BLD-374                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 14-1711
                                  ___________

                              JOHNSON OBIEGBU,
                                          Appellant

                                        v.

        WARDEN LORETTO FCI; DR. J. TRIMBATH, Medical Director;
         S. BURKE, Physician Assistant; DR. SHEDLOCK, Optometrist;
     DR. MICHAEL CASH, Medical Director; DR. HOWARD, Opthamologist;
     RODGRIGUEZ MIRALLES, HSS, IOP/IDC; CRAIG WIRFEL, Counselor
                ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                          (D.C. Civil No. 3-10-cv-00277)
                    District Judge: Honorable Kim R. Gibson
                   ____________________________________

 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
                                 September 5, 2014

             Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                       (Opinion filed: September 16, 2014 )
                                    _________

                                    OPINION
                                    _________




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PER CURIAM

       Pro se litigant Johnson Obiegbu, proceeding in forma pauperis, appeals the

District Court’s order granting summary judgment to Defendant Craig Wirfel. For the

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

       On July 13, 2010, an inmate named Solomon was transferred into the 8-man cell

in which Obiegbu was housed at the Federal Correctional Institute in Loretto,

Pennsylvania. The following month, Solomon complained to prison medical staff about

itchiness and was diagnosed with scabies on August 17.1 He was quarantined and

prescribed medication for the condition. On August 31, he was evaluated as in remission

and released from isolation. In the meantime, Obiegbu filed a grievance complaining

about the “psychological and emotional injury” he sustained as a result of being housed

alongside someone later diagnosed with scabies. In May of 2011, approximately nine

months after Solomon’s brief time in his cell, Obiegbu was transferred to the United

States Penitentiary, Canaan, and was diagnosed with scabies.

       Obiegbu initiated this action in the Western District of Pennsylvania in November

2010, asserting a number of constitutional violations against eight defendants, pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

(1971). The District Court granted the Defendants’ motion to dismiss the complaint as to


1
   According to an exhibit submitted by Obiegbu and attributed to the Mayo Clinic,
scabies is an itchy skin condition caused by a mite. Solomon had been treated for scabies
at his previous facility, but the condition was considered resolved. Solomon did in fact
complain about itchiness at Loretto prior to the August diagnosis of scabies, but his
itchiness had been attributed to other maladies, including “dermatitis/eczema due to
unspecified cause” and “possible psoriasis.”
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all defendants and claims with one exception: Obiegbu’s claim that Wirfel deliberately

exposed him to scabies in retaliation for the grievances he had filed against Wirfel.

       Discovery was conducted on this one remaining claim, after which Wirfel moved

for summary judgment. The Magistrate Judge recommended granting that motion.2

Obiegbu filed objections to the Magistrate Judge’s report, but the District Court was

unpersuaded by them. It granted Wirfel’s motion for summary judgment, and Obiegbu

filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291 and exercise

plenary review over the District Court’s order granting summary judgment to Wirfel. See

State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 

, 89 (3d Cir. 2009).

       To prove that prison officials retaliated against a prisoner for exercising his

constitutional rights, the prisoner must show: (1) he had engaged in constitutionally-

protected conduct; (2) he suffered adverse action by prison officials that is sufficient to

deter a person of ordinary firmness from exercising his constitutional rights; and (3) a

causal link between the exercise of the constitutional right and the adverse action taken

against him. See Rauser v. Horn, 

, 333 (3d Cir. 2001); see also Carter v.

McGrady, 

, 157-58 (3d Cir. 2002). Assuming, arguendo, that Obiegbu has

presented evidence with respect to the first and second criteria, it is the third criterion on

which this claim collapses.


2
  The Magistrate Judge opined that a First Amendment claim for retaliation, such as the
one at bar, may not be cognizable under Bivens. He therefore chose to construe the
complaint as an Eighth Amendment claim for deliberate indifference to serious medical
needs. Obiegbu protests that approach. Because his complaint fails even under the First
Amendment retaliation rubric (described infra), we need not, and do not, decide that
question here.
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       Obiegbu claims that Wirfel knowingly exposed him to scabies in order to punish

him for filing grievances. But Obiegbu has not presented any evidence that Wirfel

actually knew Solomon had scabies at the time of the transfer. Obiegbu points to a

“copout” from Robert Kutzer (who was housed with Obiegbu and Solomon) to a case

manager named Mr. Perehinec, which noted that Solomon seemed itchy and asked

whether he had been diagnosed with anything contagious. The copout is dated August

11, 2010. This August document between Kutzer and Perehinec says nothing about the

issue in question, namely whether Wirfel knew Solomon had scabies at the time Solomon

entered Obiegbu’s cell.

       Wirfel, for his part, has presented considerable evidence that he did not know. His

sworn declaration indicates that he does not have access to inmates’ medical records.

Indeed, Solomon’s medical records are offered to this Court only for in camera review.

Furthermore, declarations from the prison health systems administrator and Solomon

himself demonstrate that even if Wirfel did have access to Solomon’s medical records,

there would have been nothing to read in this regard; Solomon was not diagnosed with or

even suspected of having scabies until a month after he was transferred to Obiegbu’s cell.

       Summary judgment is appropriate if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(a). A dispute is “genuine” only if there is a sufficient evidentiary

basis on which a reasonable jury could find for the non-moving party. See Thomas v.

Cumberland Cnty., 

, 222 (3d Cir. 2014). Because Obiegbu has presented no

evidence to suggest that Wirfel knew Solomon had scabies at the time of the transfer, he

                                             4
has failed to provide a sufficient evidentiary basis on which a reasonable jury could find

the necessary causal link between his grievance-filing and his subsequent exposure to

scabies. Without this critical element, a reasonable jury could not find retaliation. See

Hill v. Lappin, 

, 475 (6th Cir. 2010) (stating that to survive summary

judgment on First Amendment retaliation claim, some evidence of retaliatory motive is

required, and conclusory allegations unsupported by material facts will not suffice); see

also Estate of Smith v. Marasco, 

, 513 (3d Cir. 2003) (concluding that First

Amendment retaliation claim fails at summary judgment because there was no evidence

suggesting an intent to retaliate caused or contributed to the adverse action).

Accordingly, we will affirm the District Court’s grant of summary judgment to Wirfel.




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