ALD-202                                                          NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 15-3197
                                        ___________

                                NATHANIEL L. ADDERLY,
                                             Appellant

                                              v.

      CO STOFKO; LT. DOMAGAUER; CO WHITE; CO KONDRASKI; CO KOTZ;
       LT. WILDE; CO LYNCH; LARSON, Deputy Warden; WARDEN PIAZZA;
      LT. AMEEN; CAPT. ORSWICK; CO WICHT; CO BLEICH; RON, Supervising
               Therapist Ron “Doe”; KAWALSKI, Hearing Examiner
                      ________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 3-12-cv-01546)
                         District Judge: Honorable Edwin M. Kosik
                        ____________________________________

    Submitted for Possible Dismissal for Jurisdictional Defect, 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
                                       March 31, 2016

              Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                                (Opinion filed: April 5, 2016)
                                       ___________

                                          OPINION*

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                       ___________

PER CURIAM

       Nathaniel Adderly, an inmate at SCI Houtzdale proceeding pro se and in forma

pauperis, appeals from the District Court’s order dismissing his civil-rights complaint

without prejudice for the failure to state a claim. Because the appeal presents no

substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             I.

       Adderly filed a complaint in the District Court alleging that the defendants

violated his constitutional rights in numerous ways during his time in custody at Luzerne

County Correctional Facility (“LCCF”). The complaint contains 544 paragraphs, plus an

additional 35 pages of exhibits. The first main set of allegations concerns Adderly’s

assignment to Protective Custody (“PC”) status, which included a distinctive yellow

uniform. Adderly alleged that he found the yellow uniform stigmatizing because other

inmates generally knew that such uniforms were worn by inmates charged with crimes of

a sexual nature. Adderly also alleged that his PC status set restrictions and denied access

to amenities to an extent that amounted to a constitutional violation.

       The second main set of allegations concerns a series of retaliation and conspiracy

claims. Adderly alleged that he unsuccessfully grieved his PC status, and that thereafter

he endured numerous actions and incidents (which are set out in over 400 paragraphs in

the complaint) that he contended were in retaliation for filing that grievance. In

                                             2
particular, Adderly alleged that he was unjustifiably placed in what he contended was

punitive Restrictive Housing Unit (“RHU”) confinement, and that time and again over

the next several months other disciplinary charges were brought against Adderly that he

alleged were based on false or distorted facts. Those included charges for being

disruptive and disobeying an oral order, making an aggressive move at a hallway

monitor, possessing an unknown substance, striking another inmate, hoarding materials,

use of abusive or obscene language, threatening a prison guard, spitting on a prison

guard, and other violations. Adderly also alleged that the defendants conspired to rig the

misconduct hearings and grievance proceedings related to all of these incidents. Adderly

alleged further that he suffered other adverse actions in retaliation for his grievance

concerning his PC status, such as humiliating strip searches, the denial of access to

hygiene products and clean uniforms, rough handling when cuffed and tethered (with

prison guards jerking him around by the cuffs), and the destruction or confiscation of

personal property (including legal materials).

       The defendants moved to dismiss the complaint for the failure to state a claim

upon which relief could be granted, and for the failure to make a short and plain

statement of each claim. After briefing on the motion to dismiss, Adderly filed a motion

to supplement the complaint to add additional allegations against some of the defendants.

The District Court then dismissed Adderly’s complaint, but granted Adderly 20 days to

file an amended complaint. In its memorandum and separate order, the District Court set

                                              3
forth the standards that Adderly should seek to meet in drafting an amended complaint.

As Adderly would have an opportunity to file an amended complaint, the District Court

denied the motion to supplement as moot.

       Instead of filing an amended complaint, Adderly filed a motion for reconsideration

within two weeks of the District Court’s dismissal of his complaint. The District Court

declined to reconsider its dismissal order, but again granted Adderly 20 days to file an

amended complaint. Rather than take advantage of this second chance to revise his

complaint, Adderly filed a notice of appeal within 30 days of the District Court’s order

denying his motion for reconsideration.

                                            II.

       First, we must consider our jurisdiction to hear the appeal because Adderly’s

decision to appeal from a dismissal without prejudice presents a potential jurisdictional

issue. We have jurisdiction over appeals from final decisions of the district courts. See

28 U.S.C. § 1291. “Generally, an order which dismisses a complaint without prejudice is

neither final nor appealable because the deficiency may be corrected by the plaintiff

without affecting the cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d

Cir. 1976) (per curiam). “Only if the plaintiff cannot amend or declares his intention to

stand on his complaint does the order become final and appealable.” Id. at 951-52.

Although there is no “clear rule for determining when a party has elected to stand on his

or her complaint,” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009), we have exercised

                                             4
jurisdiction when a plaintiff fails to amend within the time provided by the District Court,

see Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992).

       Here, we will infer Adderly’s intention to stand on his complaint. The District

Court dismissed Adderly’s complaint and granted Adderly 20 days to amend it. Instead

of filing an amended complaint, Adderly filed a motion for reconsideration of the

dismissal of his complaint, and then filed a notice of appeal after reconsideration was

denied. As a result, the District Court’s order is a final, appealable order. See id.

                                              III.

       We exercise plenary review over a district court’s decision to grant a Rule

12(b)(6) motion to dismiss. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.

2012). “[I]n deciding a motion to dismiss, all well-pleaded allegations . . . must be taken

as true and interpreted in the light most favorable to the plaintiffs, and all inferences must

be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(quotation marks omitted). To withstand a Rule 12(b)(6) motion to dismiss, a complaint

“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states

a plausible claim to relief will . . . be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Id. at 679. We construe

Adderly’s pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and

                                               5
we may affirm the District Court’s judgment on any basis supported by the record, see

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

       There is no substantial question that the District Court did not err in dismissing

Adderly’s complaint as drafted. The complaint fails to set out “a short and plain

statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P.

8(a)(2). Nor is each allegation set out in a “simple, concise, and direct” way. See Fed. R.

Civ. P. 8(d)(1). Instead, the complaint is rife with irrelevant facts that, even if accepted

as true, do not satisfy the elements of any of the causes of action that Adderly seeks to

bring. A complaint must “‘be presented with clarity sufficient to avoid requiring a

district court or opposing party to forever sift through its pages in search’ of the nature of

the plaintiff’s claim[.]” Glover v. F.D.I.C., 698 F.3d 139, 147 (3d Cir. 2012) (quoting

Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990)). Adderly’s complaint does not

meet that standard, and Adderly refused to amend his complaint to correct that deficiency

even when presented with multiple opportunities to do so.

       Several additional pleading deficiencies doom Adderly’s claims as set out in his

complaint. First, neither Adderly’s initial assignment to PC status nor his later

assignment to the RHU can underlie a constitutional claim based on the facts that

Adderly pleaded. To the extent Adderly sought to set out an Eighth Amendment

conditions-of-confinement claim, to survive a motion to dismiss, his complaint must have

plausibly alleged that the alleged deprivation resulted “in the denial of the minimal

                                              6
civilized measure of life’s necessities.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d

249, 256 (3d Cir. 2010). Such a denial involves “the deprivation of a single, identifiable

human need such as food, warmth, or exercise . . . .” Wilson v. Seiter, 501 U.S. 294, 304

(1991). Here, the allegations concerning Adderly’s placements do not state any facts

that, if proven, would show that Adderly was denied one of life’s minimal necessities. At

most, the facts that Adderly did plead allow the potential inference that he suffered

inconvenience or discomfort—not a constitutional deprivation.1

       Furthermore, although Adderly found the yellow uniform associated with his PC

status stigmatizing, based on his perception of other inmates’ viewpoints on that status,

he does not allege that any inmate harmed him or that prison officials failed to protect

him from harm as a result of that alleged stigmatization. See Farmer v. Brennan, 511

U.S. 825, 847 (1994) (““[A] prison official may be held liable under the Eighth

Amendment for denying humane conditions of confinement only if he knows that

inmates face a substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.”).

       Nor has Adderly adequately alleged that he suffered the deprivation of any liberty

interest pursuant to the Due Process Clause as a result of his custody status and housing


       1
         Also, to the extent Adderly might have sought to claim that the alleged rough
handling that he alluded to in his complaint was a separate Eighth Amendment violation,
that effort fails. Adderly’s complaint does not contain sufficient factual material to
plausibly allege that the amount of force Adderly endured was imposed maliciously and
in a manner that exceeded the amount of force that was appropriate under the
                                             7
assignments. State-created liberty interests may arise only when a prison’s action

imposed an “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) (concluding that

the inmate’s thirty days in the Special Holding Unit, considered within the context of

prison confinement, did not impose the type of atypical and significant deprivation of

liberty in which the state could be seen to have created a liberty interest); Mitchell v.

Horn, 318 F.3d 523, 532 (3d Cir. 2003). Adderly has pleaded no facts to support the

contention that his assignment to PC status was anything other than a regular and typical

implementation of prison regulations to protect him from potential harm. As for his later

assignment to the RHU for disciplinary violations, Adderly has not pleaded facts to

support the contention that the discipline he received was atypical or that it imposed any

significant hardship. See, e.g., Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002)

(seven months of disciplinary confinement was not an atypical and significant hardship).

       Adderly’s contention that the defendants retaliated against him for his complaints

about his PC custody status fares no better. Amid the exhaustive chronology of events

that he sets out, Adderly has not pleaded facts to sufficiently allege that his objections to

PC status were causally related to any of the purportedly adverse actions that he contends

he endured. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). In essence, Adderly

appears to attribute nearly every disciplinary action that affected him over the course of a


circumstances. See Hudson v. McMillian, 503 U.S. 1, 6 (1992).
                                         8
year to his belief that the defendants sought to punish him for complaining about this PC

status back in January 2012. Adderly repeatedly asserts that the discipline he received

was “retaliatory,” “in retaliation against” him, or “punitive” without pleading facts that

could sufficiently allege a causal link.2

       Moreover, based on the grievance materials that Adderly attached as exhibits to

his complaint, the facts as alleged indicate that the same disciplinary outcomes would

have occurred regardless of any potential retaliatory motive, which also defeats Adderly’s

retaliation claims as set out in his complaint. See id. at 334; cf. also Henderson v. Baird,

29 F.3d 464, 469 (8th Cir. 1994) (concluding that because the finding of guilt in the

inmate’s disciplinary hearing was based on “some evidence,” that finding “essentially

checkmates his retaliation claim”).

       With no facts to plausibly allege any individual acts of retaliation, Adderly also

cannot sustain a claim that the defendants collectively conspired against him. See Gen.

Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003) (holding


       2
         The lack of an adequately pleaded casual connection is alone sufficient to defeat
Adderly’s retaliation claims. Other pleading deficiencies exist as well. For example,
Adderly’s allegations concerning the destruction of legal materials do not state a claim
because Adderly did not allege that he lost the opportunity to pursue a viable legal claim.
See Peterkin v. Jeffes, 855 F.2d 1021, 1040 (3d Cir. 1988). As another example,
Adderly’s claims concerning the strip searches he endured fail based on the facts that he
pleaded. See Florence v. Bd. of Chosen Freeholders, 566 U.S. ____, ____, 132 S. Ct.
1510, 1517 (2012). Yet another example is that the inability to access hygiene products
that Adderly alleged does not rise to the level of a constitutional violation due to the
limited scope of that deprivation as alleged. C.f., e.g., Penrod v. Zavaras, 94 F.3d 1399,
1406 (10th Cir. 1996). Such examples of insufficient factual allegations pervade
                                              9
that a civil conspiracy claim requires a valid underlying tort claim). In addition, Adderly

alleges a conspiracy without pleading any facts that could support the idea that an

agreement among the various defendants to retaliate against Adderly actually existed.

We must dismiss claims, like Adderly’s conspiracy claim, that are “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements.” See

Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557 (“[A] conclusory allegation of

agreement at some unidentified point does not supply facts adequate to show illegality.”).

                                                  IV.

       Finally, we consider Adderly’s proposed supplement to his complaint—which, in

anticipation of receiving an amended complaint, the District Court did not consider. We

conclude that the supplement also contains allegations that fail to state a claim upon

which relief can be granted due to their vague and conclusory nature; or contains claims

that, on their face, flout the governing statute of limitations without meeting the standard

for relation back to Adderly’s original complaint. See Glover, 698 F.3d at 145-46.

                                      *       *         *

       Perhaps Adderly could have corrected the foregoing pleading deficiencies in an

amended complaint, but after the District Court provided him the opportunity to amend

his complaint, he declined to do so. Because Adderly’s complaint as initially drafted




Adderly’s complaint, notwithstanding its length and laborious recitation of events.
                                           10
pleaded no viable claim, this appeal presents us with no substantial question. We will

therefore affirm the District Court’s judgment.




                                            11
