, Mearin initiated this action by filing a pro se complaint in the District

Court against three Graterford officials — Captain Thomas Dohman (who later was

promoted to Major), Hearing Examiner Mary Canino, and an “Unknown Lieutenant.”

After Mearin amended his complaint on two occasions, Dohman and Canino moved to

dismiss the second amended complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). The District Court granted that motion in part and denied it in part, dismissing

all of Mearin’s claims except his retaliation claims against Dohman and the “Unknown

Lieutenant.”
                                              2
          Thereafter, Mearin, who was now represented by counsel, obtained the District

Court’s permission to file a third amended complaint. That new pleading, filed in 2011,

identified Lieutenant John Moyer as the “Unknown Lieutenant” and clarified the

surviving retaliation claims. Specifically, Mearin alleged that Dohman and Moyer

(hereinafter collectively referred to as “Defendants”), who together had questioned

Mearin about the suspicious package shortly before the misconduct charges were filed,

had falsified those charges in retaliation for (1) his denying knowledge of any heroin

being sent to him, and (2) his refusal to cooperate with an investigation of certain

Graterford correctional officers who were suspected of bringing contraband into the

prison.

          Defendants subsequently moved for summary judgment. In opposing that motion,

Mearin argued that spoliation sanctions should be imposed against them because the

Pennsylvania State Police, to whom the aforementioned package had been turned over in

2004, had destroyed that package in 2007. In March 2013, the District Court granted the

motion for summary judgment, concluding that spoliation sanctions were not appropriate

because Defendants were not at fault for the package’s destruction. Mearin now

challenges that judgment.1

                                             II.

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

de novo district court orders granting or denying summary judgment, applying the same


                                              3
test required of the district court and viewing inferences to be drawn from the underlying

facts in the light most favorable to the nonmoving party.” Schmidt v. Creedon, 639 F.3d

587, 594-95 (3d Cir. 2011) (quotation marks and citations omitted). Summary judgment

is appropriate where “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). Where, as here, the non-moving party requested spoliation of evidence sanctions

in opposing that motion, we review the District Court’s denial of that request for abuse of

discretion. See Hechinger Inv. Co. of Del., Inc. v. Universal Forest Prods., Inc. (In re

Hechinger Inv. Co. of Del., Inc.), 489 F.3d 568, 574 (3d Cir. 2007). We may affirm the

District Court’s judgment on any basis supported by the record. See Murray v. Bledsoe,

650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

         For substantially the reasons provided by the District Court, we cannot conclude

that it abused its discretion in rejecting Mearin’s spoliation argument. As for Mearin’s

challenge to the District Court’s award of summary judgment, we consider that issue

below.

         A prisoner asserting a retaliation claim must establish the following: (1) “the

conduct which led to the alleged retaliation was constitutionally protected”; (2) “he

suffered some adverse action at the hands of the prison officials . . . sufficient to deter a

person of ordinary firmness from exercising his constitutional rights”; and (3) there is a

“causal link between the exercise of his constitutional rights and the adverse action taken

1
    Mearin does not challenge any of the District Court’s earlier rulings in this case.
                                                4
against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (internal quotation

marks and citation omitted). “[O]nce 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.” Id. at 334.

       Assuming for the sake of argument that Mearin made a prima facie showing of

retaliation, we agree with the District Court that Defendants were nevertheless entitled to

summary judgment. Defendants met their burden of showing, as a matter of law, that

even in the absence of Mearin’s allegedly protected conduct, they would have brought the

misconduct charges against him for reasons reasonably related to a legitimate penological

interest. The evidence of Mearin’s guilt as to the misconduct charges, which is set forth

in the District Court’s decision, may have been, by itself, sufficient to meet that burden.

See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002) (“Given the quantum of

evidence of Carter’s misconduct, we cannot say that the prison officials’ decision to

discipline Carter for his violations of prison policy was not within the ‘broad discretion’

that we must afford them.”); see also Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.

1994) (concluding that, because the finding of guilt in the prisoner’s disciplinary hearing

was based on “some evidence,” that finding “essentially checkmates his retaliation




                                              5
claim”).2 Even if it was not, that evidence, when coupled with Moyer’s deposition

testimony, was sufficient. Moyer, who filled out the misconduct charges form filed

against Mearin, indicated in his deposition that, even if Mearin had cooperated with the

aforementioned investigation, Mearin still would have been charged. (See Moyer Dep.

49.) Mearin has not identified any record evidence to the contrary. Although Dohman

testified at his deposition that, if Mearin would have cooperated, “I’m sure there would

have been some type of a deal that was available,” (Dohman Dep. 119), Dohman clarified

that such a deal could have been made only by his and Moyer’s superiors and would not

have been factored in at the charging level, (see id. at 121-23). Mearin has not cited any

record evidence raising a genuine issue of material fact on this point, and our review

reveals none.

       In light of the above, and because this appeal does not present a substantial




2
  In Mearin’s counseled brief in opposition to Defendants’ summary judgment motion, he
conceded that a finding of guilt supported by “some evidence” was typically sufficient to
meet a defendant’s burden as to a retaliation claim, but argued that this general rule did
not apply to his case because the misconduct charges against him had been fabricated. In
support of this contention, he relied on (1) his request for an adverse inference against
Defendants based on their alleged spoliation of evidence, and (2) his early release from
the RHU. But the District Court rejected that spoliation request (and, as explained above,
did not abuse its discretion in doing so), and the reduction of Mearin’s penalty does not
call into question the underlying charges, which were sustained at the hearing.
Accordingly, Mearin’s allegation that the charges were fabricated is unsupported and,
thus, does not warrant disturbing the District Court’s judgment. See Quiroga v. Hasbro,
Inc., 934 F.2d 497, 500 (3d Cir. 1991) (noting that a party opposing summary judgment
may not rest on mere allegations).
                                             6
question,3 we will summarily affirm the District Court’s judgment. See 3d Cir. I.O.P.

10.6.




3
 We have considered Mearin’s arguments in support of his appeal and find them to be
without merit.
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