GLD-041                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-1996
                                  ___________

                         HILTON KARRIEM MINCY,
                                            Appellant

                                        v.

   DEPUTY SUPERINTENDENT KENNETH CHMIELSEWSKI; LIEUTENANT
 WILLIAM WETZEL; OFFICER J. E. VANCE; OFFICER J. E. MURPHY; OFFICER
   BRIAN GOWEN; RESTRICTED HOUSING UNIT LIEUTENANT WILLIAM
 WETZEL; PROPERTY ROOM LIEUTENANT LLOYD KERSHNER; PROPERTY
     ROOM LIEUTENANT MICHAEL KMIECIAK; RESTRICTED HOUSING
    LIEUTENANT BRONSBURG; PROPERTY ROOM SERGEANT MEYERS;
PROPERTY ROOM OFFICER HRYCIYNIA; MAJOR THOMAS DERFLER; BLOCK
     COUNSELOR K. KORNASKY; UNIT MANAGER MARTIN WILLIAMS;
  SECURITY LIEUTENANT GERALD GAVIN; DEPUTY SUPERINTENDANT
    KENNETH G. CHMIELEWSKI; DEPUTY SUPERINTENDANT THOMAS
 TEMPERINE; SUPERINTENDANT EDWARD KLEM; LIEUTENANT RUSSELL
                             BROUGHT
                ___________________________________

                On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 1:07-cv-00790)
                District Judge: Honorable Christopher C. Conner
                  ____________________________________

      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 16, 2012

             Before: FUENTES, FISHER and ROTH, Circuit Judges

                         (Opinion filed: January 4, 2013)
                                   _________


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                                       OPINION
                                       _________

PER CURIAM

       Hilton Karriem Mincy, an inmate currently incarcerated at SCI Albion in Albion,

Pennsylvania and proceeding pro se, appeals from an order of the United States District

Court for the Middle District of Pennsylvania denying Mincy‟s partial motion for

summary judgment and granting Appellees‟ motion for summary judgment in Mincy‟s

civil rights suit pursuant to 42 U.S.C. § 1983. Because this appeal does not present a

substantial question, we will summarily affirm the District Court‟s order. See 3d Cir.

L.A.R 27.4; I.O.P. 10.6.

                                            I.

A.     Factual Background

       Because we primarily write for the parties, we need only recite the facts necessary

for our discussion. At all times relevant to Mincy‟s claims, he was incarcerated at SCI

Mahanoy in Frackville, Pennsylvania. On March 25, 2005, Mincy received permission to

order new sneakers and boots, and his new sneakers and boots arrived in SCI Mahanoy‟s

mail room around April 12, 2005. However, Mincy‟s package was placed in the property

room because he was serving ninety days of disciplinary custody in the Restricted

Housing Unit (“RHU”) when the package arrived. In April or May 2005, Mincy

contacted Kerschner, the property room lieutenant, with concerns that his sneakers and

boots were missing. Later, on September 7, 2005, Mincy sent a request regarding his




                                            2
property to the mail room supervisor; he was subsequently informed that he had received

his sneakers and boots and that the package was in the property room.

      From April 2005 through January 2006, Mincy received a number of misconduct

findings resulting in continuous disciplinary custody in the RHU. On May 27, 2005,

Mincy was found guilty of threatening an employee with bodily harm and using abusive

or obscene language. On June 3, 2005, Mincy was found guilty of another violation of

the same offense. On December 2, 2005, he was found guilty of assault, threatening an

employee with bodily harm, and using abusive or obscene language. Mincy was also

found guilty of possession of contraband on September 6, 2005.

      On June 8, 2006, Mincy sent requests for protective custody and a transfer from

SCI Mahanoy to Superintendant Klem and Deputy Secretary Vaughn; however, he was

told that his requests were unfounded. On July 26, 2006, Mincy sent a request asking to

be separated from six inmates after his release from the RHU to Lieutenant Gavin. After

conducting an investigation, Gavin sent a memorandum to Klem recommending that

Mincy not be returned to general population housing, that a transfer be requested, and

that he remain in the RHU pending a decision on the transfer petition. Mincy‟s transfer

request was approved on August 22, 2006, and he was informed that he was to be

transferred to SCI Albion.

      On August 31, 2006, Mincy was escorted to the property room to inventory and

pack his property. Present in the property room during his inventory were property room

officers Hryciyna and Meyers. Mincy packed his own property, including his typewriter,

for shipping to SCI Albion. The next day, Mincy filed a grievance alleging that his new

                                            3
boots and sneakers had been taken in retaliation for his filing civil complaints and inmate

grievances. Although his grievance was initially denied by Lieutenant Brought, it was

remanded because the sneakers and boots listed on Mincy‟s inventory sheet were not the

new items he had ordered in March 2005. The items could not be located, and Mincy

received a credit to his inmate account reimbursement for the missing boots and sneakers.

Mincy subsequently filed a grievance against Brought for interference with the grievance

process; however, this grievance was denied.

       Mincy was transferred to SCI Albion on September 5, 2006, and his property was

shipped on September 8, 2006. After his transfer, Mincy filed a grievance alleging that

his transfer was in retaliation for his previously filed grievances and lawsuits. Mincy also

filed a grievance concerning damages to his typewriter because it was damaged upon

arrival at SCI Albion; he was subsequently reimbursed for the cost of the typewriter.

B.     Procedural Background

       In 2007, Mincy filed a complaint alleging various claims against seventy-seven

defendants from both SCI Mahanoy and SCI Albion. After a preliminary review, the

District Court directed Mincy to file an amended complaint complying with Federal

Rules of Civil Procedure 8 and 20. Mincy instead filed a new complaint to commence

another action, and the District Court ordered that this new complaint be withdrawn and

filed as an amended complaint in this action. The District Court then dismissed this

complaint for failing to adhere to the requirements of Rule 8, and on appeal, we vacated

the dismissal order and remanded for further consideration. In accordance with our



                                             4
mandate, the District Court ordered that Mincy‟s complaint be served on Klem, Beard,

and Brooks, the only defendants specifically named.

       Mincy subsequently filed a motion to separate the parties, and the defendants

moved to dismiss Mincy‟s complaint. The District Court denied the motion to dismiss

without prejudice and granted the motion to separate, directing Mincy to file proposed

amended complaints separating the different claims and parties. Mincy did so on

September 1, 2009, filing one proposed amended complaint containing claims against the

SCI Mahanoy defendants and one containing claims against the SCI Albion defendants.

The SCI Albion complaint was subsequently docketed and transferred to the United

States District Court for the Western District of Pennsylvania. (See Mincy v. McConnell,

W.D. Pa. Civ. No. 1:09-cv-236.)1 The SCI Mahanoy complaint was docketed in this

action and served on all named defendants.

       Appellees filed a motion to dismiss the complaint, which the District Court

granted in part and denied in part on February 16, 2010. The District Court provided

Mincy with the opportunity to file a second amended complaint regarding his claims that

Vance, Gower, Wetzel, and Murphy issued retaliatory misconduct reports and his claims

alleging retaliatory theft of property, retaliatory destruction of property, and retaliatory

transfer. Mincy filed his second amended complaint on May 24, 2010.

       After extensive discovery, Appellees filed a motion for summary judgment, and

Mincy filed a motion for partial summary judgment. On March 6, 2012, the District


1
 Mincy‟s appeal of the judgment in Mincy v. McConnell is currently pending before this
Court. (See Mincy v. McConnell, No. 12-3463.)
                                               5
Court granted Appellees‟ motion, denied Mincy‟s motion, and entered judgment in favor

of Appellees. Mincy timely appealed.2

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court‟s order granting summary judgment. See Giles v. Kearney, 

, 322 (3d Cir. 2009). Summary judgment is appropriate only when the record

“shows that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The moving party has

the burden of demonstrating that there is no genuine issue as to any material fact, and

summary judgment is to be entered if the evidence is such that a reasonable fact finder

could find only for the moving party.” Watson v. Eastman Kodak Co., 

, 854

(3d Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 

, 248 (1986)). We

may summarily affirm on any basis supported by the record. Murray v. Bledsoe, 

, 247 (3d Cir. 2011) (per curiam).

                                             III.

       Section 1983 provides private citizens with a means to redress violations of federal

law committed by state officials. See 42 U.S.C. § 1983. To establish a claim under §

1983, a plaintiff “must establish that she was deprived of a federal constitutional or


2
  Mincy filed a motion for reconsideration on March 19, 2012, which was not denied by
the District Court until August 30, 2012. Because Mincy filed his notice of appeal before
the District Court entered the August 30, 2012, the notice is timely and became effective
on that date. See Fed. R. App. P. 4(a)(4)(B)(i). However, because Mincy did not appeal
the District Court‟s order denying his motion for reconsideration, that order does not fall
within the scope of our jurisdiction. See Fed. R. App. P. 4(a)(4)(B)(ii).
                                              6
statutory right by a state actor.” Kach v. Hose, 

, 646 (3d Cir. 2009). To

sustain a retaliation claim under § 1983, an inmate must demonstrate that (1) he engaged

in constitutionally protected conduct; (2) he suffered adverse action; and (3) the

constitutionally protected conduct was “a substantial or motivating factor” for the adverse

response. See Carter v. McGrady, 

, 157-58 (3d Cir. 2002); see also Rauser

v. Horn, 

, 333 (3d Cir. 2001). With respect to the required causal link, if the

prisoner makes a prima facie showing that his constitutionally protected conduct was a

motivating factor in the decision to discipline, the defendant then has the burden of

showing that the same disciplinary action would have been taken even in the absence of

the protected activity. See 

A.     Retaliatory Misconduct Reports

       Mincy first alleges that Lieutenant Wetzel and Officers Murphy, Gower, and

Vance violated his First Amendment rights by issuing false and retaliatory misconduct

reports to “punish” Mincy for filing grievances and civil lawsuits. We agree with the

District Court that Mincy failed to establish a prima facie case of retaliation. Mincy was

charged with a number of offenses, including assault, threatening an employee, using

obscene language, and possession of contraband. The record indicates that the decisions


3
  In their motion for summary judgment, Appellees asserted the affirmative defense that
Mincy‟s claims contained in his amended second complaint were barred by the applicable
statute of limitations for § 1983 suits. In Pennsylvania, the applicable personal injury
statute of limitations is two years. See 42 Pa. Cons. Stat. § 5524(7); see also Kost v.
Kozakiewicz, 

, 190 (3d Cir. 1993). Although the District Court determined
that Mincy‟s second amended complaint was time-barred, it proceeded to consider the
merits of his retaliation claims. Likewise, we bypass a possibly meritorious statute of
limitations defense and consider the merits of Mincy‟s claims.
                                             7
of the hearing officer were sustained throughout the administrative appeal. Mincy‟s

unsupported assertions that the charges were fabricated to retaliate against his litigation

activities are insufficient to create genuine issues. See Quiroga v. Hasbro, Inc., 

, 500 (3d Cir. 1991) (noting that a party opposing summary judgment may not rely on

mere allegations, general denials, or vague statements). The evidence of record

concerning Mincy‟s guilt of these offenses shows that Appellees‟ action was reasonably

related to a legitimate penological interest and that Mincy would have been charged

regardless of his litigation activities. See 

; see also 

(affirming summary judgment in favor of defendants on retaliation claim

when “the quantum of evidence” concerning the prisoner‟s misconduct showed that he

would face disciplinary action regardless of his protected activity); Henderson v. Baird,

, 469 (8th Cir. 1994) (stating that a finding of “some evidence” in support of

a disciplinary determination “checkmates” a retaliation claim). Accordingly, the District

Court correctly granted summary judgment to Appellees on this claim.

B.     Retaliatory Theft/Destruction of Property

       Mincy‟s second claim asserts that Lieutenants Wetzel, Kershner, Kmieciak,

Brought, Bronsburg and Officers Hryciyna and Derfler intentionally took and destroyed

his new boots and sneakers in retaliation for his litigation activities. Mincy‟s litigation

activities qualify as protected conduct, see Milhouse v. Carlson, 

, 373-74

(3d Cir. 1981), and the loss of his property constitutes a sufficient adverse action.

       Although Mincy‟s allegations satisfy the first two elements of a prima facie

retaliation case, we agree that Mincy has failed to establish the necessary causal link. To

                                              8
establish liability under § 1983, each individual defendant „must have personal

involvement in the alleged wrongdoing.‟” Evancho v. Fisher, 

, 353 (3d Cir.

2005) (quoting Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988)). “Personal

involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence.” 

. These allegations must be made

with appropriate particularity. 

alleges that he spoke to both

Kershner and Kmieciak about his missing property, this is insufficient to establish

personal involvement or actual knowledge. Furthermore, although Meyers and Hryciyna

were present in the property room during Mincy‟s inventory of his property, the

inventory took place approximately sixteen months after the boots and sneakers

disappeared. While these four individuals appear to have been aware that Mincy was

missing property, there is no evidence that they were personally involved.

       Furthermore, the District Court is correct that an officer‟s review of, or failure to

investigate, an inmate‟s grievances generally does not satisfy the requisite personal

involvement. See 

-08 (holding that grievances filed with

governor‟s office of administration were insufficient to establish the governor‟s actual

knowledge of the conduct complained of). Mincy alleges that Brought and Derfler were

involved in the theft of his property; however, their involvement only relates to their

review of Mincy‟s grievances regarding his property. While Mincy‟s grievances made

them aware that Mincy was missing property, this awareness does not amount to the

requisite personal involvement.



                                              9
       Finally, Mincy has named Bronsburg and Wetzel in this claim; however, the

record contains no mention of either in the relevant sections of Mincy‟s second amended

complaint, his statement of material facts supporting his motion for partial summary

judgment, or his response in opposition to Appellees‟ motion. Unsupported allegations

are not sufficient when faced with a motion for summary judgment, see Connors v. Fawn

Mining Corp., 

, 489 (3d Cir. 1994). Accordingly, the District Court properly

granted summary judgment to Appellees on this claim.

C.     Retaliatory Destruction of Property

       In his third claim, Mincy alleges that Kmieciak, Meyers, and Hryciyna

intentionally destroyed his typewriter to retaliate against him for filing lawsuits and

grievances and to “frustrate” his litigation activities. No evidence in the record

demonstrates that any of these officers were personally involved in or had personal

knowledge of the damage to Mincy‟s typewriter. See 

. While

Meyers and Hryciyna were present in the property room when Mincy was packing his

property for his transfer to SCI Albion, nothing indicates that they had any responsibility

for the damage, and the evidence shows that Mincy himself packed the typewriter.

Accordingly, summary judgment was warranted for Appellees on this claim.

D.     Retaliatory Transfer

       In his fourth claim, Mincy alleges that Counselor Kornasky, Unit Manager

Williams, Lieutenant Gavin, Major Derfler, Deputy Superintendants Chmielewski and

Temperine, and Superintendant Klem retaliated against him for his filing of civil lawsuits

and grievances by having him transferred to SCI Albion, a correctional facility in the

                                             10
Western Region of Pennsylvania. While the filing of grievances and lawsuits is

constitutionally protected activity, see 

, a review of the

record reveals that Mincy requested a transfer and separation from certain inmates

because he feared that these inmates would retaliate against him because of testimony he

provided against a cell mate. While staff at SCI Mahanoy did recommend that Mincy be

transferred to the Western Region, sufficient uncontroverted evidence demonstrates that

this recommendation was based on security concerns because of Mincy‟s multiple

enemies in the Eastern Region and the associations the inmates he requested to be

separated from had with inmates in the Central Region. Accordingly, we agree that

Mincy failed to meet his burden of showing that his filing of grievances and lawsuits was

“a substantial or motivating factor” for his transfer, see 

, and

summary judgment was properly granted to Appellees as to this claim.

E.     Constitutional Tort

       In his last claim, Mincy alleges that all of the facts alleged in his previous four

counts, taken together, violate his constitutional rights. However, because we have

concluded that his rights were not violated in his first four claims, we agree with the

District Court that summary judgment for Appellees was warranted for this claim.

                                             IV.

       In sum, the District Court properly granted Appellees‟ motion for summary

judgment and denied Mincy‟s motion for partial judgment because Mincy failed to

establish a prima facie case of retaliation for all of his claims. For the foregoing reasons,



                                              11
no substantial question is presented and we will affirm the judgment of the District Court.

See 3d Cir. L.A.R 27.4; I.O.P. 10.6.




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