                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 13-3466
                                   ___________

                          JUSTICE RASIDEEN ALLAH,
                                     Appellant

                                         v.

 GREG BARTKOWSKI, Administrator New Jersey State Prison; MICHELE R. RICCI,
 Director of the Division of Operations New Jersey Department of Corrections/Former
    Administrator of New Jersey State Prison; CHRISTOPHER HOLMES, Associate
   Administrator, New Jersey State Prison; WILLIAM MOLIENS, Former Associate
     Administrator, New Jersey State Prison; JAMES (JIMMY) BARNES, Assistant
  Superintendent New Jersey State Prison; CRYSTAL ANN RAUPP, Record Keeper
Management Control Unit Review Committee/Acting Supervisor of Social Services New
Jersey State Prison; DR. FLORA DEFILIPPO, Supervisor of Mental Health Services for
      UMDNJ and/or New Jersey State Prison; MR. ZELL, Professional Services
Representative, New Jersey State Prison; THOMAS STECKEL, Former Social Services
     Supervisor New Jersey State Prison; HATIMA ISMAIL, Professional Services
   Representative, New Jersey State Prison; CAPTAIN RICHARD ORTIZ, Custody
 Supervisor, New Jersey State Prison; CAPTAIN B. KENNEDY, Custody Supervisor,
 New Jersey State Prison; LIEUTENANT ALAIMO, Custody Supervisor, New Jersey
                                      State Prison
                      ____________________________________

                  On Appeal from the United States District Court
                           for the District of New Jersey
                      (D.C. Civil Action No. 3-11-cv-03153)
                   District Judge: Honorable Michael A. Shipp
                   ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  July 16, 2014

            Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

                           (Opinion filed: July 18, 2014)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Justice Rasideen Allah, proceeding pro se and in forma pauperis, appeals from the

United States District Court for the District of New Jersey’s order sua sponte dismissing

with prejudice and without leave to amend his civil action brought pursuant to 42 U.S.C.

§ 1983 and an order denying his motion for reconsideration. For the foregoing reasons,

we will vacate and remand for further proceedings.

                                            I.

      Allah, a prisoner at New Jersey State Prison, alleged that in November 2006 he

was assigned to Management Control Unit Detention (“MCU”), a close-custody unit in a

separate wing of the prison where prisoners are kept in solitary confinement. See N.J.

Admin. Code § 10A:5-1.3. The Management Control Unit Review Committee

(“MCURC”) held a hearing in January 2007 to determine whether Allah should be

housed in the MCU. At that hearing, the MCURC determined that Allah should be

placed in the MCU because, inter alia, he had masterminded a scheme to launder money

and introduce contraband into the prison. After the MCURC’s initial decision to place

Allah in the MCU was upheld on administrative appeal, Allah sought review with the

Superior Court of New Jersey, Appellate Division. The Superior Court affirmed the

MCURC’s decision and the New Jersey Supreme Court denied his petition for

                                            2
certification. Allah v. N.J. Dep’t of Corr., No. A-4422-06T1, 2008 WL 2245599 (N.J.

Super. Ct. App. Div. June 3, 2008), cert. denied, 957 A.2d 1172 (N.J. 2008) (table). On

at least one occasion, Allah has appealed a determination of the MCURC that continued

his placement in the MCU. See Allah v. N.J. Dep’t of Corr., 2012 WL 2345390 (N.J.

Super. Ct. App. Div. June 21, 2012).

       In 2011, Allah filed a complaint in the District Court, generally raising two sets of

claims: (1) that hearings reviewing his placement in the MCU violated his Fourteenth

Amendment due process rights, and (2) that his confinement in the MCU was cruel and

unusual in violation of his Eighth Amendment rights. 1 Allah’s due process claims

primarily relate to the January 2007 hearing that resulted in his placement in the MCU,

subsequent routine hearings reviewing his placement in the MCU, and his administrative

appeals from those hearings. Allah’s claims of cruel and unusual punishment relate to

the conditions of his confinement in the MCU. Allah alleged that he is confined almost

entirely to his cell; that other inmates on the block are mentally ill and create

disturbances; and that other inmates are unsanitary, resulting in unsanitary common

areas, rodent infestation, and noxious stenches.

       The District Court reviewed Allah’s complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), and dismissed it for failure to state claim. The District Court did not


       1
        Allah also raised several New Jersey state law claims concerning his
confinement. However, after dismissing Allah’s federal claims the District Court
declined to exercise supplemental jurisdiction over Allah’s state law claims.

                                              3
grant leave to amend after determining that amendment would be futile. Allah filed a

motion for reconsideration. In the motion, Allah contended that the District Court

overlooked several of his claims. Allah also argued that the District Court’s treatment of

his due process claim violated Wilkinson v. Austin, which held that, in conjunction with

other factors, prolonged solitary confinement can create a liberty interest. 545 U.S. 209,

223-24 (2005). The District Court denied Allah’s motion for reconsideration. Allah

timely appealed both the order denying his motion for reconsideration and the order

dismissing his complaint.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s order dismissing a complaint under 28 U.S.C.

§ 1915(e)(2)(B). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). The legal

standard for dismissing a complaint for failure to state a claim under § 1915(e)(2)(B) is

the same as that for dismissing a complaint pursuant to a motion filed under Rule

12(b)(6) of the Federal Rules of Civil Procedure. See id. “To survive a 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)). We review the denial

of a motion for reconsideration for abuse of discretion. See Lazaridis v. Wehmer, 591

F.3d 666, 669 (3d Cir. 2010) (per curiam).


                                              4
                                             III.

       We will vacate the District Court’s dismissal of Allah’s Eighth Amendment

claims. The Eighth Amendment imposes upon prison officials a duty to provide

‘“humane conditions of confinement.”’ Betts v. New Castle Youth Dev. Ctr., 621 F.3d

249, 256 (3d Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). “For the

conditions of confinement to rise to the level of an Eighth Amendment violation, they

must deny the ‘“minimal civilized measure of life's necessities.’” Id. (quoting Farmer,

511 U.S. at 835). Unsanitary conditions can be cruel and unusual. Young v. Quinlan,

960 F.2d 351, 364 (3d Cir. 1992), superseded by statute, Prison Litigation Reform Act of

1996, Pub. L. No. 104-134, 110 Stat. 1321, as recognized in Nyhuis v. Reno, 204 F.3d

65, 71 n.7 (3d Cir. 2000). To assert an Eighth Amendment conditions of confinement

claim, a prisoner must satisfy both an objective (“Was the deprivation sufficiently

serious?”) and subjective (“Did the officials act with a sufficiently culpable state of

mind?”) test. Wilson v. Seiter, 501 U.S. 294, 298 (1991). Allah alleged that he was

allowed a 10-minute shower every day and a 90-minute yard period every second or third

day. The remaining time he was confined to a small cell in a cell block that held

mentally ill inmates who banged and kicked on the cell doors throughout the day. The

noise caused headaches and sleep deprivation. Allah also alleged that the mentally ill

inmates did not clean themselves or their cells. Due to the unsanitary conditions, the cell

block smelled of urine and excrement, and was infested with pests. Further contributing

to the unsanitary conditions was the fact that inmates were not permitted access to toilets
                                              5
during the 90-minute yard period, which caused some inmates to relieve themselves on

the ground.

       The District Court concluded that Allah failed to state an Eighth Amendment

claim because “[h]e does not allege that he is not given toiletries and cleaning products to

keep himself and his own cell clean. His alleged denial of drinking water and a toilet is

limited to a 90-minute yard exercise that occurs only several days a week.” In his motion

for reconsideration, Allah alleged that the District Court overlooked his claims of sleep

deprivation and unsanitary conditions. In its opinion denying Allah’s motion, the District

Court determined that Allah’s allegations did not establish that the conditions

contributing to his sleep deprivation had persisted “for a lengthy or consistent period of

time,” and that its earlier opinion adequately considered Allah’s “surrounding sanitary

environment.” We conclude that the unsanitary conditions in the surrounding

environment that Allah alleges “serve[] no ‘legitimate penological objectiv[e].’” Farmer,

511 U.S. at 833 (quoting Hudson v. Palmer, 468 U.S. 517, 548 (1984)) (second alteration

in original). We also conclude that Allah’s allegation that “special needs inmates . . .

kick and bang on the cell doors and walls nearly every single day, for hours at a time, at

all times of the day,” sufficiently alleges that the disturbance was consistent and ongoing.

Compl. 48, June 2, 2011, ECF No. 1. Allah has alleged that prison officials were aware

of the conditions in the MCU, but failed to remedy them. See id. at 837 (holding that to

establish deliberate indifference a prison official must both know of and disregard an


                                             6
excessive risk to an inmate’s health or safety). In light of these allegations, we conclude

that it was error to dismiss Allah’s Eighth Amendment claim for failure to state a claim.

       We will also vacate the District Court’s dismissal of Allah’s Fourteenth

Amendment claims. The District Court concluded that Allah’s confinement in the MCU

did not give rise to a liberty interest in avoiding such confinement. A liberty interest is

created 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). When considering whether an inmate’s placement in segregated housing triggers

a legally cognizable interest courts should consider: (1) the amount of time spent in

segregation; and (2) whether the conditions of segregation were significantly more

restrictive than those imposed on other inmates in segregation. Shoats v. Horn, 213 F.3d

140, 144 (3d Cir. 2000) (citing Sandin, 515 U.S. at 486). In its opinion denying Allah’s

motion for reconsideration, the District Court noted that Allah has been confined in the

MCU for six years. While housed in the MCU, Allah was strictly confined to his cell,

less the aforementioned periods to shower and exercise in the yard. According to his

complaint, inmates placed in the MCU face harsher restrictions than inmates placed in

administrative segregation. For example, inmates in administrative segregation, unlike

those in the MCU, can receive “window visits,” purchase canteen items, and have

outdoor recreation in an area that is not caged. Read together, Allah’s allegations of the

duration and conditions of confinement in the MCU state an atypical and significant

hardship that implicates a liberty interest. See, e.g., Wilkinson, 545 U.S. at 223-24.
                                              7
       However, as the District Court noted, establishment of a liberty interest does not

end the procedural due process inquiry. In its November 2012 opinion, the District

Court, after concluding that Allah’s confinement did not implicate a liberty interest,

nevertheless examined whether he was provided with the process he would have been

due had a liberty interest been implicated. The District Court concluded that Allah was

given a meaningful opportunity to respond and be heard at the initial MCU placement

hearing, at the routine reviews every 90 days, and at the annual reviews. However, Allah

alleged a litany of defects during these hearings that violated his due process rights.

Primarily, Allah alleged that several of his administrative appeals were ignored; that

members of the MCURC were unfamiliar with and often violated, inter alia, Sections

10A:5-2.3 to .5 of the New Jersey Administrative Code governing MCURC proceedings;

that MCURC hearings were perfunctory and without substance; that at least one MCURC

member, Dr. Flora DeFillipo, was unaware that she was an MCURC member; that Dr.

DeFillipo signed off on MCURC decisions without realizing she had done so; and that

Dr. DeFillipo never engaged in factfinding or weighing of the evidence. 2 Reading these


       2
         In his motion for reconsideration, Allah addressed his allegations concerning Dr.
DeFillipo, which were derived from deposition testimony that she gave in a separate civil
action. In its opinion denying Allah’s motion for reconsideration, the District Court
concluded that Allah’s allegations concerning Dr. DeFillipo were not proper for review
because the deposition testimony did not qualify as “new evidence.” However, excerpts
of the deposition testimony were attached to Allah’s complaint, and he raised allegations
derived from that testimony in his complaint. See Compl. 45 to 46, ECF No. 1; Compl.
Ex. 1-84 47 to 55, June 2, 2011, ECF No. 1-5. Despite concluding that the evidence was
not new, the District Court determined that the evidence did not alter its conclusion that
the MCURC’s placement and review of Allah’s confinement in the MCU comported with
                                              8
allegations, we determine that Allah has stated Fourteenth Amendment claims that should

not have been dismissed for failure to state a claim. 3 See City of W. Covina v. Perkins,

525 U.S. 234, 239 (1999) (holding that due process requirements include a meaningful

opportunity to be heard); Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986).

                                             III.

       For the foregoing reasons, we will vacate the District Court’s November 8, 2012

and July 30, 2013 orders and remand for further proceedings. Allah’s motion to

supplement the record is denied as moot. 4




due process.
       3
         We note that in determining that Allah did not state a due process claim, the
District Court relied on decisions from the New Jersey Superior Court in which Allah had
appealed his initial placement hearing and one of his review hearings. See Allah v. N.J.
Dep’t of Corr., 2012 WL 2345390; Allah v. N.J. Dep’t of Corr., 2008 WL 2245599. It
appears that in those cases Allah presented similar claims of due process violations.
While we express no opinion on the matter, we note that on remand these cases may have
a preclusive effect on Allah’s Fourteenth Amendment claims.
       4
        Judge Roth would have affirmed the District Court’s dismissal of Allah’s
Fourteenth Amendment claims.

                                              9
