                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3392
                                       ___________

                                   DANTE BURTON,
                                             Appellant

                                             v.

                  CORRECTION OFFICER GIROUX, RHU Officer;
                      JOHN DOE, Shift Commander; RYAN
                         SZELEWSKI, Hearing Examiner
                    ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 1-18-cv-00131)
                       District Judge: Honorable Kim R. Gibson
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 1, 2019
            Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

                           (Opinion filed: December 18, 2019)
                                      ___________

                                        OPINION *
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Dante Burton appeals from the order of the District Court dismissing his

complaint. We will affirm.

                                             I.

       We accept Burton’s factual allegations as true for present purposes only. Burton is

a Pennsylvania prisoner who was housed at all relevant times in the Restricted Housing

Unit at SCI-Albion. In his complaint below, Burton alleged that his prison had a policy

of allowing prisoners to cover their cell door windows for privacy while using the toilet.

Burton further alleged that he and other prisoners generally did so without incident.

       On February 19, 2018, however, Officer Giroux knocked at Burton’s door while

Burton had his window covered. When Burton told Giroux that he was using the toilet,

Giroux ordered him to remove the cover and insisted that he “wanted to see [Burton] on

the toilet.” (ECF No. 1-1 at 5.) Burton responded that wanting to see him on the toilet

constituted sexual harassment and that he was going to “file a PREA complaint” against

Giroux. Giroux responded “you do that” and moved on. (Id.)

       A few hours later, corrections officers entered Burton’s cell and took everything

but the jump suit he was wearing. 1 Giroux also filed a misconduct charge against Burton

for disobeying his order to uncover the cell door window. Burton complained to hearing




1
 Burton included a number of allegations related to this confiscation but, as the District
Court observed, he did not assert any independent claim on the basis of those allegations.
Nor does he argue on appeal that he intended to do so.

                                             2
officer Szelewski that the charge was in retaliation for Burton’s statement that he would

file a complaint. Szelewski agreed with Burton but found him guilty anyway, though

Szelewski ran Burton’s penalty concurrent to one previously imposed.

       On the basis of these allegations, Burton filed a motion for leave to proceed in

forma pauperis (“IFP”), along with a complaint asserting three claims. First, he asserted

a claim under 42 U.S.C. § 1983 that Giroux retaliated against him for exercising his First

Amendment rights. Second, he raised the same claim against Szelewski. Finally, he

claimed that a John Doe shift commander violated Pennsylvania law by authorizing the

confiscation of property from Burton’s cell before a finding of misconduct.

       A Magistrate Judge issued a report recommending that the District Court deny

Burton’s motion for leave to proceed IFP. After Burton objected, the Magistrate Judge

issued a second report recommending in the alternative that the District Court dismiss

Burton’s complaint with prejudice for failure to state a claim under the IFP statute, 28

U.S.C. § 1915(e)(2)(B)(ii). Burton objected to that recommendation as well. The

District Court overruled those objections, granted Burton leave to proceed IFP, and

dismissed his complaint with prejudice. Burton appeals. 2

                                             II.



2
  We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a
complaint for failure to state a claim. See Fantone v. Latini, 780 F.3d 184, 186 (3d Cir.
2015); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To state a claim, the
complaint must contain “sufficient factual matter; accepted as true; to state a claim to
relief that is plausible on [its] face.” Fantone, 780 F.3d at 193 (quotation marks omitted).
                                               3
       Burton’s arguments on appeal focus primarily on his retaliation claim against

Giroux, and we will focus on that claim as well. Burton claims that Giroux retaliated

against him for exercising his First Amendment rights. “To state a First Amendment

retaliation claim, a prisoner plaintiff must allege (1) that the conduct which led to the

alleged retaliation was constitutionally protected; (2) that he suffered some adverse action

at the hands of the prison officials; and (3) a causal link between the [protected conduct]

and the adverse action [in that the] conduct was a substantial or motivating factor in the

decision to take that action.” Oliver v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017)

(quotation marks omitted).

       We need not address whether Burton has adequately pleaded the first two elements

because he has not pleaded the third. Burton alleges that Giroux retaliated against him

for threatening to file a complaint by charging him with misconduct for disobeying

Giroux’s order. Burton, however, admits that he disobeyed that order and thus that he

engaged in the very misconduct with which Giroux charged him. That fact does not

necessarily preclude a retaliation claim, see Watson v. Rozum, 834 F.3d 417, 423 (3d Cir.

2016), and whether Giroux would have charged Burton with misconduct even if Burton

had not threatened to file a complaint is an affirmative defense that Giroux would bear

the burden to plead and prove, see id. at 426.

       Burton, however, bears the initial burden of alleging some reason to believe that

his threat to file a complaint played a role in Giroux’s decision to charge him. Burton has

not done so. Burton does not allege, for example, that Giroux responded to his threat to
                                              4
file a complaint with antagonism. Instead, he alleges that Giroux merely said “you do

that” and walked away.

       Nor does Burton allege any other reason to believe that his threat to file a

complaint played any role in Giroux’s decision to charge him with misconduct for his

admitted disobedience. Burton alleges (in conclusory fashion) that Giroux knew that he

filed grievances against other officers, but that alleged circumstance does not suggest any

retaliatory animus on the part of Giroux. Burton also alleges that Giroux and other

officers do not “write up” other prisoners for covering their windows. Giroux, however,

did not charge Burton with misconduct for covering his window. Instead, Giroux

charged Burton with misconduct for disobeying his order to remove the cover. Burton

has not alleged that any other similarly situated inmates escaped discipline for disobeying

a similar order.

       In sum, Burton has alleged nothing more than that he responded to an officer’s

order by disobeying it and threatening to file a complaint and that the officer later

charged him with misconduct for disobeying the order. These allegations do not raise an

inference that Giroux’s decision to charge Burton with misconduct was retaliatory. Nor

has Burton, who is an experienced pro se litigant, raised anything in his filings below or

his brief on appeal suggesting that he could do so if given leave to amend.

       One final issue requires discussion. Burton argues that the Magistrate Judge’s

second report displayed bias or an appearance of partiality. We do not condone

everything in the report, which the District Court adopted as its own opinion. Among
                                              5
other things, we do not condone the Magistrate Judge’s continued editorializing on

prisoner litigation, which we have addressed before. See Pearson v. Prison Health Serv.,

850 F.3d 526, 543-45 (3d Cir. 2017). Nevertheless, our review of the record, including

our de novo of Burton’s complaint, reveals that no relief in that regard or any other is

warranted in this case. We have reviewed the remainder of Burton’s claims and

arguments on appeal and reject them for reasons that do not require discussion.

                                            III.

       For these reasons, we will affirm the judgment of the District Court.




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