BLD-231                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 11-1933
                                  ___________

                          SHAKUR D. GANNAWAY,
                                          Appellant

                                        v.

 BERKS COUNTY PRISON; QUIGLEY CHIEF DEPUTY WARDEN; BROWN AND
BERGIN DEPUTY WARDENS; WARDEN GEORGE WAGNER; JESSICA VERGER;
 LT. CASTRO; SGT. RINGLER; VANVILLA, Hearing Officer; CO CUNNINGHAM;
   CO WILT; CO LABATE; CO FERNANDEZ; CO SPOTTS; CO WILLIAMSON
                 ____________________________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                          (D.C. Civil No. 5:09-cv-04501)
                 District Judge: Honorable Eduardo C. Robreno
                  ____________________________________

      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
                                  July 8, 2011

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

                          (Opinion filed July 18, 2011 )
                                   _________

                                   OPINION
                                   _________

PER CURIAM

                                        1
         Proceeding pro se and in forma pauperis, Shakur Gannaway appeals orders of the

District Court granting summary judgment in favor of the defendants and denying his

motions for appointment of counsel. We will affirm.

                                              I.

         Gannaway‘s civil rights complaint arose from a period of detention in the Berks

County Jail (BCJ),1 where he was incarcerated before trial on charges relating to a May

2009 armed robbery, and also pursuant to a probation/parole detainer attached to an

earlier offense. Written in a discursive, stream-of-consciousness fashion, the complaint

assailed a series of injustices perpetrated by the allegedly racist and abusive staff of

BCJ—outrages that Gannaway likened to ―modern-day slavery.‖ The offenses were

legion, and included: retaliating for filing grievances, committing racist acts, removing

his mattress from his cell, ―starving‖ him during the Muslim religious holiday of

Ramadan, instituting a ―Nutraloaf‖ diet (which made him sick and interfered with his

ability to swallow medicine), forcing him to occupy a cell with a suspected homosexual,

overpricing commissary items, and depriving him of medical treatment. Gannaway later

amended his complaint, elaborating upon his retaliation complaints, articulating

harassment by various guards, and describing the theft of funds from his inmate account.

         The District Court ordered Gannaway deposed; following the deposition, the

defendants moved for summary judgment. The District Court granted the motion, finding


1
    The BCJ was formerly known as the Berks County Prison.
                                              2
―that [Gannaway]‘s claims [we]re either legally insufficient or unsupported by the

record.‖ Gannaway v. Berks Cnty. Prison, No. 09-4501, 

,

at *7 (E.D. Pa. Mar. 29, 2011).

       Gannaway appealed. He has twice moved for the appointment of counsel.

                                             II.

       Deriving our jurisdiction from 28 U.S.C. § 1291, we exercise plenary review over

a District Court‘s grant of summary judgment. Lamont v. New Jersey, 

, 181

(3d Cir. 2011). In reviewing the summary-judgment order, we apply ―the same standard

that the lower court should have applied.‖ Farrell v. Planters Lifesavers Co., 

, 278 (3d Cir. 2000); see also Fed. R. Civ. P. 56(a) (summary judgment is appropriate

if ―there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law‖). Our review of the facts and the inferences drawn from

them must be in the light most favorable to Gannaway, the non-moving party; and as

Gannaway is a pro se litigant, his filings are to be liberally construed. Tri-M Grp., LLC

v. Sharp, 

, 415 (3d Cir. 2011); Capogrosso v. Sup. Ct. of N.J., 

,

184 n.1 (3d Cir. 2009) (per curiam).

       Since appointment of counsel to an in forma pauperis plaintiff ―is discretionary, . .

. we review the district court‘s decision to deny counsel for an abuse of discretion.‖

Parham v. Johnson, 

, 457 (3d Cir. 1997). We may summarily affirm on any




                                              3
ground supported by the record if no substantial question is presented by the appeal.

Murray v. Bledsoe, No. 10-4397, ___ F.3d ___, 

, at *3 (3d

Cir. June 10, 2011); see also Third Cir. L.A.R. 27.4; I.O.P. 10.6.


                                             III.

       In rendering its decision, the District Court observed that Gannaway had not fully

exhausted the BCJ‘s administrative remedy process for at least some of his claims.

Despite this, it ―review[ed] the majority of these claims as if exhausted.‖ Gannaway,

at *2 n.1 (citing 42 U.S.C. § 1997e(c)(2)). The

remainder—those non-exhausted claims that were not resolved by the opinion, such as

the ―lack of access to the law library, lack of adequate material in the library, lack of

sanitary food, and alleged tampering with mail and untimely delivery of mail,‖ 

severed from the complaint and dismissed, with ―leave to pursue these claims

after exhausting administrative remedies.‖ 

n.1.

       We recognize that the style of Gannaway‘s complaint renders difficult the process

of determining proper exhaustion. However, at this late date, it is unlikely that he would

be able to exhaust remaining administrative remedies. According to the BCJ handbook,

an initial grievance must be filed within 30 days of the grievable incident. BCJ Inmate

Handbook § 9.3.6 (2005). The general turnaround time is 15 days, as is the timeframe for

filing appeals of adverse decisions. 

Therefore, in order to simplify our

review and definitively address Gannaway‘s claims, we will analyze them under a
                                              4
summary-judgment framework on the merits.

                                            IV.

A) Disciplinary Segregation Claims

       Many of Gannaway‘s complaints relate to prison policies—specific, written

policies, described at length in the prison handbook and in the ―Disciplinary and Security

Housing Unit‖ orientation materials—governing confinement in disciplinary segregation.

Developed in response to the problem of inmates seeking disciplinary segregation for its

benefits (such as single-cell status and delivery of meals), the programs were designed to

make residing in the segregation unit less appealing; according to the Warden, they are

behavioral modification plans and are not intended to be punitive. Decl. of George A.

Wagner. Penalties include a temporary mattress restriction during daylight hours (lifted

within seven days if the inmate displays appropriate behavior) and a diet consisting of

Nutraloaf.

       It was these two aspects of disciplinary confinement that Gannaway attacked most

directly. He argued that the deprivation of a mattress exacerbated a prior back injury.

Gannaway also claimed that he was rendered physically ill by the Nutraloaf, which he

described as unpalatable and poorly prepared, but that ―they‖ refused to give him real

food, and he was therefore unable to take his medicine; moreover, he was ―entitle[d] to

know what he [was] eating.‖




                                             5
       Neither claim has merit under the Eighth or Fourteenth Amendments. 2 Gannaway

did not inform prison officials of his difficulty keeping down the Nutraloaf, despite

complaining about the indignity of the meal on numerous occasions. He has therefore

not shown the requisite deliberate indifference needed to prevail on summary judgment

or at trial. Farmer v. Brennan, 

, 836 (1994); see also LeMaire v. Maass, 

, 1456 (9th Cir. 1993) (―Because a temporary Nutraloaf diet does not deny ‗the

minimal civilized measure of life‘s necessities,‘ its use falls short of the threshold

deprivation necessary to form the basis of an Eighth Amendment violation.‖) (citations

omitted).3

       Gannaway‘s spare allegations regarding the unsanitary containers in which the

Nutraloaf was provided, as well as its undercooked or overcooked status, also do not state



2
  Gannaway was detained in the BCJ both as a pretrial detainee and pursuant to a
probation/parole detainer that activated upon his arrest. The record fails to make clear
the resolution of that detainer, and case law has not definitively addressed whether a
prisoner awaiting a hearing on a detainer falls under the protection of the Eighth or
Fourteenth Amendments. See Palmer v. Marion Cnty., 

, 592–93 (7th Cir.
2003); see also Williams v. Mussomelli, 

, 1133 (3d Cir. 1983) (―It is
established that pretrial detainees are protected by the due process clause of the fifth and
fourteenth amendments, not the cruel and unusual punishment clause of the eighth
amendment.‖ (citing Bell v. Wolfish, 

, 535 n.16 (1979))). But we need not
definitively decide the issue, either generally or pertaining exclusively to Gannaway‘s
status. The Fourteenth Amendment grants at least as much protection as does the Eighth
Amendment. Natale v. Camden Cnty. Corr. Facility, 

, 581 (3d Cir. 2003).
At a bare minimum, then, Gannaway must meet the ―deliberate indifference‖ test of
Estelle v. Gamble, 

, 105 (1976), in order to succeed. 

.
As shown repeatedly herein, he failed to do so.

                                              6
a constitutional injury. Cf. Hamm v. De Kalb Cnty., 

, 1575 (11th Cir.

1985) (―The fact that [prison] food occasionally contains foreign objects or sometimes is

served cold, while unpleasant, does not amount to a constitutional deprivation.‖). And

Gannaway failed to highlight his back problems in objecting to the mattress restriction.

See Gannaway Dep. 146:4–7.

       To the extent that Gannaway raised a facial attack on the validity of the

disciplinary unit restrictions as applied to pretrial detainees—who ―may not be punished

prior to an adjudication of guilt in accordance with due process of law,‖ 

—we must decide ―whether the disability is imposed for the purpose of

punishment or whether it is but an incident of some other legitimate governmental

purpose.‖ 

see also Turner v. Safley, 

, 89 (1987) (―[W]hen a prison

regulation impinges on inmates‘ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.‖). The restrictions pass muster.

They are moderate, limited in duration, and ―reward‖ good behavior—all consonant with

the behavioral-modification goals highlighted by the defendants.


B) Religious Restrictions

       Gannaway claimed that the BCJ fails to ―acknowledge the Ramadan month,‖ and

that officials told him he ―couldn‘t practice[] [his] religious belief[s]‖ as a Muslim.


3
  His claims of rapid weight loss, which might otherwise alert officials to the existence of
a serious medical issue, are not supported by the record.
                                              7
Specific incidents he cited included an alleged failure to provide him with suitable fast-

breaking food for Ramadan and an episode where he was prevented from attending a

religious service, ostensibly for misbehavior.

       These claims find no support in the record; indeed, the defendants submitted a

Ramadan-fast participant list, to which Gannaway was a signatory. Similarly, there is no

evidence that Nutraloaf was an unacceptable food for breaking the fast, or that being

deprived attendance at a single service constituted a substantial burden on Gannaway‘s

ability to practice his religion, see Hernandez v. Comm‘r, 

, 699 (1989).

Accordingly, Gannaway has failed to meet his burden under the First Amendment‘s Free

Exercise clause or the Religious Land Use and Institutionalized Persons Act. See 42

U.S.C. § 2000cc-2; Washington v. Klem, 

, 277 (3d Cir. 2007).


C) Strip Search

       Gannaway alleged that he was ―woken up at 5:45am in the morning‖ and forced to

strip for inspection in the prison gym. During his deposition, he clarified that he was, in

fact, wearing his shorts the entire time, and that the search was conducted due to a

problem elsewhere on the block. See Gannaway Dep. 218:8–219:8. He also said that the

length of time he was standing exacerbated his back injury, causing him some pain, but

that the Lieutenant he informed responded ―too bad.‖ 

also 

claim lacks viability under the Fourth, Eighth, or Fourteenth Amendments.

Gannaway cannot show that this search was unreasonable, especially in the aftermath of
                                             8
an actual incident to which authorities were responding. See Florence v. Bd. of Chosen

Freeholders, 

, 311 (3d Cir. 2010), cert. granted, 

(2011). Nor

has Gannaway met either the subjective or objective prongs required to demonstrate an

Eighth or Fourteenth Amendment violation with regard to his back pain, 

—and, regardless, the record demonstrates that he was on medication for pain

throughout the duration of his confinement.


D) Retaliation

       Gannaway maintained that his periods in disciplinary confinement, and the

misconducts issued against him, were the result of retaliatory harassment. However, he

has shown no ―causal link between the exercise of his constitutional rights and the

adverse action taken against him.‖ Rauser v. Horn, 

, 333 (3d Cir. 2001). To

the contrary, Gannaway repeatedly violated BCJ policies. See BCJ Inmate Handbook

§ 2.5 (prohibiting the possession of, and alteration of, items belonging to another); 

(―You are required to consume prescription medication in the presence of medical

personnel. Staff are permitted to examine your mouth to ensure compliance.‖); 

(describing various acts of misconduct, including ―harassment by communication,‖

encompassing abuse of the grievance and internal-communications processes).

Nothing in the record suggests that Gannaway‘s conduct, assuming arguendo its

constitutionality, was a ―‗substantial or motivating factor‘ in the decision to discipline

him.‖ 

(quoting Mount Healthy Bd. of Educ. v. Doyle, 

275, 287 (1977)).4 Lacking this essential connection, he cannot prevail.


E) Racial Comments

       Gannaway contends that he was subjected to racial epithets by guards and other

prison personnel. But it is well settled that ―[t]he use of racially derogatory language,

while unprofessional and deplorable, does not violate the Constitution. Standing alone,

simple verbal harassment does not constitute cruel and unusual punishment, deprive a

prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.‖

DeWalt v. Carter, 

, 612 (7th Cir. 2000) (citations omitted). As Gannaway

has alleged nothing more than verbal harassment (and one occurrence of an undirected

racial epithet carved on a cell door by unknown parties), he cannot recover on this claim.


F) Legal Mail

       Gannaway claimed that he was denied access to the courts due to limited law-

library availability; inadequate materials available therein; and instances of tampering

with, delaying, and disrupting his legal mail. He alleged that a habeas petition was

denied as untimely due to this inference with his ability to prepare a legal case.

Gannaway Dep. 119:19–20; see also Oliver v. Fauver, 

, 177 (3d Cir. 1997).


4
  Other ―harassment‖ identified by Gannaway is simply too vague to support
constitutional relief. For example, he accused CO Castro of making sexual overtures, but
was only able to cite a single incident where Castro requested that Gannaway stand in his
cell while the latter was naked—too little to be considered a genuine issue of material
fact.
                                             10
But to prevail on a First Amendment access argument, Gannaway must show the

underlying lost claim to have been nonfrivolous. Christopher v. Harbury, 

,

414–15 (2002). Gannaway‘s ―habeas‖ petition was filed pro se (despite his having

counsel), in state court, during the pendency of his state criminal trial. It does not appear

to have been denied on timeliness grounds, and Gannaway has not otherwise shown its

merit. Accordingly, his access claim must fail.5

       To the extent that his legal mail claim is premised on his First Amendment free-

speech rights, he has not shown a pattern or practice concerning legal mail that is

unrelated to a legitimate penological interest. Jones v. Brown, 

, 359–60 (3d

Cir. 2006). Nor does he point to any prison program or policy that would impinge on his

First Amendment right to expression with regard to mail or other communications of a

non-legal character. See Nasir v. Morgan, 

, 376–77 (3d Cir. 2003).


G) Medical Treatment

       Gannaway insisted that he received inadequate medical treatment, assailing the

qualifications of various BCJ physicians. Gannaway Dep. 321:20–24. But evidence in




5
  Moreover, Gannaway made clear in his deposition that he was not denied access to the
law library; rather, his time was simply limited in a way that he personally found to be
unacceptable, and which compared unfavorably to the policies of other county jails.
Gannaway Dep. 187:23–188:4. See Lewis v. Casey, 

, 355 (1996)
(emphasizing that prisons must provide tools ―that the inmates need in order to attack
their sentences, directly or collaterally, and in order to challenge the conditions of their
                                             11
the record demonstrates that he received continuous medical treatment for a variety of

ailments, and ―mere disagreement as to the proper medical treatment,‖ without more,

cannot support a claim of unconstitutional wrongdoing. Monmouth Cnty. Corr. Inst.

Inmates v. Lanzaro, 

, 346 (3d Cir. 1987).


H) Financial Deductions

       Gannaway accused the BCJ of taking money from his prison account without his

permission and without notice. Inmates have a property interest in funds held in prison

accounts, and therefore are entitled to due process with respect to those funds. Reynolds

v. Wagner, 

, 179 (3d Cir. 1997). But all of the deductions about which he

complains were explained to him by the BCJ. For example, he didn‘t ―see the relevance‖

of why he was charged for a disciplinary hearing, Gannaway Dep. 161:21–23, ignoring

the clear warning in the prison handbook regarding disciplinary hearing penalties, see

BCJ Inmate Handbook § 4.3. Gannaway also fails to realize that many other deductions

derive from the filing fees he currently owes this Court (and others) for proceeding in

forma pauperis in earlier civil suits. Other complaints involve failure to issue prompt

receipts, a claim that is at best ancillary to any actual constitutional harm. The record

supports summary judgment in favor of the defendants.

       To the extent that Gannaway raised a claim regarding overpriced items in the



confinement. Impairment of any other litigating capacity is simply one of the incidental
(and perfectly constitutional) consequences of conviction and incarceration‖).
                                             12
prison commissary, his allegations were entirely conclusory and devoid of factual support

and, as such, could not sustain the charge.


I) Clogged Toilet

       To the extent that Gannaway‘s complaint can be read to assert a constitutional

violation in connection with a clogged toilet in his cell, the record shows that the toilet

was partly functional; it simply required frequent plunging. Gannaway decided that he

no longer wished to plunge the toilet during the period while the BCJ awaited the arrival

of an available plumber. The result cannot fairly be attributed to the BCJ.


J) Destruction of Property

       To the extent that Gannaway complained that his property was damaged,

confiscated, or destroyed by BCJ employees, he cannot prevail, as adequate state post-

deprivation remedies were available. See Hudson v. Palmer, 

, 533 (1984);

Tillman v. Lebanon Cnty. Corr. Facility, 

, 422 (3d Cir. 2000).


K) Conspiracy

       Throughout these proceedings, Gannaway has insisted on the conspiratorial nature

of the actions taken against him. He termed the prison a ―corrupted body,‖ one that

―stick[s] together.‖ Gannaway Dep. 176:2–3. ―In order to prevail on a conspiracy claim

under § 1983, a plaintiff must prove that persons acting under color of state law conspired

to deprive him of a federally protected right.‖ Ridgewood Bd. of Educ. v. N.E. ex rel.
                                              13
M.E., 

, 254 (3d Cir. 1999), superseded by statute on other grounds as stated

in P.P. v. West Chester Area Sch. Dist., 

, 730 (3d Cir. 2009). But ―the

linchpin for conspiracy is agreement,‖ Bailey v. Bd. of Cnty. Comm‘rs, 

,

1122 (11th Cir. 1992), and Gannaway has shown no agreement, implicit or otherwise, in

connection with the actions he cites.

                                             V.

       Since Gannaway‘s claims were neither complex nor meritorious, the District Court

did not abuse its discretion in denying his requests for counsel. See Tabron v. Grace, 

, 155 (3d Cir. 1993).

                                             VI.

       Gannaway‘s complaint and amended complaint pose challenges to judicial

analysis; nevertheless, we are satisfied that we (with the able assistance of the District

Court) have identified, entertained, and discussed all of the major issues Gannaway

attempted to raise. Having found them wanting, and encountering no substantial issue on

appeal, we will summarily affirm. Gannaway‘s motions for counsel are denied.