DLD-046                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3681
                                       ___________

                                 SHAWN T. WALKER,

                                                   Appellant

                                             v.

                      SHANDA MATHIS; KERRY KERSCHNER;
                         CYNTHIA LINK; DORINA VARNER
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 15-cv-05134)
                            District Judge Gene E. K. Pratter
                      ____________________________________

       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 17, 2016
          Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                           (Opinion filed: December 6, 2016 )
                                       _________

                                        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.
       Shawn T. Walker appeals the District Court’s dismissal of his complaint. We will

summarily affirm.

       In September 2015, Walker, a prisoner confined at SCI-Graterford, filed a

complaint pursuant to 42 U.S.C. § 1983 in the Eastern District of Pennsylvania, alleging

retaliation and failure to take action regarding a grievance and appeals he had filed

concerning a false misconduct report. Amongst the relief sought, Walker requested a

declaratory judgment that the prison grievance policy is unconstitutional or, in the

alternative, that the defendants’ interpretation of the policy is unconstitutional, and a writ

of mandamus directing the prison to allow him to file his allegedly ignored grievance.

Walker named as defendants Shanda Mathis, a corrections food services instructor who

supervised Walker at his job in the SCI-Graterford prison kitchen; SCI-Graterford

Superintendent Cythina Link; Link’s assistant, Major Kerry Kerschner; and Chief

Grievance Officer Dorina Varner.

       Walker alleges that he and Mathis engaged in a verbal altercation on July 26,

2015, following which Walker complained to Mathis’ supervisor. Later that day, Mathis

issued Walker a misconduct report for refusing to obey a work order and for being in an

unauthorized area. According to Walker, Mathis did so in retaliation for Walker’s

reporting her to her supervisor. Walker alleges that as a result of the misconduct report,

he was suspended from his job until the outcome of the hearing. Ultimately, Walker’s

suspension from his work assignment only lasted two days, at which point the hearing


                                              2
examiner dismissed the misconduct report. Walker pursued a grievance against Mathis

through the prison system, which was ultimately unsuccessful.

       In October 2015, defendants filed a motion to dismiss for failure to state a claim.

Thereafter, Walker filed a motion for appointment of counsel and an amended complaint.

Defendants subsequently filed a motion to dismiss Walker’s amended complaint. In May

2016, Walker filed a motion for leave to file a second amended complaint. By order and

opinion entered on May 19, 2016, the District Court denied Walker’s motion for

appointment of counsel, granted defendant’s motion to dismiss Walker’s amended

complaint, denied Walker’s motion for leave to file a second amended complaint, and

denied Walker’s motion for extension of time to cure defects in his motion to file a

second amended complaint without prejudice. However, the District Court allowed

Walker to refile his motion within thirty days, which he did. By order entered on

September 13, 2016, the District Court denied Walker’s motion to file a second amended

complaint and dismissed his case with prejudice.

       Walker appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because

Walker has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we

review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We

may summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks

substantial merit.



                                             I.
                                             3
       We exercise plenary review of the District Court's order dismissing Walker’s

complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See

Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). In

reviewing the dismissal under Rule 12(b)(6), “we accept all factual allegations as true

[and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen.

Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A court may grant a motion to dismiss under

Rule 12(b)(6) “only if, accepting all well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the plaintiff, [it] finds that [the] plaintiff's

claims lack facial plausibility.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–56 (2007)). Pro se pleadings, “however inartfully pleaded,” must be held to “less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404

U.S. 519, 520 (1972). However, “pro se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d

Cir. 2013).

       All of Walker’s claims arise from his verbal altercation with Mathis and the

allegedly retaliatory misconduct report she filed. To establish a claim of retaliation, a

prisoner must show: (1) that he was engaged in a constitutionally protected activity; (2)

that he “suffered some ‘adverse action’ at the hands of the prison officials”; and (3) that

the protected activity was “a substantial or motivating factor” in the prison officials’

decision to take the adverse action. Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001).
                                               4
The burden then shifts to the prison officials to prove “that they would have made the

same decision absent the protected conduct for reasons reasonably related to a legitimate

penological interest.” Id. at 334.

       Here, with regard to the second factor,1 we agree with the District Court’s

conclusion that Mathis’ alleged conduct was not sufficiently serious to “deter a person of

ordinary firmness from exercising his [constitutional] rights.” Mitchell v. Horn, 318 F.3d

523, 530 (3d Cir. 2003) (alteration in original) (quoting Rauser, 241 F.3d at 333). The

misconduct report filed by Mathis was dismissed two days after it was filed and resulted

in no punishment. The only adverse action allegedly taken against Walker as a result of

the misconduct charge was his temporary removal from his work assignment and two

days of lost prison wages. This single, temporary inconvenience does not meet the

standard. See Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (charging prisoner

with misconduct report that was later dismissed for filing a false grievance does not rise

to the level of “adverse” action for purposes of retaliation claim); see also Bridges v.

Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (“A single retaliatory disciplinary charge that

is later dismissed is insufficient to serve as the basis of a § 1983 action.”).



                                              II.




1
 The defendants did not challenge the first or third factors, and the District Court
properly noted that Walker had adequately addressed these factors.
                                             5
       We likewise conclude that the two-day suspension from employment fails to rise

to the level of an Eighth Amendment violation. Walker alleges that Mathis’ naming him

in a false misconduct report constituted cruel and unusual punishment. The Eighth

Amendment imposes duties on prison officials to “provide humane conditions of

confinement” and “ensure that inmates receive adequate food, clothing, shelter, and

medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks

and citation omitted). However, where conditions are not “cruel and unusual” but merely

“restrictive and even harsh,” they do not violate the Eighth Amendment but rather “are

part of the penalty that criminal offenders pay for their offenses against society.” Rhodes

v. Chapman, 452 U.S. 337, 347 (1981). We agree with the District Court’s

determination that neither the two-day suspension nor the lost wages rise to the level of a

deprivation of basic human needs, such as food, clothing, and shelter and, therefore, fail

to meet the standard for cruel and unusual punishment.

                                            III.

       Walker’s due process claim against all defendants for denying the grievance he

attempted to file following his interaction with Mathis and her subsequent misconduct

report fares no better, as Walker does not have a constitutional claim based on the

temporary loss of his prison job. We have held that there is no liberty interest in a prison

job arising from the Due Process Clause. See James v. Quinlan, 866 F.2d 627, 629 (3d

Cir. 1989). Walker cannot show that he was deprived of any state-created liberty interest

because the temporary two-day job suspension and resulting loss of wages does not
                                             6
impose “atypical and significant hardship . . . in relation to the ordinary incidents of

prison life.” Torres v. Fauver, 292 F.3d 141, 151 (3d Cir. 2002) (quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995)). Absent a constitutionally protected interest,

Walker’s due process claim must fail.2

       Walker further alleges that his grievance was improperly denied by Kerschner

because it was over the two-page policy limit. Walker then filed an appeal, which was

subsequently denied by Link. Finally, Walker appealed to the Office for Inmate

Grievances and Appeals, where his second appeal was denied by Varner. Regarding

defendants Kerschner, Link, and Varner, Walker has failed to allege that their

involvement in this matter extended beyond their denial of his grievance and subsequent

appeal. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“A[n individual

government] defendant in a civil rights action must have personal involvement in the

alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat

superior.” (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988))).3 As to


2
 Walker’s claims for declaratory and injunctive relief regarding the prison’s inmate
grievance system must also fail as they likewise do not give rise to a § 1983 claim.
3
  Unlike Mathis, Kerschner, and Varner, who were sued only in their individual
capacities, Link was sued in both her official and individual capacities. We agree with
the District Court’s analysis and conclude that the claims against Link in her official
capacity were properly dismissed under the doctrine of sovereign immunity. The
Eleventh Amendment bars suits in federal court by private parties against states, state
agencies, and state officials in their official capacities, absent consent by the state. Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997). While a state may lose its
immunity by Congressional abrogation or by waiver, see Lavia v. Pa. Dep’t of Corr., 224
F.3d 190, 195 (3d Cir. 2000), Congress did not abrogate states’ sovereign immunity when
                                                 7
Mathis, Walker has failed to provide any allegations identifying how her conduct caused

him to suffer a violation of his due process rights.4 Accordingly, the District Court

properly dismissed Walker’s due process claims against all defendants.5

                                            IV.

       For the forgoing reasons, we conclude that there is no substantial question

presented by this appeal, and will thus summarily affirm the District Court’s dismissal of

Walker’s complaint. Walker’s motion for appointment of counsel is denied.




it enacted 42 U.S.C. § 1983, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66
(1989). Moreover, we have previously noted that the Pennsylvania legislature has
expressly declined to waive its sovereign immunity by statute. See Lavia, 224 F.3d at
195; see also 42 Pa. Cons. Stat. Ann. § 8521(b).
4
  We agree with the reasoning of the District Court that to the extent Walker is asserting
that Mathis is liable on the basis of the same conduct identified in his First and Eighth
Amendment claims, this claim fails for the reasons provided in the discussion of those
claims.
5
  The District Court appropriately denied Walker’s request for a writ of mandamus, see,
e.g., In re Wolenski, 324 F.2d 309, 309 (3d Cir. 1963) (per curiam) (holding district court
had no jurisdiction to issue writ of mandamus compelling action by state official); motion
to file second amended complaint, see, e.g., Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000) (holding “amendment is futile if the amended complaint would not survive a
motion to dismiss for failure to state a claim upon which relief could be granted”); and
motion for appointment of counsel, see, e.g., Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993) (noting that before court is justified in granting counsel, it must appear that
plaintiff’s claims have some merit).
                                               8
