DLD-042                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 15-2433
                                 ___________

                              WAYNE PRATER,
                                        Appellant

                                       v.

      JOHN E. WETZEL; SHIRLEY M. SMEAL, Secretary of Corrections;
        JOHN/JANE DOE, Executive Deputy Secretary of Corrections;
              GEORGE ONDREJKA, Warden SCI Graterford;
              J. LANE, Deputy Superintendent SCI Graterford;
          ROBIN M. LEWIS, PRC Hearing Officer SCI Graterford;
                 FIELDS, Chief Hearing Examiner (D.O.C.);
                      DOHMAN, Major SCI Graterford;
                   D. BRUMFIELD, Major SCI Graterford;
                 G. S. ROBINSON, Captain SCI Graterford;
                   M. DOYLE, Lieutenant SCI Graterford;
              WENDY SHAYLOR, Lieutenant SCI Graterford;
           MS. GOLDEN, Grievance Coordinator SCI Graterford;
                    SMITH, Unit Manager SCI Graterford;
           JOHN/JANE DOE, Correctional Officer SCI Graterford
                 ____________________________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                          (D.C. Civil No. 2-14-cv-03395)
                  District Judge: Honorable C. Darnell Jones, II
                  ____________________________________

     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
                               November 5, 2015
    Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges

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                            (Opinion filed: December 7, 2015)
                                        _________

                                         OPINION*
                                         _________

PER CURIAM

       Wayne Prater appeals the District Court’s order granting Appellees’ motion to

dismiss his complaint for failure to state a claim. For the reasons below, we will

summarily affirm the District Court’s order.

       The procedural history of this case and the details of Prater’s claims are well

known to the parties, set forth in the District Court’s memorandum, and need not be

discussed at length. Briefly, Prater, a Pennsylvania inmate, alleged that he was put on

lockdown for eleven days without a hearing and denied access to the law library. He

contends that this was based on a false report that he was a danger to himself or others

because he was serving a sentence for a crime committed against a staff member. He was

subsequently moved to the Restricted Housing Unit where he was denied access to the

law library and writing material despite his requests.1 He asserted that these denials of

access were the cause of the dismissal of an appeal, Prater v. City of Philadelphia, C.A.

No. 12-3979. In addition to this alleged violation of his First Amendment right of access

to the courts, Prater also claimed unspecified violations of his rights under the Fifth,

*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Prater does not specify how long the denial of law library access lasted. In his
complaint, he asserted that the events giving rise to his claim occurred between
December 18, 2012, and February 15, 2013.
                                               2
Sixth, and Fourteenth Amendments. Appellees filed a motion to dismiss which the

District Court granted. Prater filed a notice of appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s

order granting the motion to dismiss de novo. Dique v. N.J. State Police, 

,

188 (3d Cir. 2010). We may affirm the District Court on any ground supported by the

record. Tourscher v. McCullough, 

, 240 (3d Cir. 1999).

       In order to state a claim of the denial of access to the courts, a prisoner such as

Prater must allege that his efforts to pursue a legal claim were hindered and he suffered

an actual injury. Lewis v. Casey, 

, 351 (1996). The dismissed appeal Prater

alleges as an actual injury was from a jury’s verdict in a civil rights case challenging the

conduct of police officers during Prater’s arrest. Citing Lewis, the District Court

concluded that Prater did not have a right to access the courts to pursue his civil rights

claims because they were unrelated to his conditions of confinement. 

(“The tools [Bounds v. Smith, 

(1977)] requires to be provided are those

that the inmates need in order to attack their sentences, directly or collaterally, and in

order to challenge the conditions of their confinement.”) However, in Lewis, the

Supreme Court noted that in Wolff v. McDonnell, 

, 579 (1974), it had

extended the types of claims for which a prisoner had a right of access to the courts to

civil rights actions which it defined as “actions under 42 U.S.C. § 1983 to vindicate basic

constitutional rights.” 

(quotations omitted). Nevertheless, we

need not resolve whether Prater had a right to access the courts to pursue his civil rights
                                               3
claims because he cannot show an actual injury, i.e., that he was hindered in his efforts to

litigate a nonfrivolous or arguable claim. Monroe v. Beard, 

, 205 (3d Cir.

2008). Such a claim must be described in the complaint alleging the denial of court

access.2 

appeal was dismissed for his failure to order a transcript to aid in

the evaluation of his claims. See Prater v. City of Philadelphia, 539 F. App’x 35 (3d Cir.

2013); Fed. R. App. P. 3(a)(2); 10(b)(1). However, even without that procedural failure,

Prater has not alleged or explained how his underlying claims were arguable. In the

dismissed appeal, Prater raised two claims in his brief. First, he contended that the

defense attorney struck the only African-American potential juror in violation of Batson

v. Kentucky, 

(1986). See Edmonson v. Leesville Concrete Co., Inc., 

, 631 (1991) (extending Batson to civil cases). But in his notice of appeal, Prater

admitted that his counsel had failed to address the Batson violation. If the issue had not

been raised in the District Court, it could not have been raised for the first time on appeal.

See United States v. Anthony Dell’Aquilla, Enters. and Subsidiaries, 

, 335

(3d Cir. 1998) (“[A]bsent exceptional circumstances, an issue not raised in district court

will not be heard on appeal.”) (citation omitted); see also Abu-Jamal v. Horn, 

, 279-80, 284 (3d Cir. 2008) (Batson claim requires contemporaneous objection),

vacated on other grounds by Beard v. Abu-Jamal, 

(2010).


2
 Because Prater failed to describe his hindered, arguable claims in his current complaint,
we look to his brief in his prior appeal.
                                              4
       Prater’s second argument on appeal was that the jury did not follow its instructions

to examine all the evidence, especially his medical expert’s opinion that Prater’s injuries

were caused by the defendants. A litigant is entitled to a new trial on the grounds of the

jury’s verdict being against the weight of the evidence only if the record shows that there

was a miscarriage of justice or the verdict shocks the conscience. Marra v. Phila. Hous.

Auth., 

, 309 n.18 (3d Cir. 2007). Evidence that the defendants allegedly

caused Prater’s injuries would not be sufficient to impose liability; Prater needed to show

that the force used to effectuate the arrest was unreasonable.3 See Abraham v. Raso, 

, 288 (3d Cir. 1999). Prater failed to describe the totality of the evidence at trial

and did not make an arguable claim that the jury’s verdict was against the weight of the

evidence.

       As Prater did not allege an arguable claim that was hindered by Appellees, his

claim of the denial of access to the courts was properly subject to dismissal.4 And

because Prater did not show a likelihood of success on the merits, the District Court did

not err in denying his requests for injunctive relief.

3
  While not dispositive of Prater’s excessive force claim, we note that he was convicted
of a charge of resisting arrest arising from the incident. See Nelson v. Jashurek, 

, 145-46 (3d Cir. 1997) (resisting arrest conviction did not preclude claim of
excessive force). One resists arrest when one intends to prevent an arrest and “creates a
substantial risk of bodily injury to the public servant or anyone else, or employs means
justifying or requiring substantial force to overcome the resistance.” 18 Pa. Cons. Stat.
Ann. § 5104 (West).
4
  In his response to Appellees’ motion to dismiss, Prater alleged for the first time that the
denial of access to the library hindered his efforts to represent himself in his criminal
proceedings. These allegations were not raised in his complaint, and he alleged no actual
injury that he sustained in his criminal proceedings.
                                               5
       Prater also argues in the instant appeal that the District Court ignored his

allegation that the false report that triggered his placement in lockdown was retaliatory.

A prisoner alleging retaliation must demonstrate that (1) his conduct was constitutionally

protected; (2) he suffered an adverse action by prison officials; and (3) his protected

conduct was a substantial or motivating factor in the adverse action. Brightwell v.

Lehman, 

, 194 (3d Cir. 2011). Prater has not alleged any protected conduct

that allegedly motivated his placement in lockdown. He had just been transferred to the

prison the day before. Without more, an allegation of a possibly inaccurate report that

led to a brief period in lockdown is not sufficient to support a claim of retaliation.

       For the reasons given by the District Court, we agree that Prater has not stated

claims under the Fifth, Sixth, and Fourteenth Amendments. Sandin v. Conner, 

, 484 (1995) (liberty interests requiring procedural due process limited to freedom

from restraints that impose “atypical and significant hardship” as compared to ordinary

prison life); Davis v. United States, 

, 456 (1994) (Sixth Amendment rights

attach if criminal proceedings are initiated); Nguyen v. U.S. Catholic Conference, 

, 54 (3d Cir. 1983) (Fifth Amendment restricts only federal government actions).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.


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