BLD-041                                                        NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 15-2260
                                       ___________

                     ANTHONY E. PROCTOR, in his official capacity,
                                            Appellant

                                             v.

     SGT. BURKE, Captain, in his official capacity; C.O. HART, in his official capacity;
    CAPT. BEYERS, in his official capacity; HEARING EXAMINER P. MCKISSOCK, in
                                    his official capacity
                     ____________________________________

                      On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              (D.C. Civil No. 2-13-cv-01284)
                       Magistrate Judge Honorable Cynthia R. Eddy

                        ____________________________________

           Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
             or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     November 5, 2015
                Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges


                            (Opinion filed: November 10, 2015)
                                         _________

                                        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.
       Pro se appellant Anthony E. Proctor appeals from the judgment of the United

States District Court for the Western District of Pennsylvania in his civil rights case. As

the appeal does not present a substantial question, we will summarily affirm the decision

of the District Court.

                                             I.

       Anthony E. Proctor is a state prisoner, in the custody of the Pennsylvania

Department of Corrections and previously incarcerated at SCI-Mercer. Proctor assaulted

an inmate, Kevin Davis, in order to defend another inmate’s honor, and refused to talk to

a guard about the incident. Subsequently, he tried to enter a yard without authorization

and was told to leave. During his next attempt to enter the same yard, Proctor was

ordered to submit to a pat search. He refused to do so and resisted. He was handcuffed

and forced to the ground. Because Proctor refused to walk, guards carried and then drove

him from that location to the Restricted Housing Unit (“RHU”). At the RHU, Proctor

refused to allow a prison guard to photograph his hands. The prison filed two misconduct

reports against Proctor, and he was subject to disciplinary hearings.

       Proctor filed an amended complaint against Sergeant Burke, Correctional Officer

Hart, Captain Byers, and Hearing Examiner P. McKissock,1 proceeding under 42 U.S.C.

§ 1983. Proctor alleged that: (1) Sergeant Burke and C.O. Hart used excessive force

against him; (2) they and Captain Byers retaliated against him for asserting his due

process rights and exercising his Fifth Amendment right to be free from self-


1
 Hearing Examiner P. McKissock was referred to as both the “hearing examiner” and
“HEX” in the record below.
                                             2
incrimination; and (3) Hearing Examiner McKissock violated his procedural due process

rights under the Fourteenth Amendment. Proctor asked for $1,200,000 in compensatory

and punitive damages, “a life-time of full medical coverage from a medical provider

chosen by the Plaintiff,” and $100,000 to educate himself. After discovery closed, the

Court found that Proctor had not adduced evidence sufficient to create a genuine issue of

fact on any of his claims, and granted summary judgment in favor of the defendants. 2

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s order granting summary judgment. 3 See Giles v. Kearney, 571 F.3d 318, 322

(3d Cir. 2009). A district court may grant summary judgment only when the record

“shows that there is 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). When making this analysis, a

district court must credit the evidence of the non-moving party, and draw all justifiable

inferences in the non-movant’s party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). A mere “scintilla of evidence in support of the [non-moving party]’s

position will be insufficient” to create a genuine issue of fact. Id. at 252. The non-

moving party “must show where in the record there exists a genuine dispute over a

material fact.” See Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007). The


2
  The parties consented to have the case heard by a magistrate judge, pursuant to 28
U.S.C. § 636(c)(1).
3
  We may summarily affirm a decision of the District Court if the appeal does not raise a
substantial issue. 3d Cir. LAR 27.4; I.O.P. 10.6.
                                             3
non-moving party cannot rest on his complaint or answer, but must point to affidavits,

depositions, interrogatory answers, and/or any admissions in establishing that there are

material, disputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

                                    A. Retaliation Claims

       The District Court correctly entered summary judgment on Proctor’s retaliation

claims because at a minimum, he did not provide evidence to establish that the

disciplinary actions taken against him were for invoking his due process rights and right

against self-incrimination. In order to succeed in a retaliation claim, a plaintiff must

establish three elements. First, he must demonstrate that his conduct was constitutionally

protected. Then, he must show retaliatory action “‘sufficient to deter a person of ordinary

firmness from exercising his [constitutional] rights[.]’” Rauser v. Horn, 241 F.3d 330,

333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

Finally, he must establish a causal link between his constitutionally protected conduct

and the adverse action taken against him. Id. In the prison context, the plaintiff has the

“initial burden of proving that his constitutionally protected conduct was ‘a substantial or

motivating factor’ in the decision to discipline him.” Id. If the plaintiff meets this

burden, it shifts to the defendants to prove, by a preponderance of the evidence, that they

would have taken the same action absent the protected activity. Id. When prison

disciplinary hearings are used to retaliate against prisoners for their exercise of a

constitutional right, such proceedings can violate due process. See Mitchell v. Horn, 318

F.3d 523, 530-31 (3d Cir. 2003) (quoting Mensinger, 229 F.3d at 653)).



                                              4
       Proctor alleged that he invoked his Fifth Amendment right against self-

incrimination in response to questioning by Defendant Burke about his assault of Kevin

Davis. Proctor also alleged that Captain Byers ordered Proctor to submit to having his

hands photographed, and that Proctor invoked his right against self-incrimination in

response. He alleged that the pat search and the disciplinary hearings were retaliatory

actions taken for exercising his Fifth Amendment right. He also argued that the

misconduct charges, the disciplinary hearings, and his RHU placement were retaliatory

actions taken for his demands for due process.

       The defendants filed several declarations and official reports in support of their

motion for summary judgment. Defendant Charles Hart’s declaration stated that “[p]at

searches are randomly conducted throughout the prison to maintain discipline and ensure

the safety and security of other inmates and staff.” Dist. Ct. dkt. # 24-3, ¶ 6. Hart stated

that Proctor refused to submit to the pat search, and the other exhibits that the defendants

submitted state the same. The defendants pointed to this evidence to show that the

misconduct charges were properly filed, as Proctor refused to follow orders, verbally

abused the officers, and again refused orders at the RHU. The defendants also cited to

the record to demonstrate that the core elements of due process were followed.

       The only evidence that Proctor submitted to defend against the defendants’

evidence was an “Affidavit of Confession, Pre-Trial Narrative, in Part, In Argument

Diagram Form, In part, Venn Diagram Form, in Part, Deductively Valid Conditional




                                              5
Arguments” (hereafter “Affidavit”).4 Proctor’s Affidavit is a mix of narrative and

argumentation, but we will treat the factual assertions as if filed in an affidavit, as Proctor

swore them under oath.5 In the Affidavit, Proctor does not state that he submitted to the

pat search, although he states the attempt was a pretext for an investigation, because he

assaulted Kevin Davis and then refused to answer questions. The District Court stated

that there was no evidence that Proctor had assaulted the other inmate, but Proctor’s own

Affidavit is evidence that he did. See Brooks v. Kyler, 204 F.3d 102, 108 n.7 (3d Cir.

2000). However, nothing in the Affidavit itself or otherwise found in the record

demonstrates that the attempted pat search was the result of a retaliatory motive. In fact,

viewing the record in the light most favorable to Proctor, any pat searches of Proctor

appear entirely appropriate.

       With regards to the disciplinary hearings, there is also insufficient record evidence

to establish that they were retaliatory actions. Proctor refused to follow two orders and

was properly disciplined for the failure to do so. He was, in fact, found guilty of

threatening an employee, using abusive language to an employee, and twice refusing to

obey an order. Even if Proctor is correct that he was being retaliated against, the

defendants have adequately shown that the attempted pat search and the hearings would

have occurred regardless of Proctor’s refusal to answer questions or have his hands

photographed. As such, the defendants were entitled to summary judgment.

4
  Often, prisoners may only have their own affidavits due to the practical difficulties of
investigating from behind bars. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993); see
also Brooks v. Kyler, 204 F.3d 102, 108 n.7 (3d Cir. 2000).
5
  See Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985) (treating similar, pro se filed
documents similarly).
                                               6
                                B. Eighth Amendment Claim

       The District Court correctly entered summary judgment on Proctor’s Eighth

Amendment claim because he did not provide evidence to establish that the force that

was used against him was maliciously and sadistically intended to cause harm. The

unnecessary and wanton infliction of pain is considered cruel and unusual punishment

under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 6 (1992). When

evaluating excessive force claims, the key inquiry is “whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Id. at 7. In making this inquiry, courts examine a number of factors: “(1) the

need for the application of force; (2) the relationship between the need and the amount of

force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the

safety of staff and inmates, as reasonably perceived by responsible officials on the basis

of the facts known to them; and (5) any efforts to temper the severity of a forceful

response.” Brooks, 204 F.3d at 106. De minimis injuries may suffice to state a claim for

excessive force. Id. at 103.

       The defendants provided evidence showing: (1) that there was a need for the

application of force; (2) that the relationship between the need and the use of force was

reasonable; (3) a lack of injuries inflicted; and (4) efforts to temper the severity of the

forceful response. The declarations and reports that the defendants submitted show that

Proctor failed to cooperate; that he issued verbal threats; and that he refused to walk. In

Incident Report B 172125, which was admitted into evidence by both Proctor and the



                                               7
defendants, Proctor threatened, “If I whipped one of you pigs asses, you would quit

picking on a [expletive deleted.]”

       Proctor does not deny that he issued threats, although he contends that a portion of

the videotape has been suppressed. The video shows Proctor refusing to walk on his own

and being carried by four officers. At the beginning of the video, he yells, “carry me.”

He repeats this several times over the course of the video. Dist. Ct. Dkt. # 24-8. He

further yells, “Earn your fucking keep.” He repeats that “you threw me down.” In fact,

he yells, “This is how I go now – this is how I go now – I go down with a fight, I’m not a

pussy,” in addition to a number of other inflammatory statements. The officers carrying

him lower him to the ground twice, and do not throw him or slam him down. When

placing him onto the cart, they do not drop him or shove his head into the cart. Proctor’s

medical records show only bruising to his chin. There is no indication in the record that

this particular video has been suppressed, and the video file appears complete. In fact,

Proctor’s Affidavit again undercuts his case. Even crediting the facts in his affidavit, he

has offered no evidence that the officers utilized excessive force. Indeed, they had reason

to view him as a threat to inmate and staff safety if they knew he had assaulted another

inmate. As such, the defendants were entitled to summary judgment.

                      C. Fourteenth Amendment Due Process Claim

       Finally, the District Court correctly entered summary judgment on Proctor’s

Fourteenth Amendment due process claim. When raising a procedural due process claim,

a plaintiff must allege an injury to his life, liberty, or property. See Tillman v. Lebanon

Cty. Corr. Facility, 221 F.3d 410, 421 (3d Cir. 2000). In analyzing these claims, courts

                                              8
must determine whether the injury alleged is an injury within the meaning of the “life,

liberty, or property” clause of the Fourteenth Amendment. See Shoats v. Horn, 213 F.3d

140, 143 (3d Cir. 2000). Regarding procedural fairness in prison proceedings, where a

prisoner has the opportunity to have his case heard and to defend against “allegedly

falsified evidence and groundless misconduct reports,” due process is satisfied. Smith v.

Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002). Similarly, confinement alone will not

always violate a protected liberty interest. Id. at 654. Where the plaintiff is a prisoner, a

state-created liberty interest can arise only when a prison’s action “imposes atypical and

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

Sandin v. Conner, 515 U.S. 472, 484 (1995).

       Proctor alleged that the prison filed false misconduct charges and conducted sham

disciplinary hearings. He also alleged that his placement in the RHU was unjustified. He

argued that the misconduct charges, the disciplinary hearings, and his RHU placement

violated his due process rights.

       Again, the defendants pointed to evidence contained in the declarations and the

misconduct reports to show that the misconduct charges were properly filed, as Proctor

refused to follow orders, verbally abused the officers, and again refused orders at the

RHU. The defendants also cited to the record to demonstrate that the core elements of

due process were followed, and that Proctor had the opportunity to have his case heard

and defend himself. The defendants stated that because the misconduct reports were

properly filed and the disciplinary hearings properly conducted, Proctor’s placement in

the RHU was appropriate. The record evidence illustrated that Proctor’s placement in the

                                              9
RHU did not appear to impose an atypical and significant hardship in relation to ordinary

prison life.

       Again, the only evidence that Proctor provided is contained in his Affidavit. His

Affidavit provided no factual basis to think that the misconduct charges were misfiled, as

Proctor admitted that he disobeyed an order from Captain Byers. Again, Proctor did not

deny that he disobeyed the pat search. The failure to submit to the pat search, the manner

in which he conducted himself in the video, and his admission that he disobeyed an order

from Captain Byers adequately demonstrate the reasons for the misconduct charges and

the disciplinary hearings. Proctor also provides no evidence to support his claim that his

RHU placement imposed any atypical and significant hardship.

       For the reasons stated above, we will summarily affirm the District Court’s

decision.




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