GLD-251                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-1923
                                  ___________

                      YASSIN HAYTHAME MOHAMAD,
                                      Appellant

                                        v.

             BARRY SMITH, Lieutenant in his own capacity; STEPHEN BEST,
                     Correctional Officer in his own capacity;
          ROBERT DICK, Correctional Officer 1 in his own capacity; THOMAS
                    BOGARDUS, Sergeant in his own capacity
                ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civil No. 2-09-cv-00943)
                  District Judge: Honorable Maureen P. Kelly
                  ____________________________________

      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
                                 August 9, 2012

       Before: FUENTES, GREENAWAY, JR. and BARRY, Circuit Judges

                         (Opinion filed: August 16, 2012)
                                    _________

                                   OPINION
                                   _________
PER CURIAM

       Pro se appellant Yassin Haythame Mohamad appeals the District Court’s order

granting defendants’ motion for summary judgment. Because this appeal is legally

meritless, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).

                                               I.

       In November 2009, Mohamad, then an inmate at State Correctional Institution

(“SCI”) at Forest and now at SCI-Graterford, filed a complaint against prison personnel

alleging violations of his First, Eighth, and Fourteenth Amendment rights, as well as his

rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42

U.S.C. §§ 2000cc et. seq. Mohamad alleged that, in attempting to take his photograph for

his prison identification in December 2007, defendants treated him roughly and took his

kufi in violation of his rights. In a later filing he requested injunctive relief in the form of

his removal from SCI-Forest on account of perceived threats against him from prison

personnel.

       Defendants moved for summary judgment and showed the following. Defendant

Smith was supervising Defendants Best and Bogardus as they escorted Mohamad from

the Restricted Housing Unit (“RHU”) so that he could be photographed. Defendant Dick

was responsible for recording the events on video, in conformance with the movement

restrictions imposed on Mohamad as a result of his history of assaultive behavior.

Pursuant to Department of Corrections (“DOC”) policy that no head gear be worn in

inmate identification photographs, Smith removed Mohamad’s kufi, at which point

Mohamad repeatedly stated that he would not allow his photograph to be taken and

                                               2
bowed and turned his head. Smith and Best consequently became concerned that

Mohamad would spit on them, because pursuant to the movement restrictions a spit

shield was normally required when Mohamad had contact with guards, but he was not

wearing it for the photograph. Best attempted to restrain Mohamad’s head in an effort to

shield himself and to allow the photograph to be taken. Mohamad continued to turn his

head. Defendants asserted that Mohamad then pushed back into Best, knocking him off

balance, and Best attested that he felt Mohamad’s hands trying to grab him. At that point

defendants brought Mohamad to the floor. When he was brought under control, he was

brought to his feet and the spit shield was placed on him; he was then escorted back to the

RHU. A medical assessment conducted immediately after the incident shows Mohamad

received no injury and needed no treatment. The District Court granted defendants’

motion for summary judgment because Mohamad had not filed a response indicating that

there was a genuine dispute as to any material fact with respect to any of his claims.

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291. Our review of orders granting

summary judgment is plenary. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566

F.3d 86, 89 (3d Cir. 2009). We review the denial of injunctive relief for abuse of

discretion but we review underlying factual findings for clear error, and our review of

legal conclusions is plenary. Am. Express Travel Related Servs., Inc. v. Sidamon-

Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). Because Mohamad is proceeding in forma

pauperis, we must dismiss the appeal if it is entirely without legal merit. 28 U.S.C. §

1915(e)(2)(B).

                                             3
        A party moving for summary judgment must show that there exists no real issue as

to any material fact and that the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). On appeal from an order granting a motion to dismiss or for summary

judgment, we view the facts in the light most favorable to the nonmoving party, Brown v.

Croak, 312 F.3d 109, 112 (3d Cir. 2002), but the party opposing summary judgment

“may not rest upon . . . mere allegations.” Saldana v. Kmart Corp., 260 F.3d 228, 232

(3d Cir. 2001). We agree with the District Court that defendants showed that there is no

genuine dispute as to any material fact with respect to any of Mohamad’s claims against

them.

                                             III.

        The standard to evaluate whether prison authorities’ use of force is cruel and

unusual is “whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S.

1, 6-7 (1992). The factors a court must consider to determine this are (1) the need to

apply force; (2) the relationship between the need and amount of force used; (3) the

degree of injury meted out; (4) the extent of the threat to the staff and inmate safety, as

reasonably perceived by the responsible officials based on subjectively known facts; and

(5) any efforts made to mitigate the severity of a forceful response. Giles v. Kearney,

571 F.3d 318, 326 (3d Cir. 2009). The District Court scrupulously applied these factors

and determined that defendants showed, through a variety of evidence including

misconduct records and digital video recordings of his behavior, that Mohamad had a

history of threatening and assaultive behavior, and that on the occasion in question he

                                              4
repeatedly resisted attempts to take his photograph and apparently physically backed in to

one of the defendants. Mohamad offered no evidence suggesting defendants willfully

plotted to use, or in fact used, any more force than was necessary or used force

maliciously and sadistically.1 Indeed, he even admitted that he had been resisting and

that he told medical personnel immediately after the incident that he was “okay,” and his

filings include the results of an investigation finding that the unplanned use of force was

in no way excessive.2 Mohamad provided no basis for contesting the defendants’

contention that they placed him on the floor to defuse an escalating situation in a good-

faith effort to restore discipline.

       Mohamad did little to explain his First Amendment claim, but the District Court

reasonably construed it as a Free Exercise claim.3 The District Court was likewise

correct in its conclusion that defendants are entitled to qualified immunity concerning this

claim. The qualified immunity doctrine protects government officials from liability for

civil damages to the extent that their conduct does not infringe what a reasonable person

would have known was a clearly established statutory or constitutional right. Sharp v.

Johnson, 669 F.3d 144, 159 (3d Cir. 2012). Defendant Smith showed that he acted

pursuant to a DOC policy requiring that all head gear be removed when inmate

identification photographs are taken; Mohamad could not remove it himself because he


1
  In his Concise Statement of Material Facts, Mohamad does offer Exhibit L, an unsworn
declaration by fellow inmate Gary Banks, but this declaration merely describes the
guards’ handling Mohamad in conformance with his movement restrictions.
2
  Exhibit K in Mohamad’s Concise Statement of Material Facts.
3
  Mohamad’s appellate brief confirms that it is indeed a Free Exercise claim.

                                             5
was restrained. Mohamad presented no evidence that Smith violated any protocol or any

clearly established right by removing his kufi so that his photograph could be taken.

       We also agree with the District Court that Mohamad cannot maintain a RLUIPA

action for money damages against defendants in either their individual or official

capacities, and that any claim for injunctive relief is moot.4 The statute does not permit

actions against state officials in their individual capacities. Sharp, 669 F.3d at 153.

Moreover, the Eleventh Amendment bars claims for money damages against state

officials acting in their official capacities absent the state’s consent or Congressional

abrogation. Kentucky v. Graham, 473 U.S. 159, 169 (1985). In accepting federal

funding, states do not waive their sovereign immunity to private suits for money damages

under RLUIPA. Sossamon v. Texas, ___ U.S. ___, 131 S. Ct. 1651, 1663 (2011).

Sovereign immunity thus bars Mohamad’s claims for damages against defendants in their

official capacities.

       Furthermore, his claims for injunctive relief are moot because he is no longer an

inmate at SCI-Forest and thus no longer interacts with the personnel he claimed were

threatening him. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (transfer from

the prison complained of generally moots equitable claims).

       Mohamad did little to explain his Fourteenth Amendment claim, but the District

Court reasonably construed it as an Equal Protection claim.5 The District Court was

likewise correct in its conclusion that defendants did not treat Mohamad differently from


4
 Mohamad’s appellate brief “concedes to the Magistrate[’]s findings with regard to his
RLUIPA claims.”
                                              6
those similarly situated. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985). Defendants showed that it was DOC policy that all head gear be removed for

inmate identification photographs, and Mohamad provided nothing to show that others

were permitted to wear head gear for their identification photographs.

                                              IV.

         Accordingly, this appeal is dismissed for want of legal merit.




5
    Mohamad’s appellate brief confirms that it is indeed an Equal Protection claim.
                                               7
