ALD-070                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2861
                                       ___________

                                  LYDELL SWINSON,
                                             Appellant

                                             v.

    BLAKELY, Correctional Officer; FLAIM, Internal Security; LIEUTENANT LOZAR,
     LT. of 2 til 10 shift officers; SUPERINTENDENT GRATERFORD SCI; VOTING
     MEMBERS, For transfer approvals; MAIL AND INMATE ACCOUNT OFFICES,
                                       Unknown Members
                          ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 2-14-cv-01871)
                       District Judge Honorable Harvey Bartle, III
                      ____________________________________

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
            or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    December 3, 2015

            Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                            (Opinion filed: December 8, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Pro se appellant Lydell Swinson (“Swinson”) appeals from the judgment of the

United States District Court for the Eastern District of Pennsylvania in his civil rights

case. As the appeal does not present a substantial question, we will summarily affirm the

decision of the District Court.

                                              I.

         Swinson is a state prisoner currently housed at SCI-Mahanoy and previously

housed at SCI-Graterford. While at SCI-Graterford, Swinson filed several grievances

against correctional officer Lizette Blakely (“Blakely”), which were referred to her

supervisor, Lieutenant John Lozar (“Lozar”). In one grievance, Swinson alleged that

Blakely was repeatedly searching him without justification and explicitly threatened to

refile a civil action against her.1 He stated that he had a “long mental health history and

her conduct can cause relapses due to my mental health conditions.” He also

acknowledged that prison policy allows inmates to be stopped at any time. Subsequently,

Blakely requested a “staff separation” from Swinson, arguing that given his criminal

history, his self-admitted issues with mental health, and a pattern of accusations and

threats, she was not safe near him. Lozar denied Swinson’s search grievance, stating that

all searches were recorded and that he could find no evidence that Blakely had searched

or was searching Swinson.




1
    Swinson previously filed a lawsuit against Blakely, but withdrew his case.

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      Swinson was then placed in solitary confinement. Captain Alfred Flaim (“Flaim”)

interviewed Swinson, who admitted that he was disoriented while he filed the grievance

alleging searches by Blakely and did not intend her any harm. Flaim investigated

Swinson’s history and psychiatric record, and decided not to release Swinson from

solitary confinement. He recommended that Blakely be separated from Swinson, and that

Swinson be transferred to a different prison. Flaim’s recommendations were accepted,

and Swinson was transferred.

      Swinson filed a complaint alleging that these prison officials placed him in solitary

confinement and then transferred him from SCI-Graterford in retaliation for filing his

grievances. He named Blakely, Lozar, Flaim, the Graterford superintendent,2 unknown

members of the “mail and inmate account offices,” and unknown “voting members for

transfer approvals” as defendants. Discovery closed on June 1, 2015, and the defendants

filed a motion for summary judgment. Swinson requested more time for discovery. The

District Court granted the defendants’ motion in July 2015 and denied Swinson’s request.

                                            II.

      The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District




2
 The superintendent was dismissed from the case because there was no indication that he
was personally involved. See Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988).

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Court’s order granting summary judgment. 3 See Giles v. Kearney, 

, 322

(3d Cir. 2009). A district court may grant summary judgment only when the record

“shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When making this analysis, a

district court must credit the evidence of the non-moving party, and draw all justifiable

inferences in the non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 

, 255 (1986). A mere “scintilla of evidence in support of the [non-moving party]’s

position will be insufficient” to create a genuine issue of fact. 

The non-

moving party “must show where in the record there exists a genuine dispute over a

material fact.” See Doe v. Abington Friends Sch., 

, 256 (3d Cir. 2007). The

non-moving party cannot rest on his complaint, but must point to affidavits, depositions,

interrogatory answers, and/or any admissions in establishing that there are material,

disputed facts. Celotex Corp. v. Catrett, 

, 324 (1986).

       The District Court correctly entered summary judgment on Swinson’s retaliation

claims because he did not point to evidence in the record to create a genuine dispute that

there was a causal link between his placement in restricted housing and transfer from

Graterford and his invocations of his due process rights and right to free speech. In order

to succeed in a retaliation claim, a plaintiff must establish three elements. First, he must

demonstrate that his conduct was constitutionally protected. Then, he must show


3
 We may summarily affirm a decision of the District Court if the appeal does not raise a
substantial issue. 3d Cir. LAR 27.4; I.O.P. 10.6.
                                              4
retaliatory action “‘sufficient to deter a person of ordinary firmness from exercising his

[constitutional] rights[.]’” Rauser v. Horn, 

, 333 (3d Cir. 2001) (quoting

Allah v. Seiverling, 

, 225 (3d Cir. 2000)). Finally, he must establish a

causal link between his constitutionally protected conduct and the adverse action taken

against him. 

prison context, the plaintiff has the “initial burden of proving that

his constitutionally protected conduct was ‘a substantial or motivating factor’ in the

decision to discipline him.” 

plaintiff meets this burden, it shifts to the

defendants to prove, by a preponderance of the evidence, that they would have taken the

same action absent the protected activity. 

prison may encroach on an

inmate’s constitutional rights, if “reasonably related to legitimate penological interests.”

Sharp v. Johnson, 

, 156 (3d Cir. 2012) (quoting Turner v. Safley, 

, 89 (1987)).

       Both Swinson and the defendants agreed that he engaged in constitutionally-

protected conduct when he filed his grievances. All parties also agreed that he suffered

an adverse action when he was placed in solitary confinement. However, the defendants

stated that they placed Swinson in restricted housing and transferred him because they

decided that he was a danger to others, not because he filed the grievances. The District

Court accorded this decision deference, and we can see no reason to disagree. See

. The defendants pointed to Swinson’s self-admitted history of

mental health issues, his murder conviction, and his contentious history with Blakely as

support for their actions. Swinson contended that he was a model prisoner and that he
                                               5
did not intend Blakely any harm. However, Swinson did not point to any evidence that

would create a genuine dispute of material fact regarding his potential to cause harm.

      For the reasons stated above, we will summarily affirm the District Court’s

decision. Accordingly, we deny Swinson’s requests for appointment of counsel. See

Tabron v. Grace, 

, 157-58 (3d Cir. 1993).




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