                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                               __________

                                   No. 12-1690
                                   __________

                                  JOHN DIAZ,

                                             Appellant
                                        v.

        MARY CANINO, IN HER INDIVIDUAL AND OFFICIAL CAPACITY;
     COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS
                                   __________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                         (D.C. Civil No. 2-08-cv-01033)
                      District Judge: Hon. Cynthia M. Rufe
                                   __________

                    Submitted under Third Circuit LAR 34.1(a)
                                October 29, 2012

           Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges.

                             (Filed: October 31, 2012)

                                   __________

                           OPINION OF THE COURT
                                 __________

ALDISERT, Circuit Judge.
       John Diaz, a prison inmate, appeals from a judgment by the United States District

Court for the Eastern District of Pennsylvania granting a motion under Rule 12(b)(6),

Federal Rules of Civil Procedure. Diaz alleges that Hearing Officer Mary Canino violated

his due process rights by denying him a proper misconduct hearing. This appeal requires

us to decide whether Diaz had a liberty interest in avoiding 360 days of disciplinary

confinement in a Restrictive Housing Unit (“RHU”) and whether Canino’s participation

in Diaz’s misconduct hearing, without more, constitutes sufficient personal involvement

to state a claim against her for alleged liberty deprivations arising after, and apart from,

the disciplinary sentence she issued. The District Court held that Diaz failed to state a

claim for which relief could be granted because Diaz had no liberty interest in avoiding

360 days of confinement in RHU and he did not allege sufficient personal involvement

on the part of Canino to hold her liable for alleged liberty deprivations occurring after the

completion of his disciplinary sentence. We will affirm.

                                              I.

       Because we write primarily for the parties, who are familiar with the facts and the

proceedings in this case, we will revisit them only briefly.

                                              A.
       On May 16, 2011, Diaz filed a Second Amended Complaint alleging the following

pertinent facts, which we assume to be true as required when reviewing a district court’s

grant of a 12(b)(6) motion to dismiss.

       Diaz was an inmate at the Pennsylvania State Correctional Institution in

Graterford, Pennsylvania, where he shared a cell with one other inmate. On February 20,

2006, Diaz was removed from his cell and placed in RHU because, according to

Correctional Officer Jeffrey McCusker, an informant stated that Diaz was planning to



                                              2
attempt an escape. Upon searching Diaz’s cell, correctional officers found items they

believed were consistent with a plan to escape, including a map, a description of inmate

processing and a particular type of inmate clothing typically issued to inmates with a

classification different from that of Diaz.

       Officer McCusker filed a misconduct report and a copy was given to Diaz on

February 28, 2006. The Misconduct Report charged Diaz with various offenses relating

to contraband, conspiracy, solicitation and escape. In an attempt to prepare for his

upcoming disciplinary hearing, Diaz requested a copy of the Inmate Handbook and an

opportunity to go to the law library. His requests were denied.

       On March 2, 2006, Diaz appeared before Hearing Officer Canino. He pleaded not

guilty to the charges against him but admitted that the clothing found in his cell belonged

to him. Diaz explained, however, that many inmates have different colored hats and

pants, implying no inference of a plan to escape could be drawn from the clothing found

in his cell that was not issued to him by prison authorities. Canino did not ask Diaz any

other substantive questions about the misconduct report nor did she give Diaz an

opportunity to call witnesses or present evidence in his defense. She also did not call

Officer McCusker as a witness during the hearing but rather interviewed him prior
thereto. Canino never spoke directly with the informant.

       On March 3, 2006, Canino found Diaz guilty of all charges against him and

sentenced him to 360 days in RHU. Canino did not permit Diaz to present evidence or

witnesses at the hearing. He spent three days in the RHU at Graterford and was then

transferred to the RHU at the Pennsylvania State Correctional Institution in Smithfield,

Pennsylvania. Diaz served the remainder of his 360-day sentence in the Smithfield RHU.

       Diaz contends that, while in RHU he was exposed to “continuous searches” and



                                              3
“regular relocation of his cell,” and he “was unable to sleep as a result of the lights that

remained turned on.” App. 30. After leaving RHU, Diaz endured “increased scrutiny by

correction officers and prison officials, including but not limited to his cell being

relocated on a monthly basis, routine strip-searches, and [an] inability to participate in

certain programs and activities.” 1 App. 31.

                                               B.

       Alleging the events described above violated his right to due process, Diaz filed

state and federal claims against the Commonwealth of Pennsylvania Department of

Corrections and against Canino in her official and individual capacities. The District

Court dismissed all of Diaz's claims. On appeal, Diaz challenges only one of the

dismissals: the District Court’s dismissal, under Rule 12(b)(6), of his § 1983 claim

against Canino in her individual capacity.

                                               II.

       The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1343. We have

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s

decision to dismiss a complaint for failure to state a claim upon which relief can be

granted. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). To survive a motion to
dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a


1
 Diaz’s Second Amended Complaint, filed May 16, 2011, states that “[a]t all relevant and
material times, [Diaz] was an inmate either at SCI Smithfield or SCI Graterford.” App.
27. Diaz’s Reply Brief, filed May 16, 2012, states that Diaz “continues to suffer on-going
injury because he is forced to endure increased scrutiny . . . .” Appellant’s Reply Brief at
6. It appears, however, that Diaz is no longer at Smithfield or Graterford, but rather
Souza-Baranowski Correctional Center in the Commonwealth of Massachusetts. App. 27.
As a result, it is unclear whether Diaz intends for us to consider the current conditions of
his confinement at Souza-Baranowski as part of his claim against Canino. This, however,
does not affect our analysis. We will therefore refer to Diaz’s allegations as though they
concern past rather than ongoing harms.

                                               4
claim to relief that is plausible on its face. A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks and citations omitted). We will “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and

determine whether under any reasonable reading of the complaint, the plaintiff may be

entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)

(internal quotation marks and citations omitted).

                                             III.

       The District Court correctly dismissed Diaz’s claim against Canino in her

individual capacity for failure to state a claim upon which relief can be granted. It did so

in two parts. First, the District Court held that Diaz failed to state a due process claim

because, contrary to what Diaz alleged, he did not have a liberty interest in avoiding the

length and conditions of his confinement in RHU. Second, as to alleged liberty

deprivations occurring after his release from confinement in RHU, the District Court held

that Diaz failed to allege sufficient personal involvement on the part of Canino to state a

due process claim against her in her individual capacity.
                                              A.

       As to the length and conditions of Diaz’s disciplinary confinement in RHU, we

agree with the District Court that Diaz failed to state a claim upon which relief could be

granted because he had no liberty interest in avoiding such confinement.

       The Fourteenth Amendment provides that no State shall “deprive any person of

life, liberty or property, without due process of law." U.S. Const. amend. XIV, § 1. When

bringing a § 1983 suit based on a violation of this Amendment, plaintiffs must identify or



                                               5
allege the deprived protected interest. See Sample v. Diecks, 885 F.2d 1099, 1113 (3d

Cir. 1980). Without the presence of a protected interest, a § 1983 due process claim

simply cannot stand. See id.

       Diaz’s suit is not about “life” or “property,” so we consider only whether Diaz’s

Complaint alleged a protected “liberty” interest. A liberty interest may arise from the

Constitution itself or “an expectation or interest created by state laws or policies.”

Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Diaz’s Complaint does not mention any

state law or policy but alleges that because of an improper misconduct hearing, he was

sentenced to 360 days in RHU, where he was “exposed to continuous searches,”

subjected to “regular relocation of his cell,” and “unable to sleep as a result of the lights

that remained turned on.” App. 30. This Court, however, has recognized that “inmates are

generally not entitled to procedural due process in prison disciplinary hearings because

the sanctions resulting from those hearings do not usually affect a protected liberty

interest.” Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 171 (3d Cir. 2001) (citing Sandin v.

Conner, 515 U.S. 472, 483-484 (1995)). Only if the sanction “imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life” is a

protected liberty interest affected. Sandin, 515 U.S. at 484.
       Here, we decide that neither the conditions nor the length of Diaz’s confinement in

RHU worked an “atypical and significant hardship” on Diaz so as to deprive him of a

protected liberty interest. In Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997), we held

that an inmate confined to the RHU at Graterford for even longer than Diaz—15

months—was not subjected to “atypical and significant hardship” thereby depriving him

of a liberty interest. Although Griffin involved an inmate held in “administrative

custody” rather than “disciplinary custody,” see id. (applying the Supreme Court’s



                                               6
“atypical and significant hardship” standard to an administrative-custody case), the same

reasoning has been applied in the disciplinary-custody context, see Smith v. Mensinger,

293 F.3d 641, 652-654 (3d Cir. 2002) (applying the same “atypical and significant

hardship” standard to a disciplinary-custody case and citing Griffin). Additionally, we

find nothing in Diaz’s Complaint that allows us to infer that the searches, cell relocation,

and lights complained of are “atypical” of “the ordinary incidents of prison life.” The

Complaint simply does not provide any basis by which to compare these conditions with

non-RHU custody. Accordingly, we hold that the District Court correctly determined that

no protected liberty interest was affected by Diaz’s 360-day confinement in RHU.

                                             B.

       Nevertheless, Diaz argues that the length and conditions of his RHU confinement

do not by themselves define the deprived liberty interest. In an effort to bolster his

position that a liberty interest was affected, he contends that deprivations occuring after

his release from RHU should also be considered in his claim against Canino. We

disagree. As Diaz conceded in his Brief, the deprivations that occurred after his release

from RHU were “far outside the scope of an original misconduct sentence.” Appellant’s

Reply Brief at 6. Canino may not, therefore, be held personally liable for such
deprivations based solely on her involvement in Diaz’s misconduct hearing. Even if we

found such post-sentence deprivations affected a liberty interest, Diaz failed to allege

sufficient personal involvement by Canino to state a claim against her in her individual

capacity.

       Diaz’s Reply Brief relies heavily on the argument that, unlike the plaintiffs in

Sandin, Griffin, and Smith, he has alleged deprivations “extend[ing] well beyond [his]

initial disciplinary hold” of 360 days. He argues that even once he completed his 360-day



                                              7
sentence and was released from RHU, he continued to “endure increased scrutiny” as a

result of his “guilty verdict.”2 He states such “scrutiny” included “his cell being relocated

on a monthly basis, routine strip-searches, and [an] inability to participate in certain

activities.” App. 31. In support of the argument that such “increased scrutiny” is

“atypical” and thereby implicates an alleged liberty interest, Diaz points out that Canino’s

Brief failed to show any “authority allowing [or] permitting continued mistreatment

outside of [an] RHU hold.” Appellant’s Reply Brief at 6. For the same effect, Diaz also

describes the “increased scrutiny” he endured after his release from RHU as “far outside

the scope of an original misconduct sentence.” Id.

       When a plaintiff brings a § 1983 claim against a defendant in his or her individual

capacity, the plaintiff must establish that the defendant had “personal involvement” in the

alleged wrongs. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, to

state a claim against Canino in her individual capacity, Diaz’s Complaint needed to

contain “allegations of personal direction or of actual knowledge and acquiescence.” See

2
 We note that Diaz’s Second Amended Complaint states he also “has a protected liberty
interest in being free from misconduct reports and disciplinary actions that will ultimately
affect the duration of his confinement.” App. 33. The Complaint, however, does not
actually allege that Diaz’s duration of confinement will be affected by his “guilty
verdict,” and moreover, does not contain any facts that would support such an allegation.
As a result, even if Diaz does have a liberty interest in “being free from misconduct
reports and disciplinary actions that will ultimately affect the duration of his
confinement,” the District Court’s grant of Defendants’ 12(b)(6) motion was proper. As
the Supreme Court stated in Sandin, “[t]he decision to release a prisoner rests on a myriad
of considerations. . . . The chance that a finding of misconduct will alter the balance is
simply too attenuated to invoke the procedural guarantees of the Due Process Clause.”
515 U.S. at 487. Lastly, Diaz did not mention this alleged liberty interest to the District
Court in his Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, and
he does not mention it to this Court in his briefs on appeal.




                                              8
id.

       When dismissing Diaz’s claim, the District Court noted that “Plaintiff does not

allege that Canino had personal involvement in [the post-sentence deprivations] or that

she had any involvement with Plaintiff’s incarceration after she imposed the 360-day

sentence.” App. 18. Diaz argues that it was not necessary to allege that Canino was

involved in the post-sentence deprivations because her involvement in his misconduct

hearing alone was sufficient to state a claim. We disagree. As stated before, he himself

argues that the alleged post-sentence deprivations fall “far outside the scope of an

original misconduct sentence.” Appellant’s Reply Brief at 6. Therefore, although Canino

found Diaz guilty of misconduct and sentenced him to 360 days in RHU, she neither

directed nor had knowledge of any post-sentence deprivations Diaz might endure as a

result of a guilty verdict. Without alleging that Canino knew Diaz would face “increased

scrutiny” “far outside the scope of the original misconduct sentence” rendered by her, or

alleging such increased scrutiny is authorized policy,3 Diaz fails to allege sufficient

personal involvement to state a due process claim against Canino in her individual

capacity. As the District Court stated, there was other process available to Diaz “to

challenge his conditions of confinement at SCI Smithfield . . . against the appropriate
prison officials.” App. 18.

                                        * * * * *

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is needed. The judgment of the District Court will be

AFFIRMED.


3
 Indeed, Diaz’s brief states the contrary is true, that there is no “authority allowing [or]
permitting” the “mistreatment” he has endured since leaving RHU. Appellant’s Reply
Brief at 6.

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