ALD-098                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  ___________

                                  No. 14-3429
                                  ___________

                               WILLIE L. DAVIS,

                                                        Appellant.

                                        v.

          WARDEN LEWISBURG USP; HARRELL WATTS; J.E. THOMAS

                    ____________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                            (D.C. Civil No. 13-cv-01710)
                   District Judge: Honorable Robert D. Mariani
                   ____________________________________

 Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary
            Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  January 30, 2015


           Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges



                        (Opinion filed: February 10, 2015)
                                        _________

                                      O P I N I O N*
                                       _________
PER CURIAM

       Pro se litigant Willie Davis, proceeding in forma pauperis, appeals the District

Court’s order dismissing his complaint for failure to state a claim. For the reasons set

forth below, we will summarily affirm the District Court’s judgment.

       Davis is currently incarcerated at the United States Penitentiary in Lewisburg,

Pennsylvania. He filed the civil rights complaint at bar against J.E. Thomas, the Warden

at USP-Lewisburg, and Harrell Watts, the Federal Bureau of Prisons National Inmate

Appeals Administrator. According to Davis, the prison implemented a policy whereby

the steel window covers on the cell doors belonging to all inmates in the Special

Management Unit’s G-Block, where Davis is housed, must remain closed between 6 a.m.

and 10 p.m. This policy, he alleged, violates the Equal Protection Clause. Davis sought

$3 million in compensatory and punitive damages as relief.

       The Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss

the case. Davis did not respond to that motion, but rather filed a motion for sanctions and

a motion for entry of default. The Magistrate Judge denied those motions and ordered

Davis to respond to the Rule 12(b)(6) motion by January 3, 2014. When Davis did not do

so, the Magistrate Judge recommended that the District Court dismiss the case. Davis

objected. When the Defendants filed a brief in opposition to his objections, Davis filed a


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
response, but it did not address the substance of their motion to dismiss. The District

Court overruled Davis’s objections, but gave him 14 additional days to respond to the

motion to dismiss. Once again, Davis did not file a response to the Rule 12(b)(6) motion.

The Magistrate Judge recommended that the District Court dismiss the case, and Davis

again objected without opposing the Rule 12(b)(6) motion. The District Court overruled

Davis’s objections and this time dismissed the case. We have jurisdiction pursuant to 28

U.S.C. § 1291 and exercise plenary review over the District Court’s order. See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

       The District Court determined that dismissal was warranted under Local Rule 7.6,1

under Federal Rule of Civil Procedure 41(b),2 and on the merits. We may affirm on any

basis supported in the record. Brown v. Pa. Dep’t of Health Emergency Med. Servs.,

318 F.3d 473, 475 n.1 (3d Cir. 2003). From the perspective of the merits alone, it is




1
  Local Rule 7.6 of the Middle District of Pennsylvania’s Rules of Court provides the
following: “Any party opposing any motion, other than a motion for summary judgment,
shall file a brief in opposition within fourteen (14) days after service of the movant’s
brief, or, if a brief in support of the motion is not required under these rules, within seven
(7) days after service of the motion. Any party who fails to comply with this rule shall be
deemed not to oppose such motion.”
2
  Federal Rule of Civil Procedure 41(b) provides the following: “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) . . . operates as an adjudication on the merits.” The
District Court used the factors we have adopted to evaluate whether the sanction of a
dismissal was appropriate here, and concluded that it was. See Poulis v. State Farm Fire
& Cas. Co., 747 F.2d 863, 868-70 (3d Cir. 1984).

                                              3
clear that dismissal of this case was appropriate.3 We do not, therefore, reach the District

Court’s other bases for dismissal.

       To survive a motion to dismiss, a complaint must contain enough factual

allegations “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Bare labels and conclusions will not suffice. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Here, that is all Davis has pleaded. He

claims that all inmates in USP-Lewisburg’s Special Management Unit — presumably,

those on G-Block and those not on G-Block — are similarly situated in every relevant

respect, yet he provides no details or explanation of how that is true. Such a naked

assertion does not meet the pleading standard. See id. And (at least in the absence of an

allegation of extreme arbitrariness, of a sort not alleged here) an Equal Protection claim

cannot proceed without a plausible allegation that similarly situated individuals are being

treated differently. See Artway v. Att’y Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996);

Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994).

       We are satisfied that under the circumstances of this case, the District Court

properly dismissed Davis’s complaint without offering leave to amend.4 See Grayson v.

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). We will summarily affirm the

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

3
   Although the District Court did not address it, we note that Davis also alleged a
violation of his civil rights under 18 U.S.C. § 242. This claim is meritless because § 242
is a criminal statute, through which no private cause of action is created. See, e.g.,
United States v. City of Phila., 644 F.2d 187, 198-99 (3d Cir. 1980).
4
  Leave to amend seems particularly futile here, given Davis’s inability to comply with
court directives and deadlines.
                                              4
