BLD-066                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-3404
                                  ___________

                              WILSON GORRELL,
                                         Appellant

                                        v.

     JOHN YOST, Warden, FCI Loretto; MICHAEL STEWART, Associate
  Warden, FCI Loretto; JACK MARQUIS, Supervisor of Education, FCI Loretto;
   DOUG AUMAN, Unit Manager, FCI Loretto; CHRIS BRODMERKEL, Case
 Manager, FCI Loretto; BRYCE BURGET, Case Manager Coordinator, FCI Loretto;
 MARIA BLANCA RODRIGUEZ-SCHRAMM; BIRGET; O‟DONNELL; SMOGYE
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civil No. 3:11-cv-00013)
                   District Judge: Honorable Kim R. Gibson
                  ____________________________________

      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
                               December 13, 2012

     Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                        (Opinion filed: January 11, 2013)

                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Wilson Gorrell, a federal inmate currently incarcerated at FCI Jesup in Jesup,

Georgia and proceeding pro se, appeals from an order of the United States District Court

for the Western District of Pennsylvania dismissing with prejudice his complaint

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S.

388 (1971). Because this appeal does not present a substantial question, we will

summarily affirm the District Court‟s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                               I.

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

for our discussion. In submissions to the District Court, Gorrell alleges that while

incarcerated at FCI Loretto in Loretto, Pennsylvania, Associate Warden Stewart and

Supervisor Marquis, under Warden Yost‟s supervision, had his prison work assignment

as an orderly changed from morning watch to day watch in retaliation for his

administrative grievances complaining about the policy governing access to the law

library bathroom. According to Gorrell, this change limited the amount of time he could

use to access the law library. He further asserts that after he filed an administrative tort

claim challenging the renewal of his Management Variable (“MGTV”) of Greater

Security, various staff members conspired to have the MGTV reapplied to his case and to

have him transferred to FCI Jesup in retaliation for filing his claim. Gorrell also claims

that he was transferred to interfere with his ability to litigate his habeas petition filed

pursuant to 28 U.S.C. § 2241. Finally, Gorrell alleges that after his transfer to FCI Jesup,
                                               2
mailroom staff at FCI Loretto opened his legal mail and failed to forward it to him or

withheld his mail from him completely. Gorrell also asserts that these actions violated

his Fifth Amendment due process rights and his Eighth Amendment right to be free from

arbitrary punishment.

       Gorrell filed his Bivens complaint on January 14, 2011 and subsequently filed a

supplemental complaint detailing his legal mail claim on May 16, 2011. Appellees filed

motions to dismiss on September 19, 2011 and October 25, 2011. On July 18, 2012, a

Magistrate Judge recommended that the motions to dismiss be granted and that Gorrell‟s

complaint be dismissed without further leave to amend. On August 13, 2012, the District

Court adopted the Magistrate Judge‟s recommendation and dismissed Gorrell‟s

complaint. Gorrell then timely filed his notice of appeal.

                                               II.

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

plenary review over the District Court‟s dismissal order. See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000). To survive dismissal, “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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). We look for “„enough facts to raise a reasonable expectation

that discovery will reveal evidence of‟ the necessary elements” of a claim for relief.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550

U.S. at 556). “A Bivens action, which is the federal equivalent of the § 1983 cause of
                                                3
action against state actors, will lie where the defendant has violated the plaintiff‟s rights

under color of federal law.” Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir.

2001). We may summarily affirm on any basis supported by the record. Murray v.

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

                                             III.

       Gorrell first asserts two separate claims of retaliation in his complaint. He alleges

that staff at FCI Loretto retaliated against him for filing administrative grievances by

changing his work assignment from morning watch to day watch. Second, he argues that

staff retaliated against him for filing an administrative tort claim by reapplying the

MGTV designation to his case and transferring him to FCI Jesup.1

       To sustain a retaliation claim under Bivens, an inmate must demonstrate that (1)

he engaged in constitutionally protected conduct; (2) he suffered adverse action; and (3)

the constitutionally protected conduct was “a substantial or motivating factor” for the

adverse response. See Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002); see also

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). With respect to the required causal

link, if the prisoner makes a prima facie showing that his constitutionally protected

conduct was a motivating factor in the decision to discipline, the defendant then has the



1
  Although the defendants argued that Gorrell had failed to exhaust his administrative
remedies for this claim, the District Court chose to dismiss his claim without resolving
the issue of exhaustion. See 42 U.S.C. § 1997e(c)(2); Nyhuis v. Reno, 204 F.3d 65, 69
n.4 (3d Cir. 2000) (stating that exhaustion under the Prison Litigation Reform Act
(“PLRA”) is not a jurisdictional requirement).
                                               4
burden of showing that the same disciplinary action would have been taken even in the

absence of the protected activity. See Rauser, 241 F.3d at 334.

       While Gorrell‟s litigation activities qualify as protected conduct, see Milhouse v.

Carlson, 652 F.3d 371, 373-74 (3d Cir. 1981), we agree with the District Court that he

has failed to allege a prima facie case of retaliation for either of his claims. He retained

the ability to access the law library during evenings and weekends after his work

assignment change to day watch. The fact that Gorrell was able to file not only

administrative grievances but his § 2241 petition after being assigned to day watch

demonstrates that the shift “was [not] sufficient to deter [him] from exercising his

[constitutional] rights.” Allah, 229 F.3d at 225 (alterations in original) (internal quotation

marks omitted).

       Furthermore, evidence in the record establishes that staff at FCI Loretto requested

approval to renew Gorrell‟s MGTV in August 2008, approximately five months before he

filed his administrative tort claim. On December 18, 2009—after Gorrell had already

filed his tort claim—staff at FCI Loretto requested a lesser security transfer to FCI

Morgantown for Gorrell because of his good adjustment to FCI Loretto and participation

in programs. However, the Bureau of Prisons‟ Designation and Sentence Computation

Center (“DSCC”) declined to follow FCI Loretto‟s recommendation and reapplied the

MGTV because of Gorrell‟s history of absconding from bail. Staff at FCI Jesup then

requested a renewal of the MGTV, which was approved by the DSCC. Additionally,

Gorrell‟s tort claim was not referred to FCI Loretto for investigation until February 24,
                                              5
2010. While reapplication of the MGTV can be construed as adverse action because it

prevented Gorrell from being transferred to a lesser security facility, the record

establishes that staff at FCI Loretto did not request reapplication of the MGTV because of

Gorrell‟s administrative tort claim. Instead, this action would have been taken even if

Gorrell had not filed his claim, see Rauser, 241 F.3d at 334; therefore, the District Court

appropriately dismissed this claim.

       Next, Gorrell asserts that his right to access the courts was violated because he

was transferred to FCI Jesup to interfere with his ability to litigate his § 2241 petition.2

To establish a cognizable access to the courts claim, a prisoner must demonstrate that he

has suffered an actual injury to his ability to present a claim. Lewis v. Casey, 518 U.S.

343, 352-54 (1996). Moreover, the claim must relate to either a direct or collateral

challenge to the prisoner‟s sentence or conditions of confinement. Id. at 355

(“Impairment of any other litigating capacity is simply one of the incidental . . .

consequences of conviction and incarceration.”). However, “when the Government

moves a habeas petitioner after she properly files a petition naming her immediate

custodian, the District Court retains jurisdiction and may direct the writ to any respondent

within its jurisdiction who has legal authority to effectuate the prisoner‟s release.”

Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004). While Gorrell‟s § 2241 petition was

eventually dismissed, he did not lose the ability to litigate his petition after his transfer


2
 Again, although the defendants argued that Gorrell had not exhausted this claim, the
District Court chose not to address the issue of exhaustion.
                                               6
because he was able to file a reply and other correspondence. Accordingly, because the

District Court retained jurisdiction over Gorrell‟s § 2241 petition, it properly dismissed

this claim.

       In his supplemental complaint, Gorrell claims that after his transfer to FCI Jesup,

mailroom staff at FCI Loretto interfered with his legal mail by either deliberately

withholding it or opening it and failing to forward it to him. To establish liability under §

1983, each individual defendant „must have personal involvement in the alleged

wrongdoing.‟” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Personal involvement can be shown

through allegations of personal direction or of actual knowledge and acquiescence.”

Rode, 845 F.2d at 1207. These allegations must be made with appropriate particularity.

Id. Although Gorrell names mailroom officers Birget, O‟Donnell, and Smogye as

defendants, nothing in the record shows that they personally committed the alleged acts.

Gorrell asserts that they are responsible for the daily operations of the mailroom;

however, this is insufficient to establish personal liability. Accordingly, the District

Court properly dismissed Gorrell‟s claim regarding his mail.

       Finally, Gorrell asserts that his job assignment shift, the reapplication of the

MGTV designation, and his transfer violated his Fifth Amendment due process and

Eighth Amendment rights. While certain fundamental rights are protected by due

process, see White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 1990), “[p]risoners have no

constitutional right to . . . jobs,” Rhodes v. Chapman, 452 U.S. 337, 348 (1981).
                                              7
Accordingly, Gorrell had no constitutional right to remain in his morning watch

assignment. Furthermore, Gorrell has no constitutionally protected liberty interest under

due process in prison transfers. See Olim v. Wakinekona, 461 U.S. 238, 245-48 (1983).

Finally, the Eighth Amendment is inapplicable to Gorrell‟s claims because he has not

suffered any interference with his health or basic needs. See Farmer v. Brennan, 511

U.S. 825, 834 (1994).

                                           IV.

       For the foregoing reasons, no substantial question is presented and we will affirm

the judgment of the District Court.3 See 3d Cir. L.A.R 27.4; I.O.P. 10.6. Accordingly,

we grant Appellees‟ motion for summary action.




3
  The District Court did not provide Gorrell leave to amend his complaint before
dismissing it with prejudice. We conclude that the District Court did not err in declining
to allow Gorrell an opportunity to amend because we do not see how any amendment to
his complaint would save his claims. See Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002) (noting that courts should not dismiss pro se complaints without
granting leave to amend unless “amendment would be inequitable or futile”).
                                             8
