ALD-073                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-3317
                                     ___________

                                TIMOTHY DOCKERY,
                                           Appellant

                                           v.

 JEFFREY A. BEARD, Secretary of Corrections; SUPERINTENDENT RAYMOND J.
  SOBINA; SUPERINTENDENT BRIAN V. COLEMAN; CHRISTINE KENNEDY,
 Grievance Coordinator; RHONDA HOUSE, Grievance Coordinator; KERRI CROSS,
Hearing Examiner; F. NUNEZ, Hearing Examiner; CAPTAIN LEGGET; CAPTAIN T.
RISKUS; LIEUTENANT LESURE; LIEUTENANT VOJACEK; SERGEANT BERTO;
   SERGEANT BITTNER; JOHNSON, Correctional Officer; GRIFFIN, Correctional
   Officer; COLLINS, Correctional Officer; DOBIS, Correctional Officer; RICKET,
Correctional Officer; JENNINGS, Correctional Officer; ANKRON, Correctional Officer;
  VOJACEK, Correctional Officer; OFFICER JOHN DOE; R. TRETINIK, Corrections
   Health Care Administrator; CHRIS MYERS, Physician Assistant; NURSE TONY;
JENNIFER WILLIAMS, Mailroom Staff; CAPTAIN DAVID W. NEAL, Commanding
   Officer of the Pennsylvania State Police, individually and in their official capacity;
   D.P. BURNS, former Deputy Superintendent; POPOVICH, Unit Manager; BUSH,
                                        Sergeant
                       ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2:09-cv-00732)
                    District Judge: Honorable Terrence F. McVerry
                     ____________________________________

        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
                                 December 20, 2012


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              Before: SLOVITER, VANASKIE and WEIS, Circuit Judges
                         (Opinion filed: January 11, 2013)
                                    _________

                                        OPINION
                                        _________

PER CURIAM.

       Timothy Dockery, an inmate currently incarcerated at SCI Frackville in Frackville,

Pennsylvania, appeals from an order of the United States District Court for the Western

District of Pennsylvania granting Appellees‟ motion for summary judgment and denying

his motions for summary judgment for his civil rights complaint pursuant to 42 U.S.C. §

1983. Because this appeal does not present a substantial question, we will summarily

affirm. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

                                               I.

       Because we primarily write for the parties, we need only recite the facts necessary

for our discussion. In his complaint, Dockery alleges that he was charged with two

fabricated misconducts after his sister lodged a complaint about corrections officers being

intoxicated at work. Two weeks later, Dockery was subjected to a cell search. After the

search, he refused to re-enter his cell and relinquish the handcuffs. He subsequently

received sixty additional days in disciplinary custody for threatening an employee and

refusing to obey an order.

       On September 11, 2007, Dockery found a misconduct form containing a threat

against Muslims on the floor of his cell. After an investigation, staff concluded that
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Dockery likely obtained a blank misconduct form to attempt to discredit staff or obtain a

transfer. Dockery was not charged with any disciplinary infractions.

       On November 20, 2007, Dockery was transferred to SCI Fayette and was placed in

administrative custody until his complete records were received to determine his housing

needs. A subsequent determination was made to keep him in administrative custody for a

possible Special Management Unit (“SMU”) referral. Dockery was later informed that

he would be recommended for placement on the Restricted Release List (“RRL”).

       On September 16, 2008, Dockery received a misconduct report for assaulting

Officer Ankron with a food tray and was placed on a “behavior modified diet” of food

loaf for five days. Approximately two months later, Dockery was subjected to a cell

search. After the search, he refused to relinquish the handcuffs, and officers used a tether

attached to the cuffs to pull his hands through the door slot to prevent him from using the

cuffs as a weapon. Dockery suffered abrasions to his wrist, and a nurse instructed him to

wash his wrist with soap and water. Furthermore, on November 8, 2008, Dockery

received notice that he was being referred for placement in the Secure Special Needs Unit

(“SSNU”).

       On December 30, 2008, Dockery called Lieutenant Vojacek to his cell to report a

leaking toilet. Vojacek instructed him not to flush the toilet while he turned off the water

supply. Dockery disregarded this instruction and exposed Vojacek‟s face to human

waste, requiring him to seek medical treatment. Dockery was found guilty of refusing to

obey an order, received ninety days in disciplinary custody, and was assessed the costs of
                                             3
Vojacek‟s medical treatment. Later, on March 4, 2009, medical staff examined Dockery

in his cell because of his participation in a hunger strike. Pursuant to policy, Dockery‟s

inmate account was debited $10 for this treatment. Dockery‟s inmate account was also

debited $8.87 to cover costs incurred with replacing his broken typewriter.

       Dockery filed his complaint on June 8, 2009 and filed an amended complaint on

August 19, 2009. On September 24, 2010, the District Court granted in part and denied

in part Appellees‟ motions to dismiss. On September 27, 2011, the District Court granted

defendant Myers‟ motion for summary judgment and dismissed Dockery‟s claims against

Williams and Lieutenant Vojacek. Dockery filed motions for summary judgment on

January 11, 2012 and April 27, 2012, and the remaining defendants filed a motion for

summary judgment on February 1, 2012. On May 22, 2012, a Magistrate Judge

recommended that Dockery‟s motions be denied and the defendants‟ motion be granted.

On July 12, 2012, the District Court adopted the recommendation, granted the

defendants‟ motion for summary judgment, denied Dockery‟s motions, and entered

judgment in favor of Defendants. Dockery then timely filed his notice of appeal.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court‟s order granting summary judgment. See Giles v. Kearney, 571

F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate only when the record

“shows that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The moving party has
                                             4
the burden of demonstrating that there is no genuine issue as to any material fact, and

summary judgment is to be entered if the evidence is such that a reasonable fact finder

could find only for the moving party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854

(3d Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We

may summarily affirm if the appeal does not present a substantial question, and may do

so on any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.

2011) (per curiam).

                                            III.

       Section 1983 provides private citizens with a means to redress violations of federal

law committed by state officials. See 42 U.S.C. § 1983. To establish a claim under §

1983, a plaintiff “must establish that she was deprived of a federal constitutional or

statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).

       Dockery first alleges that he suffered several instances of retaliation by prison

staff. To sustain a retaliation claim, an inmate must demonstrate that (1) he engaged in

constitutionally protected conduct; (2) he suffered adverse action; and (3) the

constitutionally protected conduct was “a substantial or motivating factor” for the adverse

response. See Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002); see also Rauser

v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). If the prisoner makes a prima facie showing

that his constitutionally protected conduct was a motivating factor in the decision to

discipline, the defendant then has the burden of showing that the same disciplinary action


                                             5
would have been taken even in the absence of the protected activity. See Rauser, 241

F.3d at 334.

       The District Court properly granted summary judgment to Appellees for

Dockery‟s retaliation claims. First, the record establishes that he did not suffer any

adverse action because no disciplinary action was taken with regard to the two allegedly

forged misconduct reports. Second, evidence concerning Dockery‟s guilt of the various

disciplinary offenses shows that Appellees‟ action was reasonably related to a legitimate

penological interest and that Dockery would have been charged regardless of any

protected activity he was engaged in. See Rauser, 241 F.3d at 334; see also Carter, 292

F.3d at 159 (affirming summary judgment in favor of defendants on retaliation claim

when “the quantum of evidence” concerning the prisoner‟s misconduct showed that he

would face disciplinary action regardless of his protected activity); Henderson v. Baird,

29 F.3d 464, 469 (8th Cir. 1994) (stating that a finding of “some evidence” in support of

a disciplinary determination “checkmates” a retaliation claim).

       Third, there is no evidence connecting Dockery‟s placement in both administrative

custody and the SSNU to any particular protected activity. Furthermore, Dockery

conceded in his grievance regarding his housing placement that he could not say anything

to justify his “problematic” past. Finally, nothing connects the cell search, confiscation

of property, and failure to return Dockery‟s in-cell property to any particular protected

activity. Furthermore, the search of Dockery‟s cell was motivated by a legitimate


                                             6
penological interest to determine whether he was in possession of blank misconduct

report forms because of Dockery‟s prior grievances alleging the receipt of forged reports.

       Dockery also raises two Eighth Amendment claims alleging the use of excessive

force during two separate incidents. To review these claims, we must determine whether

the “force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).

Factors to consider are: (1) the need for force, (2) the relationship between that need and

the amount of force used, (3) the extent of the injury, (4) the extent of the threat to safety

“as reasonably perceived by responsible officials,” and (5) “any efforts made to temper

the severity of a forceful response.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)

(quoting Whitley v. Albers, 475 U.S. 312, 321 (1986). Whether the force was excessive

depends on the “extent of the force” and the surrounding circumstances, not upon the

“resulting injuries.” Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).

       As an initial matter, the record contains no evidence that officers used any type of

force to restrain Dockery when he struck Officer Ankron in the leg with a food tray. His

second claim stems from an incident during which he suffered slight abrasions to his

wrist after officers pulled the tether attached to Dockery‟s handcuffs to access the cuffs

for removal when Dockery refused to have the cuffs removed. This evidence indicates

that officers applied minimal force in a “good-faith effort to maintain or restore

discipline,” Hudson, 503 U.S. at 7; accordingly, the District Court properly granted

summary judgment to Appellees for Dockery‟s second excessive force claim.
                                              7
       Similarly, the District Court properly granted summary judgment to Appellees on

Dockery‟s Eighth Amendment claim of deliberate indifference against Officer Jennings.

“Only „unnecessary and wanton infliction of pain‟ or „deliberate indifference to the

serious medical needs‟ of prisoners are sufficiently egregious to rise to the level of a

constitutional violation.” White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990)

(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976). However, absent a reason to

believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not

treating) a prisoner, a non-medical prison official . . . will not be chargeable with the

Eighth Amendment scienter requirement of deliberate indifference.” Spruill v. Gillis,

372 F.3d 218, 236 (3d Cir. 2004); see also Durmer v. O‟Carroll, 991 F.2d 64, 69 (3d Cir.

1993). The record establishes that Officer Jennings was present when a nurse examined

Dockery‟s wrist and instructed him to wash his wrist with soap and water. Accordingly,

there is no evidence that Officer Jennings deliberately interfered with Dockery‟s receipt

of necessary medical treatment.

       Dockery also alleges that his Eighth Amendment rights were violated because of

the conditions of confinement he encountered in the special housing units at both SCI

Forest and SCI Fayette. 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
                                              8
harm” and that prison officials demonstrated “deliberate indifference” to his health or

safety. Id. However, only “extreme deprivations” are sufficient to present a claim for

unconstitutional conditions of confinement. Hudson, 503 U.S. at 8-9. “Relevant

considerations include the length of confinement, the amount of time prisoners must

spend in their cells each day, sanitation, lighting, bedding, ventilation, noise, education

and rehabilitation programs, opportunities for activities outside the cells, and the repair

and functioning of basic physical activities such as plumbing, ventilation and showers.”

Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (citing Tillery v. Owens, 907 F.2d 418,

427 (3d Cir. 1990).

       We agree that Appellees were entitled to summary judgment for these claims. As

an initial matter, we have previously held that the conditions in restrictive housing units

in Pennsylvania prisons do not violate the Eighth Amendment. See Griffin v. Vaughn,

112 F.3d 703, 709 (3d Cir. 1997) (holding that the restrictive conditions in administrative

custody in Pennsylvania state correctional institutions, in and of themselves, do not

violate the Eighth Amendment). Nothing in the record indicates that officers, acting with

deliberate indifference, exposed Dockery to noise levels and the throwing of human

waste and other objects. Furthermore, the District Court properly determined that

Dockery‟s complaints regarding behavior modified diets, showers, and exercise did not

rise to the level necessary to form the basis of Eighth Amendment violations. See, e.g.,

LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (“Because a temporary Nutraloaf

diet does not deny „the minimal civilized measure of life‟s necessities,‟ its use falls short
                                              9
of the threshold deprivation necessary to form the basis of an Eighth Amendment

violation.”); Wishon v. Gammon, 879 F.2d 446, 449 (8th Cir. 1992) (forty-five minutes

of exercise per week not unconstitutional); Knight v. Armontrout, 878 F.2d 1093, 1096

(8th Cir. 1989) (denial of outdoor recreation for thirteen days did not violate the Eighth

Amendment); Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988) (limiting

inmates to one shower a week does not violate the Eighth Amendment). Accordingly, the

District Court properly granted summary judgment to Appellees on Dockery‟s claims

regarding his conditions of confinement.

       Lastly, Dockery alleges that his procedural due process rights were violated

through his placement in special housing units, the confiscation of his property, and

various assessments on his inmate account. Procedural due process protection “for a state

created liberty interest . . . is limited to those situations where deprivation of that interest

„imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.‟” Griffin, 112 F.3d at 706 (quoting Sandin v. Conner, 515 U.S.

472, 484 (1995). No liberty interest is implicated where the state action does not “present

a dramatic departure from the basic conditions of confinement.” Sandin, 515 U.S. at 484.

We must consider the duration of the disciplinary confinement and the conditions of that

confinement in relation to other prison conditions. Id.

       Assuming that Dockery has a protected liberty interest because of the length of

time he spent in special housing units, the record establishes that his placement was

periodically reviewed by prison staff, and such a procedure complies with due process.
                                               10
See Shoats v. Horn, 213 F.3d 140, 147 (3d Cir. 2000) (in Pennsylvania, periodic review

of inmates indefinitely confined to administrative confinement meets due process

requirements). Furthermore, the record establishes that Dockery‟s assignment to special

housing was based in part upon his past behavior. “[D]ue process is not violated by

placing an inmate in administrative custody based on past conduct that furnishes a basis

for predicting that the inmate will engage in future acts of violence if corrective measures

are not taken.” Fraise v. Terhune, 283 F.3d 506, 523 (3d Cir. 2002). Accordingly, the

District Court properly granted summary judgment to Appellees for this claim.

       Dockery also alleges that he was deprived of his in-cell property upon his return to

SCI Fayette. Although Dockery‟s property was not returned to him through the

grievance process, Appellees were entitled to summary judgment on his deprivation of

property claim because he has an adequate post-deprivation remedy in state tort law. See

Daniels v. Williams, 474 U.S. 327, 328 (1986) (negligent acts of officials causing

unintentional losses of property do not implicate due process); Hudson v. Palmer, 468

U.S. 517, 533 (1984) (intentional deprivations of property do not violate due process if a

meaningful post-deprivation remedy for the loss is available); see also 42 Pa. Cons. Stat.

Ann. § 8522(a), (b)(3) (common law action for conversion); Tillman v. Lebanon Cnty.

Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000).

       “Inmates have a property interest in funds held in prison accounts,” Reynolds v.

Wagner, 128 F.3d 166, 179 (3d Cir. 1997), and so they are “entitled to due process with

respect to any deprivation of this money,” id. We agree that Dockery received adequate
                                             11
due process for the deductions for the typewriter and medical co-pay taken out of his

account because he took advantage of an adequate post-deprivation remedy—the

grievance process—to challenge these assessments. Furthermore, with regards to the

medical co-pay, “this is not a situation in which [Dockery is] deprived of the benefits of

[his] property and receiving nothing in return; rather in exchange for the fees, [he]

receive[s] the benefit of health care, the value of which undoubtedly exceeds the modest

fee assessed.” Id. at 180 (alterations in original). Finally, the record establishes that

Dockery was afforded a pre-deprivation disciplinary hearing prior to his account being

assessed for Lieutenant Vojecek‟s medical bills following Dockery‟s use of human waste

to assault him. See Burns v. Pa. Dept‟ of Corr., 642 F.3d 163, 171-72 (3d Cir. 2011) (an

inmate is entitled to pre-deprivation notice and a hearing before his account is charged for

medical expenses incurred as the result of a finding of guilt for assault). Accordingly, the

District Court properly granted summary judgment to Appellees for these claims.

                                             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.




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