                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2931
                                       ___________

                                 CORNELIUS CARTER,
                                             Appellant

                                             v.

                     MR. HEGGANSTALLER, Corrections Officer;
                         MR. BECKER, Corrections Officer;
                          MR. LITTLE, Corrections Officer
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 1-14-cv-00627)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

       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 18, 2014

             Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges

                               (Filed: December 30, 2014)
                                        _________

                                        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.
       Cornelius Carter, a state prisoner proceeding pro se, appeals from an order of the

District Court dismissing his complaint. For the reasons set forth below, we will

summarily affirm the judgment of the District Court.

       Carter filed a 42 U.S.C. § 1983 action in the District Court in April 2014 alleging

that his rights under the Eighth Amendment were violated by the Defendants during an

incident that occurred while he was in custody at the York County Prison in

Pennsylvania. Carter alleged that he was abruptly awakened and suffered emotional

distress when correctional officers opened the door of his cell in the early morning hours

of July 16, 2013, to permit another inmate to use the toilet in his cell.

       The District Court dismissed Carter’s complaint for failure to state an Eighth

Amendment claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), observing that there are no

allegations that Carter’s exposure to the alleged incident caused him any serious or

significant harm. Carter appeals.

       We have jurisdiction under 28 U.S.C. § 1291.1 Our review is plenary. See Allah

v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Upon review, we will summarily affirm

because no substantial issue is presented on appeal. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.




1
 Carter’s Notice of Appeal was filed in a timely fashion pursuant to the District Court’s
grant of his motion for extension of time in accordance with Fed. R. App. P. 4(a)(5)(A).

                                              2
       We agree with the District Court that Carter’s complaint fails to set forth a viable

Eighth Amendment claim. As the District Court observed, although allowing another

inmate to use the toilet in his cell during the early morning hours may have startled

Carter, there are no allegations demonstrating that his exposure to this incident caused

him any serious or significant harm or that Defendants acted with deliberate indifference

to a substantial risk of such harm.2 See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

       Finally, as it is clear that amendment of the complaint would have been futile, the

District Court need not have afforded Carter leave to amend. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

       As the appeal presents no substantial issues, we will summarily affirm the

judgment of the District Court.




2
  Carter’s document in support of appeal in this Court appears to allege for the first time
that the July 16, 2013 incident occurred in retaliation for a grievance Carter had earlier
submitted to prison officials. To the extent that Carter raises new claims here, we note
that we do not ordinarily entertain arguments raised for the first time on appeal. See
Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001). In any event, the adverse
action he alleges as the retaliatory act – allowing a fellow prisoner into his cell to use the
toilet – is not so severe as to “deter a person of ordinary firmness from exercising his
[constitutional] rights.” See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
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