                                                       NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ___________

                              No. 10-1515
                              ___________

                           DANTE BURTON,

                                Appellant

                                    v.

 SUPERINTENDANT GERALD L. ROZUM; MAJOR DANIEL GEHLMANN;
UNIT MANAGER EDWARD MULLIGAN; UNIT MANAGER CHRIS MCNELIS;
   CHIEF GRIEVANCE OFFICER DORINA VARNER; JOHN DOE PUBLIC
               EMPLOYEE INSURANCE PROVIDER
              ____________________________________

             On Appeal from the United States District Court
                for the Western District of Pennsylvania
                  (D.C. Civil Action No. 09-cv-00324)
                    Magistrate Judge: Keith A. Pesto
              ____________________________________

             Submitted Pursuant to Third Circuit LAR 34.1(a)
                             April 4, 2011

      Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

                      (Opinion filed April 6, 2011 )


                              ___________

                               OPINION
                              ___________
PER CURIAM

       Dante Burton appeals pro se and in forma pauperis from the United States District

Court for the Western District of Pennsylvania‟s sua sponte dismissal of his complaint

pursuant to 28 U.S.C. § 1915A. For the reasons that follow, we will vacate the District

Court‟s order and remand for further proceedings.

                                               I.

       In 2009, Burton filed a 42 U.S.C. § 1983 complaint against several employees of

the Pennsylvania Department of Corrections, alleging that he was retaliated against for

filing a successful grievance. In particular, he asserted that, after filing a grievance that

resulted in his compensation for the loss of clothing, he was transferred to another prison

block, which caused him to lose his job. He also stated that the defendants‟ explanation

for the move—that it was based on institutional security and/or operational needs—was

pretextual.

       The Magistrate Judge screened the complaint sua sponte pursuant to 28 U.S.C. §

1915A, which requires the court to dismiss a complaint that is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such action. The Magistrate Judge then dismissed, with

prejudice, the complaint after determining that Burton could not make out a prima facie

case of retaliation.
       Burton now appeals. 1

                                              II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

sua sponte dismissal of a complaint is plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d

Cir. 2000). To survive dismissal, a complaint need only contain “sufficient factual

matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

       Here, the Magistrate Judge explained that a prisoner bringing a retaliation claim

must allege that: (1) the plaintiff took some action itself protected by the constitution; (2)

the defendant took adverse action sufficient to deter a person of ordinary firmness from

exercising his constitutional rights; and (3) there was a causal connection between the

plaintiff‟s protected conduct and the adverse action. Mitchell v. Horn, 318 F.3d 523, 530

(3d Cir. 2003). The Magistrate Judge determined that Burton‟s complaint failed to state a

claim because “a transfer from one area of a prison to another, which is the only

constitutionally significant adverse action alleged by plaintiff, is as a matter of law

insufficient to deter any person from pursuing his constitutional rights.”

       The Magistrate Judge‟s decision is problematic. First, the constitutionally

protected act at issue is Burton‟s filing of the grievance (not the transfer to a different cell

block), and a retaliation claim is not foreclosed even though the particular privilege that

       1
       Because Burton consented to the Magistrate Judge‟s adjudication of his
complaint, he is entitled to appeal directly to this Court. See 28 U.S.C. § 636(c)(3).
has been taken away does not implicate a constitutional right. See DeWalt v. Carter, 224

F.3d 607, 613 (7th Cir. 2000); Allah, 229 F.3d at 224-25. Second, although a transfer to a

different cell block may not be an adverse action “sufficient to deter” an ordinary person

from filing a grievance, the Magistrate Judge failed to acknowledge that the transfer

resulted in the loss of Burton‟s prison job, which may constitute a sufficiently serious

adverse action.

        Because the Magistrate Judge‟s decision misconstrues Burton‟s allegations as to

the first two prongs of the pleading requirements for a retaliation claim, we will vacate

the decision. Moreover, we note that district courts must generally permit amendment of

a complaint that is vulnerable to dismissal where a responsive pleading has not yet been

filed, even if the plaintiff does not seek leave to amend. See Fletcher-Harlee Corp. v.

Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (observing that in civil

rights cases, “leave to amend must be granted sua sponte before dismissing” the

complaint); Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004) (stating that dismissal

without leave to amend is justified only on grounds of bad faith, undue delay, prejudice,

or futility).

        Accordingly, we will vacate the February 5, 2010 decision and remand the matter

for further proceedings consistent with this opinion.
