DLD-255                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 14-1278
                                  ___________

                            SHAROB ABDUL-AZIZ,
                                        Appellant

                                        v.

     MICHELE RICCI; ADMINISTRATOR NEW JERSEY STATE PRISON;
   DONALD MEE, ASSISTANT ADMINISTARTOR AT NEW JERSEY STATE
  PRISION IS BEING SUED IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
   WILLIAM MOLEINS, CAPTAIN AND ACTING DIRECTOR OF CUSTODY
          AT NEW JERSEY STATE PRISON IS BEING SUED IN HIS
         INDIVIDUAL AND OFFICIAL CAPACITY;CLAY MCCLAIN,
               SERGEANT AT NEW JERSEY STATE PRISON
      IS BEING SUED IN HIS INDIVIDUAL AND OFFICIAL CAPACITY
                 ____________________________________

                 On Appeal from the United States District Court
                          for the District of New Jersey
                         (D.C. Civil No. 3-08-cv-05764)
                   District Judge: Honorable Mary L. Cooper
                  ____________________________________

      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
                                 May 15, 2014
          Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges

                          (Opinion filed: June 16, 2014)
                                   _________

                                   OPINION
                                   _________
PER CURIAM


       Sharob Abdul-Aziz, proceeding pro se and in forma pauperis, appeals from the

District Court’s order granting the defendants’ motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56(a). For the reasons set forth below, we will

summarily affirm.1

                                             I.

       Sharob Abdul-Aziz, a New Jersey prisoner, filed an amended complaint pursuant

to 42 U.S.C. § 1983, naming as defendants various officials and employees of the New

Jersey State Prison (“NJSP”). The complaint alleged that Muslim inmates were

prevented from practicing their religion, and that Abdul-Aziz was retaliated against for

trying to rectify the unfair treatment. The alleged retaliation involved a nine-day

assignment to temporary close custody (“TCC”) and transfer to an institutional job that

was much lower-paying than his previous position. According to Abdul-Aziz, these

actions violated his rights under the First, Eighth, and Fourteenth Amendment. He asked

for monetary and injunctive relief.




1
  We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We may
summarily affirm a decision of the District Court if the appeal does not raise a substantial
issue. 3d Cir. LAR 27.4; I.O.P. 10.6. We may affirm on any basis supported by the
record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Because
Abdul-Aziz is proceeding in forma pauperis, we must dismiss the appeal if it is frivolous.
28 U.S.C. § 1915(e)(2)(B)(i).

                                             2
       The District Court dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) Abdul-

Aziz’s claims that his job reassignment violated his rights under the Due Process Clause

of the Fourteenth Amendment and that his time in the TCC violated his rights under the

Due Process Clause and Eighth Amendment, and denied his request for injunctive relief

regarding the return of his musical instruments and electronic equipment. The District

Court also denied Abdul-Aziz’s motion to certify a class of Muslim inmates at NJSP.2

Following discovery, Abdul-Aziz and the defendants made cross-motions for summary

judgment, which the District Court denied with respect to Abdul-Aziz and granted in part

and denied in part with respect to the defendants, leaving one claim viable. Counsel was

appointed to represent Abdul-Aziz, and after additional discovery, the defendants again

moved for summary judgment. The District Court granted the defendants’ motion, and

Abdul-Aziz timely appealed.

                                               II.

       We exercise plenary review over the District Court’s dismissal order. See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Dismissal is appropriate where the pleader

has not alleged “sufficient factual matter, accepted as true, to state a claim to relief that is



2
 We agree with the District Court’s reasons for denying these motions and will not
address them further.
We review such an action for abuse of discretion, Brown v. City of Pittsburgh, 586 F.3d
263, 268 (3d Cir. 2009), and discern no error in the District Court’s denial of Abdul-
Aziz’s motions for a preliminary injunction. The motion requested relief that was
duplicative of that requested by the complaint. Because Abdul-Aziz’s complaint was not
supported by adequate evidence, he is not entitled to the relief requested.
                                               3
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations

omitted).

       Upon review, we conclude that the District Court properly dismissed Abdul-

Aziz’s claim that conditions during his time in TCC violated his rights under the Eighth

Amendment. To establish that one’s conditions of confinement violate the Eighth

Amendment’s prohibition on cruel and unusual punishment, a plaintiff must show he was

denied “the minimal civilized measure of life's necessities.” Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010). Although Abdul-Aziz alleged that he was

not given a change of clothing, he did not claim that he was forced to go without clothing

or that his fundamental needs were not being met. This Court held, in Gibson v. Lynch,

652 F.2d 348 (3d Cir. 1981), that an inmate’s incarceration for 90 days in solitary

confinement due to prison overcrowding did not violate the Eighth Amendment where his

basic needs for nutrition and shelter were being met. Id. at 350, 352. As Abdul-Aziz was

in TCC for only nine days, dismissal for failure to state a claim was appropriate.

       Furthermore, we agree with the District Court that Abdul-Aziz failed to state a

claim for violation of his right to due process under the Fourteenth Amendment following

his transfer to TCC. It is well-settled that placement in administrative confinement will

generally not create a liberty interest. Sandin v. Conner, 515 U.S. 472, 486 (1995); Allah

v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000). Rather, a “liberty interest only exists if

that placement is an ‘atypical and significant hardship’ relative to others similarly

sentenced.” Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002) (quoting Sandin, 515
                                              4
U.S. at 484). We have previously held that seven months in disciplinary confinement did

not implicate a liberty interest. Smith v. Mensinger, 293 F.3d 641, 645, 654 (3d Cir.

2002). Similarly, disciplinary detention for fifteen days and administrative segregation

for 120 days did not implicate a protected liberty interest. Torres v. Fauver, 292 F.3d

141, 151-52 (3d Cir. 2002); cf. Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (holding

that eight years in administrative custody is atypical and implicates a protected liberty

interest). Here, Abdul-Aziz complained of a due process violation based on nine days in

TCC. The conditions he complained of reflect typical restrictions in administrative

custody. We conclude that the duration and conditions of Abdul-Aziz’s segregation

cannot be deemed atypical. Accordingly, he does not have a protected liberty interest and

was not entitled to procedural due process protection.

       Similarly, we agree with the District Court that Abdul-Aziz did not have a

protected liberty interest in the institutional job he lost, and that he accordingly failed to

state a viable Fourteenth Amendment claim arising from that occurrence. Inmates do not

have a liberty or property interest in their job assignments that would give rise to Due

Process Clause protection. James v. Quinlan, 866 F.2d 627, 629-630 (3d Cir. 1989).

                                              III.

       The remainder of Abdul-Aziz’s claims were terminated pursuant to the

defendants’ motions for summary judgment. We review the District Court’s orders

granting summary judgment de novo and review the facts in the light most favorable to

the nonmoving party. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). A
                                               5
grant of summary judgment will be affirmed if our review reveals 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).

       Abdul-Aziz claimed that his right to practice his religion was infringed upon by

NJSP’s refusal to accept donated Halal meats for use in the inmates’ meals, by providing

“vegetarian” meals that were not actually vegetarian, and by prohibiting inmates from

possessing prayer oil in their cells. He alleged that Jewish inmates were provided Kosher

meals for Passover, and Muslim inmates were therefore denied equal protection of the

law. He claimed that these policies and practices violated his rights pursuant to the First

and Fourteenth Amendments.

       “Inmates clearly retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). However, an inmate only “retains

those First Amendment rights that are not inconsistent with his status as a prisoner or

with the legitimate penological objectives of the corrections system.” Pell v. Procunier,

417 U.S. 817, 822 (1974). To determine whether a regulation infringing upon

constitutional rights is reasonable, courts apply the four factors set forth in Turner v.

Safley, 482 U.S. 78 (1987). These factors require courts to consider: (1) whether the

regulation bears a ‘valid, rational connection’ to a legitimate and neutral government

objective; (2) “whether there are alternative means of exercising the right that remain

open to prison inmates;” (3) “the impact accommodation of the asserted constitutional
                                              6
right will have on guards and other inmates, and on the allocation of prison resources

generally;” and (4) “the absence of ready alternatives.” Id. at 89-90; see also Fraise v.

Terhune, 283 F.3d 506, 513-14 (3d Cir. 2002) (citations omitted).

       With regard to Abdul-Aziz’s Equal Protection claim, “Turner is equally applicable

[], and the appropriate analysis for this claim is the same as that for [his] Free Exercise

claim.” DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000). Generally, prison officials

cannot discriminate against inmates of different religions. Cruz v. Beto, 405 U.S. 319

(1972) (per curiam). However, an inmate “cannot obtain relief if the difference between

the defendants’ treatment of him and their treatment of [inmates of another religion] is

‘reasonably related to legitimate penological interests.’” DeHart, 227 F.3d at 61.

       We agree with the District Court that no genuine issue of material fact

existed in Abdul-Aziz’s claim that NJSP’s policy regarding Halal meats placed a

burden on his religious exercise. Abdul-Aziz claimed that there were donations of

Halal meat available for Muslim feast days that the prison refused to accept, but

nothing in the record suggests that the consumption of meat, Halal or otherwise, is

required for Abdul-Aziz to practice his religion. In his deposition, Abdul-Aziz

describes Halal food as “pork-free, wine-free, [and] slaughtered properly . . . .

every day this would be your diet.” Dkt. No. 43-6, at 59. Vegetarian meals satisfy

these requirements. Review of the record indicates that NJSP cannot accept

donated meals unless such food is determined to be necessary for the observance

of a holy day. Id. at 9. Abdul-Aziz has presented evidence establishing only that
                                              7
any meat eaten by Muslims must be Halal, not that Halal meats must be eaten on

feast days. Therefore his First Amendment rights were not violated, nor were his

Fourteenth Amendment rights. Jewish inmates received Kosher meals at Passover

because they were determined to be necessary for religious observance. Id.

Because the vegetarian meals did not violate Islam’s proscription on non-Halal

meat, while non-Kosher meals would not have met the religious requirements of

Passover, reasonable penological interests were served by the differential

treatment.

       The District Court also correctly determined that no genuine issue of

material fact existed with respect to Abdul-Aziz’s claim that the vegetarian meals

served at NJSP actually contained meat. Abdul-Aziz cited a transcript from a

deposition taken in 2001 and a letter from Schreiber Foods stating that trace

amount of certain enzymes could be present in School Choice American cheese.

Dkt. No. 39-2, at 37-39. Review of the record in this case indicates that the

religious vegetarian meals at NJSP are not contaminated. The DOC Regional

Food Service Supervisor specified that the religious vegetarian meals at NJSP do

not contain meat or American cheese. He also indicated that the meals contain

powder cheddar cheese that is not made with meat. Dkt. No. 43-5, at 2. As

Abdul-Aziz offered no evidence contrary to this declaration, the grant of summary

judgment was proper.


                                             8
         The final aspect of Abdul-Aziz’s religious claim is that his religious

exercise was impeded by NJSP’s policy forbidding the possession of oils in cells.

NJSP forbids oils (including prayer oils) in cells for security reasons. Dkt. No. 43-

3, at 3. Imam Rasoul Suluki, who is permitted to bring such oil into the prison for

prayer services, stated in his declaration that while prayer oil is a “custom or

recommended practices,” it “is not part of the Islamic Fard, which is an obligatory

or mandatory practice.” Dkt. no. 43-4, at 2. Review of the record did not produce

any evidence suggesting that Abdul-Aziz’s ability to practice his faith was

restricted or that he was prohibited from practicing his religion in any manner.

The defendants were therefore entitled to an entry of summary judgment on this

claim.

         Summary judgment in favor of the defendants was also proper as to Abdul-Aziz’s

claim of that the defendants retaliated against him by placing him in TCC and reassigning

him to a lower-paying institutional job. Retaliating against a prisoner for the exercise of

his constitutional rights is unconstitutional. See Rauser v. Horn, 241 F.3d 330, 333–34

(3d Cir. 2001). A plaintiff in a retaliation case must prove that: (1) he engaged in

constitutionally protected conduct, (2) “he suffered some ‘adverse action’ at the hands of

the prison officials”; and (3) “his constitutionally protected conduct was ‘a substantial or

motivating factor’ in the decision” to take that action. Id. at 333. “Prison officials may

still prevail by proving that they would have made the same decision absent the protected

conduct for reasons reasonably related to a legitimate penological interest.” Id. at 334.
                                               9
         Abdul-Aziz filed grievances regarding various matters from March until August

2008. Dkt. No. 5, at 4-6. On August 15, 2008, prison officials discovered memory cards

rolled up in Muslim prayer rugs in a common area of the prison. The memory cards were

confiscated as contraband. On August 18, 2008, Abdul-Aziz told prison officials that the

memory cards belonged to him. On August 19, 2008, Abdul-Aziz was transferred to

TCC status. Dkt. No. 43-1, at 29. The defendants argued in their brief that “Plaintiff

would have been placed in TCC, issued the same disciplinary charge, and treated in the

same manner even in the absence of his filing grievances and/or complaints.” Id. at 28.

This statement, along with the chronology following the memory cards’ discovery,

established a legitimate penological purpose for TCC status, thus precluding the existence

of a genuine issue of material fact and entitling the defendants summary judgment on this

claim.

         Likewise, nothing in the record indicates that Abdul-Aziz’s reassignment to a

lower-paying institutional job was the result of retaliation, as it was also done for a

legitimate penological purpose. Abdul-Aziz was working as a Forms Room file clerk on

January 29, 2009, when an NJSP official observed speakers connected to Abdul-Aziz’s

workstation computer. Music files were stored on the computer, and Abdul-Aziz had

listened them on at least one occasion. Dkt. No. 82-1, at ¶¶ 32-33. Inmates are not

permitted to download music or games on the computers. As a result, Abdul-Aziz was

charged with a disciplinary infraction for misuse of electronic equipment, but it was

dismissed because he was not served with the charge within the applicable time limit. Id.
                                              10
at ¶ 50. However, following the disposition of any infraction, all inmates must go before

the Institutional Classification Committee (“ICC”), which may look at the conduct

underlying the charge regardless of its outcome. Id. at ¶¶ 40-41. The ICC has the

discretion to reassign an inmate to a different job if it determines that the safety and

security of the facility will be threatened by returning the inmate to the inmate’s former

work assignment. Id. at ¶ 43. Abdul-Aziz met with the ICC on February 11, 2009, and

he was subsequently reassigned from Forms Room clerk to cell sanitation. Id. at ¶ 19.

This reassignment took place nearly three months after he filed a lawsuit and nearly five

months after he filed his last complaint. Abdul-Aziz admitted all of the facts mentioned

above in his counter-statement of facts (Dkt. No. 84-2), and therefore there is no genuine

issue of material fact as to whether his reassignment served a legitimate penological

interest. Summary judgment in favor of defendants was therefore appropriate regarding

this claim as well.

                                             IV.

       There being no substantial question presented on appeal, we will summarily

affirm.3




3
  To the extent Abdul-Aziz requests appointment of counsel in his argument in support of
the appeal, that request is denied.
                                              11
