GLD-291                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 11-2986
                                  ___________

                               LAVOND A. HILL,
                                  Appellant

                                        v.

   GERALD L. ROZUM, Superintendent of SCI Somerset; DANIEL GEHLMANN,
   Deputy of SCI Somerset; ROBERT B. MACINTYRE, Chief Hearing Examiner;
  JOSEPH DUPONT, Hearing Examiner of SCI Somerset; KALASKY, Correctional
                            Officer of SCI Somerset
                   ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                       (D.C. Civil Action No. 11-cv-00097)
                    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 15, 2011

           Before: AMBRO, CHAGARES and COWEN, Circuit Judges

                         (Opinion filed: October 12, 2011)

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM
       Lavond A. Hill appeals pro se and in forma pauperis from the United States

District Court for the Western District of Pennsylvania’s dismissal of his complaint. For

the reasons that follow, we will summarily affirm the District Court’s order.

                                             I.

       In April 2011, Hill (a Pennsylvania state prisoner) commenced a civil rights action

under 42 U.S.C. § 1983 alleging that his Fifth Amendment right against self-

incrimination was violated when he remained silent after a prison guard asked him

whether there was any contraband in his cell. Upon the subsequent search of Hill’s cell,

a homemade weapon was found. Hill was thereafter charged with four disciplinary

violations, including possession of contraband and failure to report the presence of

contraband. After a disciplinary hearing, Hill was found guilty of all charges and placed

in the Restricted Housing Unit (“RHU”) for 240 days. Hill’s subsequent administrative

grievances and appeals, which were based on his claim that his right against self-

incrimination was violated, were unsuccessful.

       Upon granting Hill permission to proceed in forma pauperis, the Magistrate Judge

recommended that the complaint be dismissed for failure to state a claim and determined

that amendment of the complaint would be futile. The District Court adopted the

Magistrate Judge’s report after rejecting Hill’s objections thereto, and dismissed the

complaint.

       Hill now appeals.



                                            II.

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       Because this appeal presents no substantial question, we will summarily affirm the

order of the District Court dismissing the complaint for failure to state a claim. 3d Cir.

LAR 27.4 and I.O.P. 10.6. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291,

and our review of the District Court’s sua sponte dismissal of a complaint is plenary.

Allah v. Seiverling, 

, 223 (3d Cir. 2000).

       Hill claims that his Fifth Amendment right against self-incrimination was violated

when he was allegedly subject to disciplinary proceedings and sanctioned by being

placed in the RHU after remaining silent when a correctional officer asked him whether

he had contraband in his cell. The Fifth Amendment, made applicable to the states by the

Fourteenth Amendment, requires that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. Const., Amdt. 5. Here, as the District Court

noted, Hill was never made to be a witness against himself in violation of the

Constitution because his silence was never used against him in a criminal setting. See

Chavez v. Martinez, 

, 767 (2003) (holding that the use of compulsive

questioning, without more, does not violate the Constitution, and stating that it is “not

until [a statement’s] use in a criminal case that a violation of the Self-Incrimination

Clause occurs”); Baxter v. Palmigiano, 

, 318 (1976). Further, there were no

ramifications to Hill’s disciplinary charges other than being placed in the RHU. For

these reasons, we agree that Hill’s complaint failed to state a claim.

       We have also held that a district court should not dismiss a pro se complaint

without allowing the plaintiff leave to amend unless amendment would be inequitable or

futile. See Alston v. Parker, 

, 235 (3d Cir. 2004); Grayson v. Mayview

                                              3
State Hosp., 

, 108 (3d Cir. 2002). Here, the District Court appropriately

determined that amendment would be futile. Further, we note that Hill had, and took, the

opportunity to object to the Magistrate Judge’s recommendation, but revealed no flaw in

the dismissal of his complaint.

       We will therefore summarily affirm the judgment of the District Court. See 3d

Cir. LAR 27.4; I.O.P. 10.6. Hill’s motion for appointment of counsel is denied.




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