NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                        Nos. 10-4140 & 10-4241
                             ___________

                          JEROME PREVET,
                                              Appellant

                                   v.

  MICHAEL C. BARONE, SUPERINTENDENT; MAJOR MR. PAUL A. ENNIS;
       UNIT MANAGER MR. GRAHAM; COUNSELOR MR. BLICHA;
   PAROLE BD SUPER. MRS. EVERTTE; *SECRETARY PENNSYLVANIA
                  DEPARTMENT OF CORRECTIONS;
       PAROLE AGENT MRS. BAKER; PAROLE AGENT MRS. LUTZ;
MRS. CYNTHIA L. DAUB, PAROLE BOARD SECRETARY; PAROLE AGENT MR.
                            HOUGES

                *(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 Action No. 1-09-cv-00160)
            Magistrate Judge: Honorable Susan Paradise Baxter
              ____________________________________

             Submitted Pursuant to Third Circuit LAR 34.1(a)
                             May 20, 2011

          Before: BARRY, JORDAN and GARTH, Circuit Judges

                      (Opinion filed: May 20, 2011)

                              ___________

                               OPINION
                              ___________
PER CURIAM

       Jerome Prevet, an inmate at SCI-Forest in Pennsylvania, appeals from an order of

the District Court granting summary judgment to the defendants in this pro se civil rights

action. For the following reasons, we will affirm the District Court’s judgment.

       Prevet is serving a prison sentence of seventeen to thirty-four years for a 1981

conviction. His maximum sentence expires on October 21, 2014. He has been

considered for and denied parole on a number of occasions. His last hearing occurred in

March 2009. At that time, he had recently completed the prison’s sex-offender treatment

program, which the Pennsylvania Board of Probation and Parole (“PBPP”) had

previously listed as a requirement for parole consideration. Citing the negative

recommendation supplied by the Department of Corrections (“DOC”) and Prevet’s

minimization of the nature and circumstances of his offense, however, the PBPP again

denied parole.

       In July 2009, Prevet filed a complaint pursuant to 42 U.S.C. § 1983. He named as

defendants several DOC and PBPP employees and alleged, inter alia, that he was denied

parole because (1) he had previously filed grievances and lawsuits against prison officials

and (2) he is a member of the Nation of Islam. He claimed that the DOC defendants had

retaliated against him by refusing to provide the positive parole recommendation, and

that the PBPP defendants had retaliated against him by denying parole.

       The District Court awarded summary judgment to the defendants, finding that the

parole denial was “reasonably related to legitimate penological interests,” and that the
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PBPP would have rendered the same decision notwithstanding any motivation to

retaliate. See Carter v. McGrady, 

, 158-59 (3d Cir. 2002). Prevet filed a

timely appeal, confined to a challenge to the District Court’s ruling on his retaliation

claims. 1

       We have jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing a district

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

light most favorable to the non-moving party. Dee v. Borough of Dunmore, 

, 229 (3d Cir. 2008). Summary judgment should be granted only if there is no

genuine as to any material fact and the moving party is entitled to judgment as a matter of

law. Barefoot Architect, Inc. v. Bunge, 

(3d Cir. 2011).

       Prison officials are liable for retaliatory conduct if the conduct was motivated “in

substantial part by a desire to punish [the] individual for exercise of a constitutional

right,” Allah v. Seiverling, 

, 225 (3d Cir. 2000) (quoting Thaddeus-X v.

Blatter, 

, 386 (6th Cir. 1999) (en banc)), such as an inmate’s filing of

lawsuits and grievances related to incarceration, or his religious practice. See Mitchell v.

Horn, 

, 530 (3d Cir. 2003); Milhouse v. Carlson, 

, 373 (3d Cir.


       1
        We note that the defendants did not raise, and the District Court did not consider,
whether Heck v. Humphrey, 

(1994), bars Prevet’s challenge to his parole
denial. See Williams v. Consovoy, 

, 177 (3d Cir. 2006). Although we
directed the parties to address this issue, along with whether the defendants had waived
the defense by failing to raise it, see Kramer v. Vill. of North Fond du Lac, 

,
862-63 (7th Cir. 2004), they did not do so. Because we agree with the District Court’s
decision to deny the claims on the merits, we need not decide whether Heck would bar
Prevet’s challenge.
                                              3
1981). To prevail on a retaliation claim, the prisoner must prove: (1) that the conduct

leading to the alleged retaliation was constitutionally protected; (2) that he suffered an

adverse action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights; and (3) that his protected conduct was a substantial or motivating

factor in the decision to discipline him. Rauser v. Horn, 

, 333 (3d Cir.

2001). However, “prison officials may still prevail by proving that they would have

made the same decision absent the protected conduct for reasons reasonably related to a

legitimate penological interest.” 

       Here, the DOC defendants argue that even assuming that Prevet had established a

prima facie case for retaliation, they acted pursuant to a legitimate penological interest in

withholding a favorable parole recommendation, because of Prevet’s “poor adjustment,

reflected in seven misconducts, multiple group failures and the nature of his offense . . .

.” Appellees’ Brief at 9. We find these factors are indeed legitimate penological

concerns, and that the DOC defendants met their burden of showing that they would have

withheld a parole recommendation absent any retaliatory motive. Similarly, the PBPP

defendants denied parole based on the DOC’s negative recommendation, and Prevet’s

“minimization of the nature and circumstances of the offense(s) committed.” We agree

with the District Court that these are also legitimate penological concerns, and that the

PBPP defendants met their burden of showing that they would have made the same

decision absent any retaliatory motive. The District Court thus properly granted

summary motion in favor of the defendants.
                                                4
Accordingly, we will affirm the District Court’s judgment.




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