                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           _________________

                                 No. 10-2918
                              _________________

                              JOSEPH WATSON,
                                            Appellant

                                       v.

 *SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; GERALD
  ROZUM, Supt. Somerset, PA; GIBSON, Deputy Superintendent; PAUL FISHER,
   Former Kitchen Food Sevice Mananger; REAM, Kitchen Supervisor; PASUKA,
Captain; CLASS, Major; SNYDER, Security Lieutenant; DUPONT, Hearing Examiner;
  JECHONECH; VERNEAU, Kitchen cook; PRATTS, Correction Security Officer;
                        TROY, Correction Security Officer

                     *(Pursuant to Rule 43(c) Fed.R.App.P.)
                             _________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                     (D.C. Civil Action No. 3-09-cv-00087)
                   District Judge: Honorable Kim R. Gibson
                              _________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 July 8, 2011

     Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                         (Opinion filed: July 11, 2011)
                             _________________

                                  OPINION
                              _________________

PER CURIAM
       Joseph Watson appeals from an order dismissing his complaint. For the following

reasons, we will affirm in part, vacate in part, and remand for further proceedings.

                                             I.

       Watson, a prisoner at SCI-Somerset in Pennsylvania during the period in

question,1 filed this pro se 42 U.S.C. § 1983 action in April 2009, requesting declaratory

and monetary relief. He claimed as follows:2 beginning in 2006, he and other unspecified

black inmates that worked in the prison kitchen were specifically targeted for invasive

strip searches by kitchen staff, one of whom—defendant Verneau—is alleged to have

actively and repeatedly molested and sexually harassed Watson during the searches.

Watson filed many grievances during this period, in response to which defendant Fisher

(the kitchen manager) called Watson into his office, personally apologized, and asked

that Watson withdraw his complaint.

       Following this intervention, the situation briefly improved, but in 2007 the

searches resumed. Having been told of Watson‘s complaints, Verneau allegedly

intensified the harassment. Watson soon learned that other inmates were having similar


1
  As of his Notice of Appeal, Watson was incarcerated at the Muskegon Correctional
Facility in Muskegon, Michigan. See Notice, ECF No. 57. However, Pennsylvania‘s
inmate tracker suggests that he is once again housed at SCI-Somerset as of June 7, 2011.
2
 We recount a distilled version of the facts as stated in Watson‘s complaint and the
documents attached thereto, as we are required to accept Watson‘s allegations as true.
See Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam).
Unsurprisingly, the Commonwealth vigorously disputes Watson‘s factual recitation,
accusing him of fabricating details and concocting statements to support his accusations
of retaliation and conspiracy. See, e.g., Br. for Appellees 17 n.7.
                                             2
problems with abusive searches. He obtained ―sworn affidavits‖ from these inmates,

intending to use the documents in crafting a criminal complaint against Verneau and his

associates. Around this time, Watson received a ―misconduct‖ from Verneau for stealing

sugar packets from the kitchen, an event Watson described as being yet another aspect of

the ongoing ―revenge conspiracy‖ against him.

       Watson then let slip to defendants Fisher and Ream (another kitchen supervisor)

that he was preparing a criminal complaint, as he had found the internal prison-grievance

system to be ineffectual. They ―tr[ied] to talk [him] out of pursuing criminal charges,‖

but to no avail. In response, defendants Fisher, Glass (major of the guards), and Papuga

(captain of the guards) sent Pratts and Troy (two guards) to Watson‘s cell with the

purpose of confiscating all evidence against the kitchen staff members, which included

the aforementioned ―sworn affidavits‖ and a half-typed criminal complaint, both of which

were later destroyed by defendant Security Lieutenant Snyder.3 Watson was charged

with misconduct, was put in pre-hearing confinement in the Restricted Housing Unit

(RHU), and was then partially convicted of the charge at a hearing he describes as faulty

and lacking due process.

       After he was secured in the RHU, Watson alleged, a ―witch-hunt‖ began, and the



3
 The misconduct reports and other documents issued in the wake of the search make no
mention of any affidavits, and instead cite Watson for possessing, inter alia, an illegal
petition and ―contraband UCC‖ material. Again, however, this is not the proper juncture
for us to resolve factual disputes among the parties.

                                             3
inmates who had submitted affidavits regarding the kitchen incidents—some of whom

had signed their real names—were sent to other institutions, leaving them unavailable for

the purposes of replacing the destroyed affidavits or corroborating Watson‘s allegations.

Watson further charged that his outgoing and incoming mail (including legal mail) was

tampered with during his stay in the RHU, forcing him to ―fish‖ mail to neighboring

inmates; as a consequence, several legal proceedings he had commenced were dismissed

for failure to prosecute.

       The defendants moved to dismiss Watson‘s complaint, asserting: his failure to

state a claim upon which relief could be granted; his failure to plead personal

involvement for defendants Beard, Rozum, Gibson, and Dupont; and his failure to

exhaust administrative remedies. They incorporated a complete record of Watson‘s

grievances into their motion.

       By Report and Recommendation issued April 12, 2010, Magistrate Judge Lisa

Pupo Lenihan determined that Watson had failed to state any substantive constitutional

claim upon which relief could be granted. Watson v. Beard, No. 09-87J, 2010 U.S. Dist.

LEXIS 52877, at *12–36 (W.D. Pa. Apr. 12, 2010). While briefly discussing the

necessity of exhausting prison grievance procedures under the Prison Litigation Reform

Act (PLRA), Magistrate Judge Lenihan declined to base her decision on that ground. See

id. at *10. The District Court adopted the Report and Recommendation over Watson‘s

objections, dismissing his complaint. Watson v. Beard, No. 09-87J, 2010 U.S. Dist.

LEXIS 52881, at *2 (W.D. Pa. May 27, 2010). Watson filed a timely notice of appeal.
                                             4
                                               II.

       We have jurisdiction under 28 U.S.C. § 1291, and conduct plenary review of the

District Court‘s order dismissing the complaint, accepting as true all well-pleaded factual

allegations and drawing all reasonable inferences in Watson‘s favor. Huertas v. Galaxy

Asset Mgmt., ___ F.3d ___, 2011 U.S. App. LEXIS 7397, at *4 (3d Cir. Apr. 11, 2011,

No. 10-2532). As Watson proceeds pro se, we must construe his claims liberally. Id. at

*5. Our review extends to the complaint itself, exhibits attached to the complaint,

matters of public record, and ―undisputedly authentic document[s] that a defendant

attaches as . . . exhibit[s] to a motion to dismiss if the plaintiff‘s claims are based on

th[ose] document[s].‖ Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d

1192, 1196 (3d Cir. 1993). A complaint ―must contain sufficient factual matter, accepted

as true, to ‗state a claim to relief that is plausible on its face.‘‖ Ashcroft v. Iqbal, ___ U.S.

___, 129 S. Ct. 1937, 1939 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). ―In other words, a complaint must do more than allege the plaintiff‘s

entitlement to relief. A complaint has to ‗show‘ such an entitlement with its facts.‖

Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

                                              III.

A) Supervisory Liability and Official Capacities

       The District Court discussed, but did not resolve, the issue of whether the § 1983

claims against defendants Beard, Rozum, Gibson, and Dupont failed as a matter of law,

due to the lack of personal involvement by those parties. See Evancho v. Fisher, 423
                                                5
F.3d 347, 353 (3d Cir. 2005).4

       With regard to defendant Dupont, Watson asserts that his disciplinary hearing was

faulty. However, no hearing was even required, as he does not claim that the conditions

in the RHU imposed on him an ―atypical and significant hardship.‖ Cf. Griffin v.

Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (discussing the standard for a prisoner‘s liberty

interest). Watson also alleges that Dupont was involved in a conspiracy to violate his

rights, but he did not sufficiently develop this charge; indeed, the ―conspiracy‖ claims

regarding defendant Dupont seem to be part and parcel of Watson‘s claim of unfairness

in his disciplinary hearing. Iqbal, 129 S. Ct. at 1950.

       With regard to defendants Gibson, Rozum, and Beard, Watson alleges little

beyond pure supervisory liability, although he does suggest that Gibson began an

investigation that came to a conclusion adverse to what Watson would prefer. According

to Watson, Gibson was receptive to his complaints, spoke with the parties, found the

explanations proffered to be satisfactory, and—in Watson‘s words—―condoned plaintiff

being violated like this and told the violators they can continue to violate the inmates.‖

Compl. Supp. 11, ECF No. 4. Such an outcome is not enough to demonstrate Gibson‘s

―acquiescence‖ in a constitutional violation. Evancho, 423 F.3d at 353. Accordingly,


4
  Watson sued Gibson, Rozum, and Beard in their ―individual and [o]fficial‖ capacities.
It is clear that all § 1983 claims against the above-named defendants in their official
capacities must be dismissed under the principles of sovereign immunity. See Will v.
Mich. Dep‘t of State Police, 491 U.S. 58, 71 (1989); Baraka v. McGreevey, 481 F.3d
187, 210 (3d Cir. 2007).

                                              6
Watson failed to state a viable § 1983 claim against Gibson, Rozum, Beard, and Dupont.



B) Eighth and Fourteenth Amendment Claims

       To the extent that Watson alleged violations of either the Eighth and Fourteenth

Amendments, we agree with the District Court that he has failed to state a claim, and

affirm for substantially the same reasons addressed in its opinion. Watson did, in a

cursory fashion, imply the broader existence of a policy targeting African American

prisoners, but failed to show that he was treated differently than other individuals

similarly situated. See Keenan v. City of Phila., 983 F.2d 459, 465 (3d Cir. 1992).

       Watson claims that defendant Troy ―defamed‖ him by falsifying various reports,

focusing on Troy‘s failure to reveal that affidavits from fellow inmates were among the

―contraband‖ confiscated from his cell during the objected-to search. Defamation can

implicate due process, and thus be actionable under § 1983, when it accompanies the

alteration or extinguishment of a right or status previously recognized by state law. See

Paul v. Davis, 424 U.S. 693, 711 (1976). But this ―stigma-plus‖ test still requires a

demonstration of injury to reputation. See Dee v. Borough of Dunmore, 549 F.3d 225,

233–34 (3d Cir. 2008). As Watson has failed to demonstrate an injury to his reputation

deriving from the proceeding in question, and as Watson‘s confinement to the RHU was

not obtained in violation of due process, he cannot demonstrate a prima facie entitlement

to relief under a § 1983 theory of defamation.

       Finally, if Watson‘s complaint were construed as challenging the destruction of his
                                             7
personal property by prison officials, and in particular by defendant Snyder, he failed to

state a claim because an unauthorized deprivation of property by prison officials is not

contrary to due process if a meaningful post-deprivation remedy for the loss exists.

Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008) (quoting Hudson v. Palmer, 468 U.S.

517, 533 (1984)). Such a remedy existed; indeed, Watson took advantage of it. He

therefore cannot maintain a due-process claim on this theory.

C) First Amendment Claims

       Watson alleged violations of his rights under the First Amendment, claiming that

various defendants retaliated against him and, later, interfered with his access to the

courts by tampering with his legal mail.

       In order to facially state a retaliation claim, a prisoner must demonstrate (1)

constitutionally protected conduct, (2) sufficiently 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). The District

Court interpreted Watson‘s claim as addressing only the ―retaliatory‖ misconduct report

filed in the aftermath of the search of his cell, holding that the claim failed the third

prong. Specifically, the District Court determined that the disciplinary committee‘s

finding of guilt demonstrated that Watson would have suffered the same punishment for

possession of contraband even without having filed grievances. Watson, 2010 U.S. Dist.

LEXIS 52877, at *15–16; see also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)

(establishing ―burden shifting‖ test for rebutting an inmate‘s claim of retaliatory
                                               8
causality).

       As a preliminary matter, we observe that our precedential cases dealing with the

burden-shifting analysis generally arise from orders granting summary judgment, not

orders dismissing complaints for failure to state a claim. See, e.g., Carter v. McGrady,

292 F.3d 152, 153 (3d Cir. 2002); Rauser, 241 F.3d at 331. To find that the defendants

have, at this stage of the litigation, ―rebutted‖ Watson‘s prima facie claim would be to

subject the veracity of his allegations to premature judicial testing, at odds with our

obligation to assume the truth of his factual proffer.

       Second, we read Watson‘s retaliation claim as sweeping more broadly. His

complaint appears to allege that a wide variety of mistreatment, from the intensified strip-

search regimen, to the searches of his cell, to the tampering with his legal mail, all

resulted from his filing of grievances and his threats to report prison misconduct. This

would appear to state a claim under Rauser, and should hence have survived the

defendants‘ motion to dismiss.

       Watson also argued that his First Amendment rights were violated when the

defendants tampered with his legal mail and interfered with his access to the courts. In

order to state such a claim, he must show an actual injury, such as the ―loss or rejection of

a legal claim.‖ Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997). The underlying lost

claim, whether past or potential, must be nonfrivolous and arguable, and also must be

described in the complaint. Christopher v. Harbury, 536 U.S. 403, 414–5 (2002); see also

Lewis v. Casey, 518 U.S. 343, 355 (1996) (emphasizing that prisons must provide tools
                                              9
―that the inmates need in order to attack their sentences, directly or collaterally, and in

order to challenge the conditions of their confinement. Impairment of any other litigating

capacity is simply one of the incidental (and perfectly constitutional) consequences of

conviction and incarceration‖). To the extent that he complains of the inability to pursue

a past legal claim, he is required to demonstrate that he has ―no other remedy that may be

awarded as recompense for the lost claim other than in the present denial of access suit.‖

Monroe, 536 F.3d at 205 (internal quotations omitted). While Watson does appear to

have suffered the dismissal of at least two court actions based on failure to prosecute, he

has not adequately pleaded their nature or their likelihood of success. Hence, he has

failed to state an access claim. But as we believe that this pleading defect may be cured

by granting leave to amend, we will vacate and remand on this ground for that purpose.

See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

D) Fourth Amendment claims

       The District Court held, and the defendants argue vociferously on appeal, that

Watson failed to state a Fourth Amendment claim. The District Court specifically

observed that inmates ―do not have a Fourth Amendment right to be free of strip

searches, which can be conducted by officials without probable cause provided that the

search is conducted in a reasonable manner.‖ Watson, 2010 U.S. Dist. LEXIS 52877, at

*17 (citing Bell v. Wolfish, 441 U.S. 520, 558–59 (1979)). The defendants assert that

our recent decision in Florence v. Board of Chosen Freeholders of Burlington, 621 F.3d

296, 311 (3d Cir. 2010), cert. granted, 131 S. Ct. 1816 (2011), where we held blanket
                                              10
strip-search procedures to be constitutional, mandates an outcome in their favor, as ―[t]he

purposes of the inmate kitchen worker visual strip search policy are multivalent and

reasonably can include maintenance of prison security, as well as preventing food theft[;]

it is plainly a reasonable practice viewed in this way.‖ Br. for Appellees 13–14.

       Viewed in that way, we would be inclined to agree. But Watson alleges that he

received more than the visual strip searches we held to be reasonable in Florence; for

example, he claimed that Verneau ―squeeze[ed] [his] penis [and] testicles . . . [and] made

comments [that] he would enjoy this while reaching around [and] grip[p]ing [his] penis.‖

Compl. Supp. 2. The intrusive and humiliating nature of such a search, conducted on an

arbitrary basis, calls into question its reasonableness and, thus, its constitutionality. Cf.

Leverette v. Bell, 247 F.3d 160, 166 n.3 (4th Cir. 2001) (―Courts examining the

constitutionality of physically intrusive searches have distinguished between strip

searches, visual body cavity searches, and manual body cavity searches.‖). Furthermore,

as the Supreme Court observed in Wolfish, ―on occasion a security guard may conduct

the search in an abusive fashion[;] . . . [s]uch abuse cannot be condoned.‖ 441 U.S. at

560. Since the District Court did not examine the circumstances surrounding the various

searches in the light most favorable to Watson, who emphasized that not all searches

were merely visual and who described purposeful sexual denigration during some

inspections, we will vacate and remand on this ground.

       On the separate Fourth Amendment issue of whether the search of Watson‘s cell

was constitutional, we agree with the District Court that ―the Fourth Amendment
                                              11
proscription against unreasonable searches does not apply within the confines of the

prison cell.‖ Hudson v. Palmer, 468 U.S. 517, 526 (1984).

E) Conspiracy

       Watson alleges that several of the defendants engaged in a retaliatory conspiracy

against him. ―In order to prevail on a conspiracy claim under § 1983, a plaintiff must

prove that persons acting under color of state law conspired to deprive him of a federally

protected right. . . .‖ Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d

Cir. 1999), superseded by statute on other grounds as stated in P.P. v. West Chester Area

Sch. Dist., 585 F.3d 727, 730 (3d Cir. 2009).

       We find Watson‘s allegations of conspiracy to be conclusory and wanting—he

invokes ―conspiracy,‖ but fails to plead an actual agreement between the parties. For

example, with regard to the retaliatory search of his cell, he describes concerted action

against him, but no agreement to violate his rights. See Tonkovich v. Kan. Bd. of

Regents, 159 F.3d 504, 533 (10th Cir. 1998) (requiring concerted action and an

agreement to satisfy conspiracy claim). As ―the linchpin for conspiracy is agreement,‖

Bailey v. Bd. of Cnty. Comm‘rs, 956 F.2d 1112, 1122 (11th Cir. 1992), concerted action,

without more, cannot suffice to state a conspiracy claim. Cf. Twombly, 550 U.S. at 553–

54. He has also failed to successfully plead a 42 U.S.C. § 1985(3) conspiracy. See Lake

v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

                                            IV.

       In summary, we will affirm the great majority of the District Court‘s judgment,
                                             12
but will vacate and remand on the retaliation and Fourth Amendment claims as discussed

above.5 We also will vacate and remand on his access-to-the-courts claim, as he may be

able to cure the defect in his allegations if granted leave to amend; on all other claims,

amendment would be futile. Grayson, 293 F.3d at 111.




5
  Of course, we recognize that a great deal of energy was expended below by the parties
on the issue of exhaustion. While we may affirm on any ground supported by the record,
Fairview Twp. v. EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985), and while it certainly
appears that Watson‘s utilization of the available grievance process was less than
thorough, we will not affirm on that ground because: 1) failure to exhaust, as an
affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), is only an appropriate
grounds for 12(b)(6) dismissal if the defect is apparent from the face of the complaint, see
Rycoline Prods. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997), and Watson‘s
inclusion of some grievance records in his filing does not imply the exclusion of others;
and 2) to the extent that the defendants showed in their motion to dismiss that Watson
had, in fact, explicitly failed to exhaust his administrative remedies, he countered that
they failed to provide him with the means of appealing his grievances by depriving him
of the prison handbook. Since we have previously held that obstacles to grievance
exhaustion can, in limited circumstances, mitigate failure to exhaust (see, e.g., Brown v.
Croak, 312 F.3d 109, 112–13 (3d Cir. 2002)), we believe that this matter is best
considered by the fact-finder in the first instance.
                                             13
