BLD-173                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-3489
                                     ___________

                           CHARLES THOMAS MONROE,
                                         Appellant

                                           v.

                                 PERRY PHELPS;
                               MICHAEL BRYAN;
                              RAYMOND HANNUM
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                           (D.C. Civil No. 1:09-cv-01004)
                     District Judge: Honorable Sue L. Robinson
                     ____________________________________

        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
                                   March 28, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: April 8, 2013)
                                      _________

                                       OPINION
                                       _________
PER CURIAM

      Pro Se Appellant Charles Thomas Monroe, an inmate at the James T. Vaughn

Correctional Center in Smyrna, Delaware, appeals from an order of the United States

District Court for the District of Delaware denying his motions for appointment of
counsel and summary judgment and granting Appellee’s motion for summary judgment,

in his civil rights action brought pursuant to 42 U.S.C. § 1983. Because this appeal does

not present a substantial question, we will summarily affirm. See 3d Cir. L.A.R 27.4;

I.O.P. 10.6.

                                            I.

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

for our discussion. Monroe brought claims for excessive force and retaliation against

Sergeant Michael Bryan for an incident that occurred on January 7, 2008. 1 Monroe

claimed that Bryan grabbed him from behind, placed him in a choke hold and slammed

him to the floor, injuring his back and neck. Bryan prepared an incident report of the

event. At the time, Monroe was housed in the V building, which mainly houses inmates

in drug treatment programs. In his incident report, Bryan states that he saw Monroe

make contact with another inmate and saw the inmate hand Monroe a small, white object.

Monroe took the object and went into a telephone booth. Bryan went up to Monroe and

asked him for the object that he had received from the inmate. Monroe refused and put


1
  Defendants Perry Phelps and Raymond Hannum were dismissed from the case by
orders entered May 3, 2010, and May 19, 2011. Phelps was dismissed because the claims
against him were solely based on the theory of respondeat superior and liability in a §
1983 action must be predicated on personal involvement, not on the basis of respondeat
superior. See Polk County v. Dodson, 

, 325 (1981). Hannum was dismissed
because Monroe failed to exhaust his administrative remedies before filing the claims
against Hannum. See Booth v. Churner, 

, 741 (2001) (the Prison Litigation
Reform Act of 1996 requires that a prisoner pursue all avenues of relief available within
the prison’s grievance system before bringing a federal civil rights action concerning
prison conditions). We agree with these District Court’s rulings.
                                            2
the white object in his mouth and began to chew. Bryan believed the item was drugs, so

he placed Monroe in a choke hold, brought him to the floor on his knees, and ordered him

to spit out what was in his mouth. Monroe spit out a small white piece of paper.

       Correctional officer Sandra Werda witnessed the incident and filled out an

incident report corroborating Bryan’s report. She and Bryan handcuffed Monroe after he

was on the floor. Correctional officer Hannum assisted in restraining Monroe and helped

Monroe to his feet. Monroe was taken to the infirmary by wheelchair and he was given

three Tylenol because he complained of lower back pain. Monroe’s medical records

indicate that he complained of lower back pain on at least two instances prior to the

January 7, 2008 incident. As a result of the incident, Monroe was charged with, and

found guilty of, disorderly or threatening behavior, giving false alarm, abuse of

privileges, failing to obey an order, lying, being off limits, and possession of non-

dangerous contraband.

       The parties filed cross-motions for summary judgment and Monroe filed a motion

for appointment of counsel. The District Court granted Bryan’s motion for summary

judgment and denied Monroe’s motion for summary judgment, because, among other

reasons, Monroe did not meet the standards for an Eighth Amendment excessive force

claim or a retaliation claim. The District Court denied Monroe’s motion for appointment

of counsel. 2 Monroe timely filed this appeal.


2
 The District Court also inquired, sua sponte, whether Monroe was competent to litigate
his action under Fed.R.Civ.P. 17(c)(2). We conclude that the District Court did not abuse
                                              3
                                             II.

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

a district court’s order granting or denying summary judgment, applying the same

standard as the district court. See Tri–M Grp., LLC v. Sharp, 

, 415 (3d Cir.

2011). We will affirm only if “drawing all reasonable inferences in favor of the

nonmoving party, there is no genuine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law.” 

and burdens

apply on cross-motions for summary judgment. Appelmans v. City of Phila., 

, 216 (3d Cir. 1987). We review the denial of a request for counsel for abuse of

discretion. See Tabron v. Grace, 

, 158 (3d Cir. 1993). We may summarily

affirm the District Court’s decision if the appeal presents no substantial question. See

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

                                            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

statutory right by a state actor.” Kach v. Hose, 

, 646 (3d Cir. 2009). In this

instance, Monroe argues that Bryan used excessive force during the January 7, 2008



its discretion in declining to appoint a guardian or counsel to represent Monroe’s interests
in this instance. See Gardner ex rel. Gardner v. Parson, 

, 140 (3d Cir. 1989)
(we review for abuse of discretion a district court’s decision to appoint a guardian ad
litem under Rule 17(c)).
                                             4
incident in violation of the Eighth Amendment, which prohibits prison officials from

unnecessarily and wantonly inflicting pain in a manner that offends contemporary

standards of decency. See Hudson v. McMillian, 

, 8 (1992). When reviewing

Eighth Amendment excessive-force claims, we must determine whether the “force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm .” 

the force applied was excessive requires

the examination of several factors including: (1) the need for force, (2) the relationship

between that need and the amount of force used, (3) the extent of the injury, (4) the extent

of the threat to safety “as reasonably perceived by responsible officials,” and (5) “any

efforts made to temper the severity of a forceful response.” Brooks v. Kyler, 

, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 

, 321 (1986). Whether

the force was excessive depends on the “extent of the force” and the surrounding

circumstances, not upon the “resulting injuries.” Smith v. Mensinger, 

, 648

(3d Cir. 2002).

       We agree with the District Court that there is nothing in the record to suggest that

Bryan acted maliciously or sadistically to cause harm to Monroe. Monroe acknowledges

that he did not give Bryan the white object when he was asked to do so. In light of the

fact that Bryan believed the white object to be drugs and the fact that the incident

occurred in a building that is used primarily for drug rehabilitation programs, Bryan acted

reasonably. Moreover, Monroe did not suffer serious injuries, and his complaint of back

pain was one that he had prior to the incident. While the absence of serious injury is not
                                              5
dispositive, it does indicate that the force the guards used was itself limited. See Wilkins

v. Gaddy, 

, 1178 (2010). In these circumstances, therefore, the amount

of force the Bryan used was reasonable as a matter of law. Thus, we conclude that

Monroe does not have a valid Eighth Amendment excessive force claim and the District

Court properly granted Bryan’s motion for summary judgment and properly denied

Monroe’s motion for summary judgment.

       Monroe also alleges a retaliation claim on the basis that he can prove that he is not

guilty of the infractions resulting from the January 7, 2008 incident and that Bryan

fabricated the allegations in retaliation for Monroe seeking legal recourse as a result of

the incident. A prisoner litigating a retaliation claim must show that the conduct

provoking the alleged retaliation was constitutionally protected, that he suffered some

“adverse action” at the hands of the prison officials “sufficient to deter a person of

ordinary firmness from exercising his [constitutional] rights,” and that the

constitutionally protected conduct was a substantial motivating factor in Defendants’

conduct. Rauser v. Horn, 

, 333 (3d Cir. 2001) (alteration in original)

(internal quotation marks omitted). If a plaintiff can establish a prima facie case of

retaliation the burden shifts to the defendant “to demonstrate that even without the

impetus to retaliate he would have taken the action complained of.” Hartman v. Moore,

, 260 (2006).

       We agree with the District Court that the record does not support a finding that

Monroe was subject to adverse actions of the type that would deter a prisoner of ordinary
                                              6
firmness from exercising his constitutional rights. As the District Court pointed out,

Monroe filed several grievances after the January 7, 2008 incident, thus showing that he

was not deterred from exercising his First Amendment rights. Accordingly, we conclude

that the District Court properly granted summary judgment in favor of Bryan for

Monroe’s retaliation claim.

                                              IV.

       Regarding Monroe’s motion for appointment of counsel, in Tabron v. Grace, 

(3d Cir. 1993), we articulated factors relevant to determine whether to appoint

counsel for indigent civil litigants. As a threshold matter, the indigent plaintiff’s case

must have some arguable merit in fact and law. 

so, the court should then

consider a number of additional factors including: (1) the plaintiff’s ability to present his

or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which

factual investigation will be necessary and the ability of the plaintiff to pursue

investigation; (4) the plaintiff’s capacity to retain counsel on his or her behalf; (5) the

extent to which a case is likely to turn on credibility determinations; and (6) whether the

case will require testimony from expert witnesses. 

agree with the District Court that the factors do not weigh in favor of

representation by counsel. The case is not so factually or legally complex that appointing

an attorney was warranted. Moreover, the filings in the case demonstrate that Monroe is

able to clearly articulate his claims and represent himself. Thus, we conclude that the


                                               7
District Court did not abuse its discretion in denying Monroe’s motion for appointment of

counsel.

                                            V.

       For the foregoing reasons, 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. 3




3
 Because we find that Monroe has failed to assert valid Eighth Amendment excessive
force and retaliation claims, there is no need to address whether Bryan is entitled to
summary judgment on qualified immunity or Eleventh Amendment grounds.
                                             8