CLD-301                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-1886
                                  ___________

    ABDULLAH G. HUBBARD; ROBERT SAUNDERS; NORMAN INGRAM;
       JAMES A. WILSON; DAVID T. SCOTT; MICHAEL BARTLEY;
                 DAMON GIBSON; BRYON WARNER

                                        v.

                COMMISSIONER CARL C. DANBERG;
            DEPUTY COMMISSIONER THOMAS CARROLL;
   ACTING WARDEN BETTY BURRIS; RON HOSTERMAN; MIKE LITTLE;
       CAPTAIN MICHAEL MCCREANOR; LT. MICHAEL TRADER;
         SUPERVISOR LEE LEPORE; SUPERVISOR JIM MASSIE;
        SUPERVISOR TERRY YODER; SUPERVISOR ED BOWERS;
        SUPERVISOR DAN ATHERHOLT; SGT. MARVIN CREASY

                             Robert Saunders, Appellant
                   ____________________________________

                  On Appeal from the United States District Court
                            for the District of Delaware
                          (D.C. Civil No. 1:07-cv-00745)
                   District Judge: Honorable Gregory M. Sleet
                   ____________________________________

      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
                               September 30, 2010

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

                            (Filed: October 13, 2010)
                                    _________

                                    OPINION
                                           _________

PER CURIAM

       This is an appeal from the District Court’s grant of summary judgment. For the

following reasons, we will summarily affirm. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.

       Pro se appellant Robert Saunders is incarcerated in the James T. Vaughn

Correctional Center (“VCC”) in Smyrna, Delaware. In 2007, Saunders, along with eight

other plaintiffs,1 filed a pro se civil rights action in the District Court pursuant to 42

U.S.C. § 1983. The plaintiffs alleged that various prison officials discriminated against

their chapter of the NAACP on the basis of race, discriminated against African American

inmates with respect to job placement and other prison procedures, and mistreated

disabled prisoners in violation of the Americans with Disabilities Act. In their prayer for

relief, the plaintiffs requested that their case be maintained as a class action, but they

never filed a motion for class certification.

       In August 2009, defendants filed a motion for summary judgment to which

plaintiffs never responded, and months later Saunders filed his third motion for

appointment of counsel. In March 2010, the District Court granted defendants’ motion

for summary judgment and denied Saunders’s request for counsel. The District Court

found that the plaintiffs had failed to exhaust administrative remedies regarding all but




       1
           Plaintiff Mel McCallister later voluntarily dismissed his claims.

                                                2
one claim, and rejected that exhausted claim on the merits. Saunders now appeals from

that decision 2 and also requests appointment of counsel.

       We exercise plenary review over the District Court’s grant of Appellees’ motion

for summary judgment. See Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d

Cir. 2009). We apply the same standard in reviewing a motion for summary judgment as

the District Court. Id. A motion for summary judgment should be granted only if there

are no genuine issues of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). The moving party first must show that no genuine

issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

burden then shifts to the non-moving party to set forth specific facts demonstrating that a

genuine issue of material fact does exist. See Ridgewood Bd. of Educ. v. N.E. ex rel.

M.E., 172 F.3d 238, 252 (3d Cir.1999).

       The plaintiffs did not raise any genuine issues of material fact regarding

defendants’ claim of a failure to exhaust administrative remedies. See 42 U.S.C.

§ 1997e(a); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000). Defendants supported

their assertion with an affidavit by Claire Robinson, a paralegal in the Delaware

Department of Justice, stating that she conducted a search of grievance records which

yielded only one reported grievance relating to plaintiffs’ claims. See Jones v. Bock, 549


       2
       We have jurisdiction pursuant to 28 U.S.C. § 1291, and may affirm the District
Court’s judgment on any basis supported by the record. See Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir. 1999).

                                             3
U.S. 199, 216-17 (2007) (holding defendants must raise failure to exhaust administrative

remedies as an affirmative defense). The grievance was filed by Saunders and alleged

discrimination against the prison chapter of the NAACP to which he belonged – NAACP

Chapter 2032 (“Chapter 2032”). Saunders was denied relief, and the decision was upheld

on administrative appeal. Because the records search turned up no other pertinent

grievances, defendants moved for summary judgment on all other claims due to a failure

to exhaust administrative remedies.

       Although the plaintiffs made a vague reference in their amended complaint to

defendant Michael McCreanor refusing to allow grievances involving multiple inmates or

racial issues, there is no other evidence that the defendants prevented the filing of

grievances. See Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (administrative

remedy may be found to be unavailable where a prisoner is prevented by prison

authorities from pursuing the prison grievance process). To the contrary, the fact that

Saunders successfully filed a grievance militates against the conclusion that the plaintiffs

were impeded from exhausting administrative remedies. Because the plaintiffs failed to

come forward with any evidence indicating an impediment to administrative procedures,

the District Court correctly granted summary judgment as to all claims which had not

been administratively exhausted. See Pa. Prison Soc’y v. Cortes, 508 F.3d 156, 161-62

(3d Cir. 2007).




                                              4
       The plaintiffs also did not raise any genuine issues of material fact with respect to

Saunders’s claim of racial discrimination against Chapter 2032 in violation of the Equal

Protection Clause. The amended complaint claimed that the prison officials closed

Chapter 2032’s office, prevented chapter members from access to the prison computer

room, only allowed chapter meetings if security staff was available, and prevented family

and friends from attending group meetings. Evidence accompanying defendants’ motion

for summary judgment, however, shows that Chapter 2032 continues to operate and is

treated no differently than any other prison group. See Andrews v. City of Philadelphia,

895 F.2d 1469, 1478 (3d Cir. 1990) (plaintiffs alleging an equal protection violation must

demonstrate that they received different treatment from that received by other individuals

similarly situated). All prison groups which previously had access to the computer room

were prevented access to allow for more computer classes; VCC policy requires security

staff at prison group meetings if a group does not have regular volunteers to run its

programs; and family and friends are not allowed at any prison group’s regular meetings.

Because defendants produced evidence demonstrating that Chapter 2032 still operates and

was treated no differently than any other group, and plaintiffs did not provide any

evidence to the contrary, the District Court’s grant of summary judgment was proper.3




       3
        The grant of summary judgment was also proper, as the District Court mentioned,
because the plaintiffs failed to show that any of the defendants were personally involved
in any constitutional violation. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

                                              5
       We also agree with the District Court’s denial of Saunders’s request for

appointment of counsel. For the reasons outlined above, Saunders’s claims were

substantially without merit. See Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir.

2002); Tabron v. Grace, 6 F.3d 147, 155-156 (3d Cir. 1993). Accordingly, the District

Court did not abuse its discretion in denying Saunders’s request for appointment of

counsel. See Tabron, 6 F.3d at 158.4

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

affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. In

light of our disposition, Saunders’s request for appointment of counsel is denied as moot.




       4
         We note that the District Court also discussed the issue of class certification, in
part because of its implications regarding plaintiffs’ exhaustion of administrative
remedies. However, only one plaintiff, Saunders, appealed, he failed to exhaust
administrative remedies as to all his claims except for one, and that one claim was
properly dismissed on summary judgment. Accordingly, even if plaintiffs had been
certified as a class, that class would still have no legitimate claims on appeal.

                                               6
