CLD-048                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-3193
                                     ___________

                            CLARENCE D. SCHREANE,
                                               Appellant

                                          v.

      J. SEANA, Correctional Officer; K. SWARTZFAGER, Correctional Officer;
      EDWARD Lieutenant; RENDA, Disciplinary Hearing Officer; DUNAHUE,
      Correctional Officer; ALONGA, USP Canaan Special Housing Unit Officer;
                              WARDEN RONNIE HOLT
                     ____________________________________

                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 3:11-cv-00613)
                     District Judge: Honorable A. Richard Caputo
                     ____________________________________

        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
                                 November 21, 2012

              Before: RENDELL, JORDAN and GARTH, Circuit Judges

                          (Opinion filed: December 13, 2012)
                                      _________

                             OPINION OF THE COURT
                                   _________

PER CURIAM

      Clarence D. Schreane, a federal inmate currently incarcerated at USP Lewisburg

in Lewisburg, Pennsylvania and proceeding pro se, appeals from an order of the United
States District Court for the Middle District of Pennsylvania denying his motion for

reconsideration of the order dismissing with prejudice his second amended 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 with one modification. 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 his second amended complaint, Schreane asserts that he was issued

a misconduct write-up for violating Bureau of Prisons (“BOP”) Code 205, engaging in a

sexual act in front of a correctional officer. He requested to see the surveillance video of

the incident and alleges that in retaliation for this request, Officer Swartzfager made false

accusations against him and wrote a false incident report charging him with another Code

205 violation. Schreane also argues that Lieutenant Edward, the officer charged with

investigating the incident, refused to allow Schreane to see the video, failed to review the

video himself, and failed to advise him on his due process rights. According to Schreane,

Disciplinary Hearing Officer (“DHO”) Renda refused his requests to call witnesses and

play the video at his hearing and found him guilty based only on the misconduct reports

and no corroborating evidence. Finally, Schreane alleges that Warden Holt refused to

review the video. Schreane subsequently lost good time credits for both Code 205

violations.
                                              2
       Schreane also asserts that he was charged with possession of an illegal object

inside of an ink pen. According to Schreane, Officer Alonga planted the item inside the

pen to “set him up.” Schreane requested to see the surveillance video, but his request was

denied and he subsequently spent time in the Special Handling Unit (“SHU”) and lost

good-time credits. Finally, Schreane alleges that Officer Donahue violated his First

Amendment right to free exercise of religion by failing to secure his religious oils.

According to Schreane, he wrote to Warden Holt, asking him to return the oils and

review the videos of the theft of the oils. In response, Warden Holt stated that he would

not review the videos and would sustain the decision of the DHO.

       On May 1, 2011, Schreane filed a civil rights complaint pursuant to Bivens; he

then filed an amended complaint on April 25, 2011. On June 13, 2011, a Magistrate

Judge entered a Report and Recommendation (“R&R”) recommending that Schreane‟s

claims for specific monetary damages be dismissed; that his Fifth Amendment due

process claims against Holt, Seana, Swartzfager, Edward, Renda, and Alonga be

dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994); and that his First

Amendment claims against Donahue, Seana, and Swartzfager be dismissed. On

November 15, 2011, the District Court dismissed Schreane‟s § 1983, Fifth Amendment

due process, First Amendment, and Eighth Amendment claims with prejudice, dismissed

his equal protection claim without prejudice, and provided Schreane with the opportunity

to file an amended complaint stating an equal protection claim.


                                             3
      On December 20, 2011, the Magistrate Judge recommended that Schreane‟s suit

be dismissed without prejudice because he had failed to file a second amended complaint

to comply with the District Court‟s November 15, 2011 order. However, Schreane filed

his second amended complaint on January 5, 2012. In this complaint, he again alleged

violations of his Fifth Amendment due process and equal protection, First Amendment,

and Eighth Amendment rights. Accordingly, the District Court rejected the second R&R.

      On April 13, 2012, the Magistrate Judge entered a third R&R recommending that

Schreane‟s second amended complaint be dismissed with prejudice. On May 30, 2012,

the District Court adopted the R&R and dismissed Schreane‟s second amended complaint

with prejudice. Schreane subsequently filed a motion for reconsideration, which was

denied by the District Court on July 23, 2012. He then timely filed a notice of appeal.

                                            II.

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

Schreane‟s timely appeal from the denial of his motion for reconsideration “brings up the

underlying judgment for review,” we will review the District Court‟s dismissal of his

second amended complaint as well as its denial of his motion for reconsideration.

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass‟n, 503 F.3d 217, 225 n.6 (3d Cir. 2007); see

also McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992) (“[A]n appeal

from a denial of a Motion for Reconsideration brings up the underlying judgment for

review.”). We exercise plenary review over the District Court‟s dismissal order. See

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We review a denial of a motion
                                            4
for reconsideration for abuse of discretion, but review a district court‟s underlying legal

determinations de novo and its factual determinations for clear error. Max‟s Seafood

Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). 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.

       The legal standard for dismissing a complaint for failure to state a claim pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). See Allah, 229 F.3d at 223. 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 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).

       Schreane first alleges that several defendants violated his Fifth Amendment right

to procedural due process. Specifically, Schreane states that several of the defendants

filed false charges against him as retaliation for exercising his First Amendment rights
                                              5
and for requesting to view the surveillance tapes of the incidents leading to his various

misconduct charges. He also argues that other officers used unconstitutional procedures

to conduct his disciplinary hearings.

       In 1994, the Supreme Court held that if the success of a § 1983 damages claim

brought by a prisoner “would necessarily imply the invalidity of his conviction or

sentence,” the prisoner may only bring the claim where the conviction or sentence has

been invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Three years later, the

Court extended that rule to prison disciplinary sanctions, holding that a prisoner cannot

bring a suit under § 1983 where the success of that suit would “necessarily imply the

invalidity of the deprivation of his good-time credits.” Edwards v. Balisok, 520 U.S. 641,

646-48 (1997). This bar not only applies to requests for money damages, but also to

requests for equitable and declaratory relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-

82 (2005). The Heck rule applies to bar such claims under Bivens as well. See Lora-

Pena v. F.B.I., 529 F.3d 503, 506 n.2 (3rd Cir. 2008) (citing Williams v. Hill, 74 F.3d

1339, 1341 (D.C. Cir. 1996) (per curiam)). Instead, the proper avenue of relief is a

federal habeas corpus petition pursuant to 28 U.S.C. § 2241 to challenge the duration of

the sentence. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (habeas corpus is

the exclusive remedy when a prisoner seeks “a speedier release from . . . imprisonment”

as through the restoration of good time credits).

       Here, Schreane is challenging disciplinary proceedings that resulted in the loss of

good time credits. A ruling in his favor would necessarily imply the invalidity of the
                                             6
punishment imposed by the defendants. We agree with the District Court that his Fifth

Amendment procedural due process claim is not cognizable under Heck and Edwards;

however, a dismissal pursuant to Edwards should be without prejudice. See, e.g., Fottler

v. United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996). Accordingly, we modify the

District Court‟s dismissal of Schreane‟s due process claim so that it is without prejudice

to either renewal upon a favorable termination of the disciplinary findings against

Schreane or a challenge to Schreane‟s loss of his good time credits through the filing of a

federal habeas corpus petition pursuant to 28 U.S.C. § 2241.

       As his second claim, Schreane alleges that Officer Donohue violated his First

Amendment freedom of religion rights when his religious oils were lost, misplaced, or

stolen during his confinement in the SHU. According to Schreane, Donohue failed to

secure his religious oils and should have been more attentive to his duties. A prisoner

retains “those First Amendment rights that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of the corrective system.” Pell v.

Procunier, 417 U.S. 817, 822 (1974). However, an isolated act of negligence does not

violate an inmate‟s First Amendment right to free exercise of religion. See Gallagher v.

Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009). Here, Schreane alleges that Donohue was

negligent in securing his religious oils after his move to the SHU; he does not allege that

Donohue intentionally chose not to secure the oils. Accordingly, the District Court

properly dismissed Schreane‟s First Amendment claim.


                                             7
       Schreane next asserts a general claim that his Eighth Amendment right to be free

from cruel and unusual punishment was violated because of his removal to the SHU and

because of his loss of good time credits. The relevant Eighth Amendment inquiry is

whether the alleged deprivation is “sufficiently serious” and whether the inmate has been

deprived of the “minimal civilized measure of life‟s necessities.” Farmer v. Brennan, 511

U.S. 825, 834 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). An inmate

must demonstrate that “he is incarcerated under conditions posing a substantial risk of

serious harm” and that prison officials demonstrated “deliberate indifference” to his

health or safety. Id. We agree with the District Court that Schreane failed to state an

Eighth Amendment claim because he did not suffer any pain or interference with his

health or basic needs.

       Throughout his second amended complaint, Schreane alleges that Appellees

violated his Fifth Amendment rights to equal protection because he was convicted of two

Code 205 violations based on the fact that he is African-American. However, we agree

with the District Court that Schreane failed to plead an equal protection claim because he

never supported his allegation with evidence that he received treatment different than that

received by other similarly situated individuals.1 Williams v. Morton, 343 F.3d 212, 221

(3d Cir. 2003).


1
 The District Court did not provide Schreane leave to amend his First Amendment and
Eighth Amendment claims after dismissing them with prejudice on November 15, 2011.
While courts should not dismiss pro se complaints without granting leave to amend
unless “amendment would be inequitable or futile,” Grayson v. Mayview State Hosp.,
                                             8
       Finally, Schreane timely filed a motion for reconsideration of the District Court‟s

order dismissing his second amended complaint with prejudice. A motion for

reconsideration “must rely on one of three grounds: (1) an intervening change in

controlling law; (2) the availability of new evidence; or (3) the need to correct clear error

of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.

2010) (per curiam). Schreane did not identify any of these factors in his motion, wherein

he merely restated his argument regarding the need to review the surveillance videotape.

Given that Schreane‟s motion merely reiterated his previous argument in support of his

Bivens action, we discern no abuse of discretion in the District Court‟s denial of

Schreane‟s motion.

                                             IV.

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

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

will affirm, we modify the dismissal of Schreane‟s due process claim to be without

prejudice to either renewal upon a favorable termination of the disciplinary findings

against Schreane or Schreane‟s challenging the loss of his good time credits through the

filing of a federal habeas corpus petition pursuant to 28 U.S.C. § 2241.



293 F.3d 103, 114 (3d Cir. 2002), we conclude that the District Court did not err in
declining to allow Schreane an opportunity to amend these claims because we do not see
how any amendments would have been successful. Likewise, we conclude that the
District Court did not err in denying Schreane another opportunity to amend his equal
protection claim because he had previously received one such opportunity after the
dismissal of his first amended complaint.
                                              9
