DLD-300                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1906
                                      ___________

                                    GARY BANKS,
                                            Appellant

                                           v.

    LT. MECK, S.C.I. Forest; STEPHEN BEST, Correctional Officer, S.C.I. Forest;
              RHONDA SHERBINE; TRACEY, LPN, S.C.I. Forest
                   ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. Civil No. 10-cv-555)
                      District Judge: Honorable David S. Cerone
                     ____________________________________

        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
                                   June 27, 2013

              Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                             (Opinion filed: July 23, 2013 )
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Appellant Gary Banks, a Pennsylvania inmate, appeals from an order of the

District Court granting summary judgment in favor of the Defendants in this pro se civil
                                            1
rights action. For the following reasons, we will summarily affirm the judgment of the

District Court.

       Because we write primarily for the parties, we need only recite the background

necessary for our discussion, and we have based the following on both Banks‟ allegations

and the Defendants‟ uncontested counter-assertions. On May 9, 2008, while Banks was

housed at the State Correctional Institution at Forest located in Pine Grove, Pennsylvania

(“SCI-Forest”), he was subject to a cell extraction. Two days earlier, on May 7, 2008,

Banks had been temporarily moved from Cell JD-1012 to Cell JD-1006 so that

maintenance could be performed in Cell JD-1012, and in order to change Banks‟

permanent cell assignment.

       While being placed in Cell JD-1006, Banks threatened that he would assault staff

at the first opportunity. As a result of those threats, Defendant Meck recommended that

Banks be placed on a behavior modified meal where he would receive the same food as

other inmates, but with minimal containers. On May 8, 2008, Banks‟ permanent cell

assignment was changed from Cell JD-1012 to Cell JD-1010. The following day, Banks

began siphoning urine and feces under his cell door, contaminating his cell and the

housing unit. According to Banks, he was provoked into doing so because he was

improperly served a modified meal.

       After Banks‟ cell became contaminated, a decision was made to move Banks so

that the cell could be cleaned. Banks was given several direct orders to stop siphoning

urine and feces under his cell door, and to allow himself to be handcuffed so that he could
                                            2
be removed from the contaminated cell. After Banks refused to comply with orders, a

cell extraction team was assembled under the supervision of Defendant Meck.

       Prior to the cell extraction, Defendant Meck confirmed with the medical

department that Banks was medically cleared for the use of an Electronic Barring

Immobilization Device (“EBID”) and oleoresin capsaicin (“OC spray”) without

restriction. After the extraction team was assembled, Banks was given several more

direct orders to permit officers to handcuff him. He refused to comply. Defendant Meck

then administered the OC spray into the cell with the door closed in an attempt to gain

compliance without the use of force. After Banks again refused to come out of his cell,

an extraction was performed. During the extraction, Banks attempted to assault staff by

throwing feces and an unknown liquid on them, and by swinging at them when they

entered the cell.

       Following the extraction, Banks was placed in another cell and was medically

assessed through the window by Defendant Nurse Igoe. According to medical reports,

Banks did not sustain significant injuries as a result of the extraction, only minor

abrasions on his wrists from the handcuffs.

       In June 2011, Banks filed a second amended complaint pursuant to 42 U.S.C.

§ 1983 in the District Court. He named as Defendants the following employees at SCI-

Forest: Lieutenant Meck; Correctional Officer Stephen Best; Physicians Assistant

Rhonda Sherbine; and LPN Tracey Igoe. Banks alleged that the Defendants violated his

rights as protected by the Eighth and Fourteenth Amendments by using excessive force,
                                              3
denying him basic necessities, subjecting him to unconstitutional conditions of

confinement, and denying him adequate medical care. The District Court dismissed

Banks‟ claim against Defendant Sherbine, and later awarded summary judgment on the

claims against the other Defendants. Banks appeals.

       We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over

the District Court‟s grant of summary judgment. See Giles v. Kearney, 571 F.3d 318,

322 (3d Cir. 2009). Summary judgment is appropriate when the “movant 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). Summary action is warranted if an appeal

presents no substantial question. LAR 27.4; I.O.P. 10.6.

       Banks alleged that he was subjected to excessive force during the cell extraction.

Specifically, he claims that the use of the EBID device and OC Spray was unwarranted.

The Eighth Amendment prohibits prison officials from unnecessarily and wantonly

inflicting pain in a manner that offends contemporary standards of decency. See Hudson

v. McMillian, 503 U.S. 1, 8 (1992). When reviewing Eighth Amendment excessive-force

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.” Id. at 7.

Whether the force applied was excessive requires the examination of several factors

outlined by the Supreme Court in Whitley v. Albers, 475 U.S. 312, 321 (1986), including:

(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
                                              4
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 made to temper the severity

of a forceful response.

          We agree with the District Court that Banks failed to present any evidence that

would establish that the Defendants used excessive force in removing him from the cell.

Specifically, he did not offer any evidence contradicting the District Court‟s viewing of

the video of the cell extraction, provided by the DOC, which showed that Banks was

highly combative and that the Defendants used only the amount of force necessary to

transport him to a different cell.

          Banks does not dispute that he was given repeated orders to evacuate the cell

before OC spray was utilized. Nor does he dispute that he was forcibly removed only

after the spray had no apparent effect on him. Further, Banks has not set forth any

evidence supporting his claim that he was “tortured” during the incident. To the contrary,

the District Court observed that the recording did not show that Banks was ever punched,

kicked, or pulled by his restraints during the incident. Thus, because there was no basis

upon which a reasonable jury could conclude that the Defendants used excessive force in

removing Banks from his cell, we will affirm the District Court‟s summary judgment

ruling.

          Banks also argues that he was unreasonably denied medical attention following

the cell extraction. An inmate making an Eighth Amendment claim on the basis of the

denial of medical treatment must show “(1) that the defendants were deliberately
                                               5
indifferent to [his or her] medical needs and (2) that those needs were serious.” Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106

(1976)). Here, the defendants submitted the medical reports prepared after the relevant

incidents. The reports belie Banks‟s claims.1

       Following the cell extraction, Banks was assessed by Defendant Igoe. Banks had

indentations around his wrists from the application of handcuffs, but no treatment was

needed. Banks was instructed to put in a sick call if he needed follow-up treatment.

When Banks was assessed a few days later, it was noted that the abrasions to his wrists

were healing and he had good range of motion. Banks offers nothing more than his bare

assertions to dispute the Defendants‟ evidence that they were not deliberately indifferent

to his serious medical needs. Thus, the District Court properly granted summary

judgment on this claim.

       Banks also alleges that his Eighth Amendment rights were violated when he was

temporarily placed on a behavior modified meal plan. As an initial matter, we note that

this complaint does not rise to the level necessary to form the basis of an Eighth

Amendment violation. See, e.g., LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993)

(use of a “temporary Nutraloaf diet does not deny „the minimal civilized measure of life‟s

necessities‟”). Further, as the District Court noted, Banks was given the same meal as


1
  The District Court earlier dismissed this claim against Defendant Sherbine after Banks
conceded that he could not maintain an Eighth Amendment claim against her due to her
lack of personal involvement in his care. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). The District Court did not err in so doing.
                                              6
other inmates, albeit in a paper bag. That decision was reasonably made after Banks

threatened the safety of staff members. Summary judgment was therefore appropriate.

        Finally, Banks challenges the conditions of his confinement following the cell

extraction. A prisoner making a conditions-of-confinement claim must satisfy the two-

part test established in Farmer v. Brennan, 511 U.S. 825 (1994). First, the prisoner must

show that he was subjected to a sufficiently serious deprivation that resulted in the denial

of “the minimal civilized measure of life‟s necessities.” Id. at 834 (internal quotations

and citation omitted). Second, the prisoner must show that the defendant was

“deliberately indifferent” to inmate safety. Id.

        Although Banks claimed that he was held for approximately nine days in a “strip

cell” without clothes, running water, a working toilet, and other necessities, the

Defendants produced evidence to establish that these claims were untrue. Banks offered

no evidence to the contrary. Thus, we conclude that the District Court properly granted

summary judgment on this claim.

        For the foregoing reasons, no substantial question is presented and we will

summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P.

10.6.




                                             7
