BLD-151                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 10-2259
                                  ___________

                                GARY BANKS,
                                                   Appellant

                                        v.

  LT. MARK MOZINGO; DR. ASSIST. MIKE HICE; LT. MACKEY; CORRECT.
    OFFICER MEEKER; CORRECT. OFFICER DERAN; CORRECT. OFFICER
   STOKER; CORRECT. OFFICER RICHIE; CORRECT OFFICER FAULKNER;
 C.O. BURTON; LT. BERRIER; *SECRETARY PENNSYLVANIA DEPARTMENT
          OF CORRECTIONS; CHIEF PSYCHIATRIST FRED MAVE;
    DUPUTY SUPERT. MARK KRYSIVIG; CHIEF PSYCHOLOGIST LANCE
                     COUTERER; ROBERT TRETINIK
                  *(Pursuant to Rule 43(c), Fed. R. App. P.)
                 ____________________________________

                 On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 08-cv-00004)
                 District Judge: Honorable Davis Stewart Cercone
                   ____________________________________

      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
                                 March 31, 2011


      Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                         (Opinion filed: April 18, 2011)
                                  _________

                                   OPINION
                                   _________
PER CURIAM

          Appellant Gary Banks, an inmate at the State Correctional Institute at Frackville,

appeals from an order of the District Court granting summary judgment in favor of the

defendants in this pro se civil rights action. For the following reasons, we will summarily

affirm.

          Banks’s complaint arises almost entirely out of several similar events that

occurred in May and June 2006, during which Banks was confined in the prison’s Long

Term Segregation Unit. Each of the incidents began when Banks smeared feces on the

walls of his cell, on the cell’s security camera, or on himself. As a result, guards had to

remove Banks from the cell so it could be cleaned. After the first incident, Banks refused

an order to submit to voluntary handcuffing. A guard twice sprayed mace into the cell,

and Banks agreed to be handcuffed and allowed the officers to secure a “spit mask.”

Every other time Banks had to be removed, he allowed the guards to secure handcuffs

and a “spit mask,” and the guards in turn did not spray mace.

          On each occasion, Banks was escorted from his cell to the shower. He underwent

a strip search, received clean clothes, was placed in security restraints and temporarily

held in a strip cell, and eventually returned to his cell, which had been cleaned. Although

Banks’s cooperation allowed for most of these events to pass without incident, the guards

were occasionally required to use force. For instance, Banks once bit the guard who was

securing the “spit mask.” Another guard used a taser to subdue Banks, and no further

force was required. On another occasion, on the way to the shower, Banks claims that a
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guard pushed him, elbowed him, and attempted to step on his feet. Banks spat on the

guard, another guard sprayed Banks with mace, and the event passed without further

incident. Finally, on one other occasion, Banks was able to free one arm from its

restraints. He broke the sprinkler head in his cell and made a noose from the sheet of his

bed. As a result, he was placed in a restraint chair for eight hours. Banks was issued

various misconducts after each of these events.

       Banks also complains about two court-ordered blood tests. After he refused to

voluntarily submit to the tests, he was placed in a restraint chair so medical staff could

draw blood. He claims that the needles used were not taken from a sanitized bag, and

that the blood tests were really a ploy to inject him with Hepatitis B and to conduct

experiments on him.

       In January 2008, Banks filed a complaint pursuant to 42 U.S.C. § 1983. He named

as defendants several prison guards, medical staff, and administrators, alleging that he

was subjected to cruel and unusual punishment and unconstitutional conditions of

confinement, that he was denied medical care, and that he was improperly issued

misconducts. In addition, he claimed violations of his First, Fifth, and Fourteenth

Amendment rights. The District Court dismissed the claim against one defendant, who

had administered the court-ordered blood tests, on the ground of absolute immunity. The

District Court awarded summary judgment on the claims against the other defendants.

Banks appealed.

       We have jurisdiction to hear this appeal under 42 U.S.C. § 1291. “Absolute
                                              3
immunity is a purely legal question over which we exercise plenary review.” In re

Montgomery County, 

, 372 (3d Cir. 2000). When reviewing a district

court’s grant of summary judgment, we exercise plenary review, viewing the facts in the

light most favorable to the nonmoving party. Dee v. Borough of Dunmore, 

,

229 (3d Cir. 2008). Summary judgment is proper, and the moving party is entitled to

judgment as a matter of law, where, viewing the evidence in the light most favorable to

the nonmoving party and drawing all inferences in favor of that party, no genuine issue of

material fact exists. Fed. R. Civ. P. 56(c); Kaucher v. County of Bucks, 

,

422-23 (3d Cir. 2006). Summary action is warranted if an appeal presents no substantial

question. LAR 27.4; I.O.P. 10.6.

       We agree with the District Court that Banks cannot maintain an action against the

defendant who administered the blood tests. As Banks admits, the blood tests were

conducted pursuant to a court order. An “action taken pursuant to a facially valid court

order receives absolute immunity from § 1983 lawsuits for damages.” Hamilton v.

Leavy, 

, 782-83 (3d Cir. 2003). Banks does not suggest that the court order

was invalid. In addition, his allegation that the blood test was a ruse to inject him with

Hepatitis B and conduct experiments on him is insufficient “to raise a right of relief

above the speculative level.” Bell Atlantic Corp. v. Twombly, 

, 555 (2007).

       Banks argues that the defendants used excessive force. The Eighth Amendment

prohibits prison officials from unnecessarily and wantonly inflicting pain in a manner that

offends contemporary standards of decency. See Hudson v. McMillian, 

, 8
                                              4
(1992). When reviewing Eighth Amendment excessive-force claims, we must determine

whether the “force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm .” 

Whether the force applied was

excessive requires the examination of several factors outlined by the Supreme Court in

Whitley v. Albers, 

, 321 (1986), including: (1) the need for the application

of force; (2) the relationship between the need and the amount of force that was used; (3)

the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates,

as reasonably perceived by responsible officials on the basis of the facts known to them;

and (5) any efforts made to temper the severity of a forceful response.

       Here, Banks argues that the defendants’ use of the taser and mace amounted to

excessive force. First, the use of these products does not in itself amount to an Eighth

Amendment violation. See, e.g., Couden v. Duffy, 

, 505-06 (3d Cir. 2006).

Second, these items were used in response to Banks’s actions. The defendants used mace

once after Banks refused to voluntarily submit to handcuffing, and again to subdue Banks

after he had spat at a guard. The taser was used to subdue Banks after he had bitten one

of the guards. Moreover, Banks has produced no evidence to establish that he suffered

any serious injuries as a result of either the taser or the mace.

       Banks further alleges that, on the occasions when he had to be placed in restraints,

the defendants made the straps too tight. When the defendants restrained Banks, they did

so because they had to remove him from his cell to clean up the messes that he had made,

to prevent him from further damaging or destroying property, and, one occasion, to
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secure a noose that he had constructed from his bed sheet. In addition, Banks admits that

every time he was restrained, a nurse checked him periodically to ensure that there were

no circulation problems. The nurse’s reports are a part of the record, and they indicate

that Banks was not seriously injured after any of the incidents. Thus, we agree with the

District Court that summary judgment was proper on Banks’s excessive-force claims.

       Banks also argues that he was denied medical care because he was not given

medical attention after the defendants used the taser and mace. An inmate making an

Eighth Amendment claim on the basis of the denial of medical treatment must show “(1)

that the defendants were deliberately indifferent to [his or her] medical needs and (2) that

those needs were serious.” Rouse v. Plantier, 

, 197 (3d Cir. 1999) (citing

Estelle v. Gamble, 

, 106 (1976)). Here, the defendants submitted the medical

reports prepared after the relevant incidents. The reports belie Banks’s claims. He

refused an offer to flush his eyes after the first application of mace. After the second

application, as he admits, he cleaned his eyes with water from the sink in his cell. After

the defendants used a taser, Banks was examined by the nurse and no injuries were noted.

Banks offers nothing more than his bare assertions to dispute the defendants’ evidence

that they were not deliberately indifferent to his serious medical needs. Thus, the District

Court properly granted summary judgment on this claim.

       Banks also challenges the conditions of his confinement. A prisoner making a

conditions-of-confinement claim must satisfy the two-part test established in Farmer v.

Brennan, 

(1994). First, the prisoner must show that he was subjected to a
                                              6
sufficiently serious deprivation that resulted in the denial of “the minimal civilized

measure of life’s necessities.” 

(internal quotations and citation omitted).

Second, the prisoner must show that the defendant was “deliberately indifferent” to

inmate safety. 

that he was forced to live in an unsanitary cell. The basis for this

ironic claim is the feces that was smeared on the cell’s walls. As Banks admits, however,

the feces was on the wall because he had put it there. Moreover, the record demonstrates

that, when Banks did sully his cell, the defendants took actions to remove Banks and see

that both he and the cell were cleaned. He also argues that he was denied basic

necessities, such as running water, a mattress, clothes, and a blanket. The defendants

produced evidence, which included video footage of the incidents in question, to establish

that these claims were untrue. Banks offered no evidence to the contrary. Moreover,

Banks introduced no evidence to establish that these conditions “pos[ed] a substantial risk

of serious harm.” Id.; see also Williams v. Delo, 

, 444-47 (8th Cir. 1995)

(finding no Eighth Amendment violation where prisoner was placed in a strip cell

without clothes, the water in the cell was turned off and the mattress removed, and

prisoner’s bedding, clothing, legal mail, and hygienic supplies were withheld). Thus, we

conclude that the District Court properly granted summary judgment on Banks’s

conditions-of-confinement claims.

       Banks also purports to bring the above claims under the Due Process Clauses of

the Fifth and Fourteenth Amendments. First, since none of the defendants are agents of
                                              7
the federal government, the Fifth Amendment is inapplicable. See Chavez v. Martinez,

, 788 (2003). Second, to the extent that Banks alleges due-process

violations relating to excessive force, the denial of medical care, and the conditions of his

confinement, these claims are properly analyzed under the Eighth Amendment. See

Albright v. Oliver, 

, 273 (1994). To the extent that Banks alleges that he

was improperly issued misconducts for the events in question, this challenge is actionable

under § 1983 only if he can establish that the misconduct was issued in retaliation for his

exercising a constitutional right. See Rauser v. Horn, 

, 333 (3d Cir. 2001).

Banks has offered no evidence to suggest that the defendants had a retaliatory motive in

issuing any of the misconducts.

       Finally, Banks argues that he missed a court date on one of the days that he had to

be removed from his cell. We construe this claim as an allegation that he was denied

access to the courts. An inmate making such a claim must show, inter alia, that he

suffered an actual injury. Lewis v. Casey, 

, 346 (1996). Actual injury

occurs when the inmate demonstrates that a “nonfrivolous” and “arguable” claim was lost

as a result of the defendant’s actions. Christopher v. Harbury, 

, 415 (2002).

Here, Banks alleges that he missed a court date relating charges that resulted from a

previous fight that he had had with prison guards. He does not identify a claim, much

less an arguable and nonfrivolous claim, that he was prevented from raising as a result of

missing the court date. Thus, the District Court properly granted summary judgment to

the defendants on this claim.
                                              8
       Accordingly, we conclude that this appeal does not present a substantial question,

and we will affirm the decision of the District Court. Banks’s motions to clarify the

appeal process, and for the appointment of counsel, for legal property, and access to the

DOC law library, are denied.




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