Filed: Jun. 21, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 6-21-2005 Harrod v. Kaminski Precedential or Non-Precedential: Non-Precedential Docket No. 05-1280 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Harrod v. Kaminski" (2005). 2005 Decisions. Paper 980. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/980 This decision is brought to you for free and open access by the Opinions of the Uni
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 6-21-2005 Harrod v. Kaminski Precedential or Non-Precedential: Non-Precedential Docket No. 05-1280 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Harrod v. Kaminski" (2005). 2005 Decisions. Paper 980. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/980 This decision is brought to you for free and open access by the Opinions of the Unit..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-21-2005
Harrod v. Kaminski
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1280
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Harrod v. Kaminski" (2005). 2005 Decisions. Paper 980.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/980
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BPS-242 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1280
______________________________________
DARRYL HARROD, JR.,
Appellant
v.
J. KAMINSKI;
T. GUBBIOTI;
MICHAEL PUGH
______________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-02249)
District Judge: Honorable Christopher C. Conner
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
May 19, 2005
BEFORE: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: June 21, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Darryl Harrod, Jr., proceeding pro se, appeals the February 27, 2004,
and January 19, 2005, orders of the United States District Court for the Middle District of
Pennsylvania. For the reasons that follow, we will dismiss the appeal as frivolous. See
28 U.S.C. § 1915(e)(2)(B).
Because we write for the parties, we will briefly summarize only those facts
essential to our disposition of this appeal. On August 10, 2003, Harrod completed a fifty-
one month federal sentence for weapons offenses. The same day, however, an
outstanding parole violator warrant was executed, and Harrod began serving an additional
3,571-day sentence.1 Thereafter, for purposes of determining Harrod’s security level and
custody classification, the fifty-one month sentence was considered part of his criminal
history, while the parole violator term was considered Harrod’s current offense.
On September 30, 2003, Jonathan Kaminiski, a case manager at the United States
Penitentiary, Allenwood (“USP-Allenwood”), reviewed Harrod’s security level and
custody classification. Kaminski, who had been Harrod’s case manager since January 30,
2002, performed periodic reviews to determine whether changes to Harrod’s custody
status were warranted. As a result of Kaminski’s September 30 review, Harrod’s Security
Total was increased from eleven to seventeen points and a Public Safety Factor (“PSF”)
of “Greatest Severity Offense” was assigned to him on October 3, 2003. Harrod signed
1
On April 5, 1993, Harrod was sentenced to fifteen years’ imprisonment in the
District of Columbia Superior Court. Harrod was paroled on February 27, 1998.
However, on September 9, 1999, the District of Columbia Board of Parole issued a
warrant charging Harrod with a parole violation. The warrant had been placed as a
detainer, to be executed upon Harrod’s release from custody on his federal sentence.
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the October 3 Program Review Report, indicating that he did not have any concerns with
his classification.
In December 2003, Harrod initiated the underlying Bivens2 action in the District
Court for the Middle District of Pennsylvania. Harrod alleged that T. Gubbioti and
Michael Pugh denied him access to the courts. Harrod further alleged that Kaminski
denied him access to the courts and to his attorney, tampered with his legal documents,
discriminated against him because of his race, and increased his Security Total and
assigned him a PSF of “Greatest Severity Offense” in retaliation for filing a civil rights
complaint in 2001. See Harrod v. United States, et. al, D. N.J. Civ. No. 01-cv-02577.
Harrod sought compensatory and punitive damages, as well as a preliminary injunction
“to ensure that these officials [adhere] to their own regulations and policies.”
On February 27, 2004, after allowing Harrod to amend his complaint, the District
Court dismissed all of his claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), with the
exception of Harrod’s retaliation claim. Kaminski then moved for summary judgment on
the retaliation claim arguing, inter alia, that Harrod failed to: (1) exhaust his
administrative remedies; and (2) establish a causal connection between the 2001
complaint and the October 3, 2003 Program Review Report. The Magistrate Judge
assigned to the case concluded that Harrod had failed to establish that the 2001 complaint
2
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
3
was a substantial or motivating factor in Kaminski’s decision to increase his Security
Total or to assign him a PSF of “Greatest Severity Offense.” Over Harrod’s objections,
the District Court adopted the report and recommendation and granted Kaminski’s motion
for summary judgment in an order entered on January 19, 2005. Harrod has timely
appealed.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s sua sponte dismissal for failure to state a claim, and the
District Court’s order granting summary judgment. See Abramson v. William Patterson
College of N.J., 260 F.3d 265, 276 (3d Cir. 2001); Allah v. Seiverling,
229 F.3d 220, 223
(3d Cir. 2000).
We agree with the District Court that Harrod failed to state a claim against
Gubbioti or Pugh. Liability in a civil rights action must be predicated upon personal
involvement. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Harrod’s
amended complaint, however, contained no facts to support a conclusion that Gubbioti or
Pugh were personally involved in the alleged constitutional violations. Likewise,
Harrod’s claim that Kaminski denied him access to the courts was properly dismissed by
the District Court. It is well-settled that an inmate who alleges a violation of the right of
access to the courts must show an actual injury. See Lewis v. Casey,
518 U.S. 343, 350
(1996). Actual injury can be demonstrated by showing that a defendant’s actions resulted
in the “loss or rejection of a legal claim.” Oliver v. Fauver,
118 F.3d 175, 177 (3d Cir.
4
1997). Harrod made no such allegation in his amended complaint. Finally, because
Harrod failed to show that Kaminski intentionally or purposefully discriminated against
him because of his race, the District Court properly dismissed Harrod’s equal protection
claim.
We also agree with the District Court that Kaminski was entitled to summary
judgment on Harrod’s First Amendment claim of retaliation. In Rauser v. Horn, 241 F.3d
330, 333 (3d Cir. 2001), this Court held that to prevail on a retaliation claim, a prisoner
must prove that the conduct giving rise to the alleged retaliation was constitutionally
protected, that he suffered some “adverse action” at the hands of prison officials, and that
the protected activity was a substantial or motivating factor in the challenged action.
Harrod alleged in his amended complaint that Kaminski increased his Security
Total from eleven to seventeen points and assigned him a PSF of “Greatest Severity
Offense” in retaliation for his filing of a civil rights complaint in 2001. In his motion for
summary judgment, however, Kaminski asserted that the changes to Harrod’s security
level and classification were made because, as of August 10, 2003, the fifty-one month
federal sentence for weapons offenses was considered part of Harrod’s criminal history.
Kaminski supported his motion for summary judgment with affidavits, the Federal
Bureau of Prisons (“BOP”) Program Statement for Security Designation and Custody
Classification, and Harrod’s Program Review Reports. Harrod responded by merely
relying on the allegations in his complaint, and by adding further allegations that
5
Kaminski had made false statements to the District Court and had failed to comply with
the BOP’s policies. Upon thorough review of the record, we must conclude that Harrod
failed to meet his burden of proving that a genuine issue for trial existed. Despite
Harrod’s arguments to the contrary, he provided no support for his contention that his
2001 civil rights complaint was a substantial or motivating factor in Kaminski’s
increasing his Security Total and assigning him a PSF of “Greatest Severity Offense.”
Accordingly, the District Court properly concluded that Kaminski was entitled to
summary judgment.
Because Harrod’s appeal lacks arguable merit in law or fact, we will dismiss it as
frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). The motion for
appointment of counsel is denied. See Tabron v. Grace,
6 F.3d 147, 155-56 (3d Cir.
1993).
6
