      CLD-202                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1467
                                      ___________

                                 CARLOS JOHNSON,
                                           Appellant

                                            v.

                  DHO CHAMBERS; WARDEN BRYAN BLEDSOE;
                       INVOLVED LEWISBURG WARDENS
                     ____________________________________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 1-11-cv-00831)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 14, 2012

            Before: RENDELL, HARDIMAN and COWEN, Circuit Judges

                             (Opinion filed: June 26, 2012)
                                      _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      Carlos Johnson, proceeding pro se, appeals from the order of the District Court

granting the defendant-appellees’ motion to dismiss or, in the alternative, for summary

judgment. Because the appeal does not present a substantial question, we will summarily
affirm. See 3d Cir. LAR 27.4 and I.O.P. 10.6.

                                             I

       In 2011, Johnson filed in the District Court a Bivens action against several

employees of the United States Penitentiary at Lewisburg, Pennsylvania, where he had

been an inmate in the Special Management Unit (“SMU”). Johnson later filed an

amended complaint raising several claims, only a few of which were deemed non-

frivolous. First, Johnson alleged that Disciplinary Hearing Officer Chambers, Warden

Bledsoe, and other “involved wardens” failed to properly investigate the incident that led

to Johnson’s disciplinary hearing. Johnson claimed that, both before his disciplinary

hearing and afterwards, these officials acted to unfairly double-cell Johnson in a small

cell and restricted his visitation, phone, and commissary privileges. Finally, Johnson

argued that, in an unrelated incident, he was exposed to a canister of pepper spray, which

had been used against an inmate in a neighboring cell, and that Correctional Officer

Klosner did not remove the canister afterwards or properly decontaminate the area based

on orders to teach the other SMU inmates a lesson.

       In October 2011, the defendants filed a motion to dismiss or, in the alternative, for

summary judgment. After some confusion because of Johnson’s transfer to a halfway

house and subsequent release from custody, the motion was properly served on Johnson,

but he did not file a response. The District Court issued an order under Local Rule 7.6

directing him to respond or have the motion deemed unopposed, but Johnson again failed


                                             2
to file a response.

       The Magistrate Judge issued a lengthy report and recommendation (“R&R”)

concluding that dismissal was appropriate under Local Rule 7.6 and Federal Rule of Civil

Procedure 41. Johnson submitted a letter responding to the report and recommendation,

which the District Court construed as his formal objections. The District Court then

granted the motion to dismiss / summary judgment motion, adopting the R&R in its

entirety. Johnson timely appealed that order.

                                            II

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily affirm if

Johnson does not raise a substantial question on appeal, see 3d Cir. LAR 27.4 and I.O.P.

10.6, and we may affirm on any grounds supported by the record. See Hughes v. Long,

242 F.3d 121, 122 n.1 (3d Cir. 2001). We need not reach the question whether dismissal

was warranted under Rule 41 because we agree with the District Court that Johnson’s

claims were without merit; it was therefore appropriate to grant the defendants’ summary

judgment motion. 1

       In evaluating whether summary judgment for the defendants was appropriate, we

exercise plenary review, “and we must apply the same standard the district court was


   1
    Johnson has not expressly challenged the District Court’s dismissal of several of his
   claims as legally frivolous. See D. Ct. Doc. No. 10. To the extent that Johnson
   intends to challenge that determination in this appeal, we agree with the District
   Court, for the reasons given in its July 5, 2011 order, that dismissal of those claims
   was approprite.

                                            3
required to apply under Federal Rule of Civil Procedure 56[].” Spence v. ESAB Group,

Inc., 623 F.3d 212, 216 (3d Cir. 2010). “Thus, we can affirm only ‘if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.’” Id. (quoting former Fed. R. Civ. P. 56(c)(2)). “A genuine issue of

material fact exists if there is sufficient evidence favoring the nonmoving party for a jury

to return a verdict for that party.” Id. “In evaluating the evidence, we must view the

facts in the light most favorable to the nonmoving party and draw all inferences in that

party’s favor.” Id. (internal quotation marks and citations omitted).

       Johnson first argued that Warden Bledsoe, DHO Chambers, and unspecified

“involved wardens” failed to properly investigate the incident that resulted in his

receiving certain sanctions before and after his disciplinary hearing. Inasmuch as

Johnson complained that these officials’ failure to investigate resulted in unfair sanctions

after his disciplinary hearing, we construe his claim as alleging a due process violation

with regard to the disciplinary hearing process itself. Such a claim is barred, however,

because Johnson’s claim implies that the adverse disciplinary decision is invalid, and he

has not shown that the adverse decision has been overturned. See Edwards v. Balisok,

520 U.S. 641, 643-46 (1997).

       Further, Johnson’s claims that he was improperly treated as a result of the

officials’ failure to investigate before his disciplinary hearing lack merit. Johnson


                                              4
complained that, for an unspecified length of time, he was double-celled in a six-by-nine-

foot cell for 23 hours per day on “lockdown” status. He also complained that his

visitation, telephone, and commissary privileges were unfairly restricted. Johnson’s

complaint is written in a somewhat confusing manner, and it is unclear whether

Johnson’s claims relate to his initial placement in the SMU, some treatment he may have

received following the incident that led to his disciplinary hearing, or both. Regardless of

which action he takes issue with, Johnson’s treatment in the SMU, and the attendant

restrictions on his privileges, did not run afoul of either the Due Process Clause or the

Eighth Amendment’s proscription against cruel and unusual punishment. That is, his

placement in the SMU did not constitute a dramatic departure from the accepted

standards for conditions of confinement such that due process was implicated. See

Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Griffin v. Vaughn, 112 F.3d 703,

708 (3d Cir. 1997) (confinement in administrative custody for fifteen months not atypical

or significant hardship); Tillery v. Owens, 907 F.2d 418, 427 (3d Cir. 1990) (double-

celling, without other evidence of inadequate prison facilities, is constitutionally

permissible). Nor did Johnson demonstrate an Eighth Amendment violation, as he did

not show (1) that his placement in the SMU, or the emotional trauma that his placement

there allegedly caused, resulted in the denial of any basic human need, (2) that he was

“incarcerated under conditions posing a substantial risk of serious harm,” Farmer v.

Brennan, 511 U.S. 825, 828 (1994), or (3) that prison officials demonstrated a “deliberate


                                              5
indifference” to his health or safety. Id.

         Finally, Johnson claimed that C.O. Klosner violated his rights under the Eighth

Amendment by intentionally neglecting to clean up expended pepper spray from the area

near Johnson’s cell after the spray was used to subdue another inmate, thereby prolonging

Johnson’s exposure to the spray. The District Court construed this as an excessive force

claim, although it could also be construed as a deliberate indifference claim. In either

case, we agree with the District Court that summary judgment was warranted. The

defendant-appellees produced evidence specifically denying Johnson’s allegations and

suggesting that corrections officers routinely followed recommended procedures for

decontaminating cell block areas after the use of chemical agents. Given that Johnson

did not present any evidence beyond his own bare allegations that he was improperly

exposed to pepper spray, he failed to create a genuine issue of material fact as to that

issue.

         Accordingly, Johnson has not raised a substantial question on appeal, and we will

affirm the decision of the District Court.




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