BLD-143                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-3997
                                  ___________

                           ISRAEL JACOB TORRES,
                                         Appellant

                                        v.

                     SECURITY CAPTAIN T. P. CLARK;
                  SUPERINTENDENT MIKE WENEROWICZ;
          S. K. KEPHART, Correctional Classification Program Manager
                   HEARING EXAMINER SHARON LUQUIS
                   ____________________________________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                          (D.C. Civil No. 1-10-cv-01323)
                 District Judge: Honorable William W. Caldwell
                  ____________________________________

      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
                                 March 7, 2013

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

                          (Opinion filed: April 9, 2013)
                                  _________

                                   OPINION
                                   _________
PER CURIAM

       Israel Torres, a Pennsylvania state inmate, filed a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983 in the District Court, alleging violations of his First, Eighth,

and Fourteenth Amendment rights by various prison officials at the State Correctional

Institute at Frackville (“SCI-Frackville”). 1 The defendants moved for summary

judgment, which the District Court granted. Torres timely filed this appeal.

       We have jurisdiction under 28 U.S.C. § 1291. We review a District Court’s grant

of summary judgment de novo, using the same standard as the District Court. Pichler v.

UNITE, 542 F.3d 380, 385 (3d Cir. 2008). Summary judgment is appropriate if the

record reveals “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). Because we agree with the District

Court that the defendants were entitled to summary judgment, we will affirm.

                                             I.

       In March 2010, the Security Office at SCI-Frackville intercepted an outgoing letter

from Torres which contained disparaging, profanity-laced statements about Correctional

Officer Michael Blankenhorn, who worked in the Security Office and had previously

issued Torres a misconduct report for attempting to use the mail system to send gang-

related correspondence to other inmates. The letter concluded with the statement “[i]f

[Blankenhorn] keeps acting like he is above policy/law somebody is going to break his


1
  After filing his complaint, Torres was transferred to SCI-Forest. He was later
transferred to SCI-Rockview, where he is presently confined.
                                              2
jaw is what I assume?!” Captain T.P. Clark, who headed the Security Office, issued

Torres a misconduct report charging him with (1) threatening an employee with bodily

harm; and (2) using abusive, obscene, or inappropriate language to an employee.

       Torres pleaded not guilty at the misconduct hearing, arguing (1) the letter’s

concluding statement was not intended as a threat against Blankenhorn but rather an

expression of frustration about prison life; and (2) the letter’s remaining references to

Blankenhorn did not constitute using abuse, obscene, or inappropriate language to an

employee because Torres believed the letter would only be read by its intended recipient.

Hearing Examiner Sharon Luquis found that Torres knew that Blankenhorn would read

the letter because Blankenhorn had previously issued him a misconduct report after

screening one of his earlier outgoing letters, and that the statement about Blankenhorn

having his jaw broken was intended as a threat. She accordingly found Torres guilty of

the charges in the misconduct report and sanctioned him to an additional 90 days

confinement in the Restricted Housing Unit (“RHU”), where he was already serving time

for multiple previous misconducts. 2 Following the hearing, Torres was transferred to a

cell within the RHU known as the T-Cell, which is designed for use as both a security-




2
  Torres received 60 days for threatening an employee with bodily harm, and 30 days for
the charge of using abusive, obscene, or inappropriate language to an employee.
                                              3
based transition cell and a psychiatric observation cell. Torres was confined in the T-Cell

for approximately six days before being returned to a standard cell within the RHU. 3

       Torres filed an administrative appeal from the misconduct hearing, claiming that

Clark had issued him the misconduct report in retaliation for writing disparaging

statements about Blankenhorn. Torres also filed a grievance, reiterating the retaliation

claim against Clark and further asserting that the decision to place him in the T-Cell was

retaliatory. Torres also challenged the conditions of the T-Cell, claiming that he was

forced to sleep on a hard plastic slab instead of a mattress, resulting in lower back pain,

and that the 24-hour lighting in the cell caused him to suffer from vision problems and

sleep deprivation. The Hearing Review Committee sustained the misconduct and the

Grievance Coordinator rejected Torres’s grievance. His appeals of those decisions to

Superintendent Michael Wenerowicz were unsuccessful. Thereafter, Torres filed the

instant complaint pursuant to § 1983 in the District Court.

                                             II.

       Torres’s complaint first advanced retaliation claims against Clark and Luquis,

arguing that Clark issued him the misconduct report and that Luquis placed him in the T-

Cell in retaliation for his letter’s disparaging statements about Blankenhorn. With respect

to the misconduct report’s charge that the letter’s concluding statement constituted a


3
 During his time in the T-Cell, Torres was seen by a nurse after complaining of back
pain, vision problems, and dandruff. He was subsequently seen by a physician, to whom
he complained about dandruff problems. The physician prescribed a dandruff shampoo.

                                              4
threat against Blankenhorn, we agree with the District Court that the statement is not

constitutionally protected because it is a “true threat.” See Watts v. United States, 394

U.S. 705, 707 (1969); United States v. Fullmer, 584 F.3d 132, 154 (3d Cir. 2009).

Because the statement is not constitutionally protected, Torres cannot rely on it as the

basis for a retaliation claim. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). With

respect to the misconduct report’s charge that other statements in Torres’s letter

constituted the use of abusive, obscene, or inappropriate language towards Blankenhorn,

we agree with the District Court that these statements plainly violated the prison’s

permissible restriction on Torres’s First Amendment rights and therefore cannot form the

basis for a retaliation claim. See Cowans v. Warren, 150 F.3d 910, 912 (8th Cir. 1998);

Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986). We are also unconvinced by

Torres’s claim that the decision to place him in the T-Cell was retaliatory. We agree with

the District Court that because the defendants were familiar with Torres’s history of

persistent attempts to circumvent prison policies in order to send unauthorized, gang-

related correspondence to other inmates, there were substantial reasons to temporarily

place him in the security-based transition cell following the hearing.

       Torres’s complaint also alleged that Luquis violated his due process rights by

denying him the opportunity to question Clark at the misconduct hearing and by failing to

provide adequate process prior to placing him in the T-Cell. However, because Torres

did not exhaust these claims during his administrative appeals of the misconduct

proceeding, they are procedurally defaulted for purposes of his § 1983 action. See Spruill
                                             5
v. Gillis, 372 F.3d 218, 231-32 (3d Cir. 2004). Finally, Torres’s complaint advanced

Eighth Amendment claims based on his six-day confinement in the T-Cell. We agree

with the District Court that Torres has not alleged facts sufficient to establish an Eighth

Amendment violation based on the conditions of his confinement in the T-Cell, see

Rhodes v. Chapman, 452 U.S. 337, 346 (1991); Griffin v. Vaughn, 112 F.3d 703 (3d Cir.

1997), or based on the medical attention he received there, see Estelle v. Gamble, 429

U.S. 97 (1976); Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

                                             III.

       For these reasons, we will summarily affirm the judgment of the District Court.




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