BLD-018                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3534
                                       ___________

                                     JAMES JONES,
                                              Appellant

                                             v.

                 KENNETH DAVIDSON, Correctional Officer, “C.O.”;
                    WENDY SHAYLOR, Grievance Coordinator;
                    M. WENEROWICZ, Superintendent, “Et Al”
                    ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (E.D. Pa. No. 2-14-cv-03099)
                          District Judge: James Knoll Gardner
                      ____________________________________

       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
                                  October 20, 2016

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

                               (Filed: November 15, 2016)
                                        _________

                                        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.
       James Jones appeals from the judgment of the United States District Court for the

Eastern District of Pennsylvania in his civil rights case. We will summarily affirm.

       In May 2014, Jones, an inmate at SCI- Graterford, filed a civil rights complaint

pursuant to 42 U.S.C. § 1983, claiming Eighth and Fourteenth Amendment violations for

retaliation and for failing to take action regarding grievances and appeals he had filed

concerning a false misconduct report. Jones alleges that he and Corrections Officer (CO)

Kenneth Davidson engaged in a verbal altercation on October 22, 2011, following which

Jones filed a grievance against CO Davidson. Approximately one week later, CO

Davidson charged plaintiff with misconduct for sexual contact with another inmate.

According to Jones, CO Davidson did so in retaliation for the grievance Jones filed.

Jones was found guilty of the charge and pursued an appeal through the prison system,

which was ultimately unsuccessful. Jones named as defendants CO Davidson; Wendy

Shaylor, Graterford Grievance Coordinator; and M. Wenerowicz, Graterford

Superintendent.

       In July 2014, Shaylor and Wenerowicz filed a motion to dismiss Jones’ complaint.

In October 2014, Jones filed a motion for default judgment against CO Davidson for

failure to file a responsive pleading to Jones’ complaint. In June 2015, CO Davidson

filed a notice of intent to file a response nunc pro tunc, along with a motion to dismiss

Jones’ complaint. Jones’ motion for default judgment was subsequently denied. By

order entered on November 25, 2015, the District Court granted Shaylor’s and

Wenerowicz’s motion to dismiss under the doctrine of sovereign immunity, without
                                             2
prejudice to allow Jones to amend his complaint to specify how Shaylor and Wenerowicz

were personally involved in the alleged violations of Jones’ constitutional rights. The

District Court also dismissed Jones’ Eighth Amendment and Due Process claims against

all defendants but denied CO Davidson’s motion to dismiss as to Jones’ First

Amendment claim.1

             In February 2016, CO Davidson filed a motion for judgment on the pleadings,

which was subsequently denied in April 2016. In June 2016, CO Davidson filed a

motion for summary judgment. On August 10, 2016, Jones filed a motion to file an

amended complaint. By order that same day, the District Court granted CO Davidson’s

motion for summary judgment. On August 12, 2016, the District Court dismissed Jones’

motion to file an amended complaint as moot, noting that summary judgment had been

granted for CO Davidson and that it would be unfair to allow Jones to amend his

pleadings months after discovery had closed.

           Jones appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Jones

has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this

appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We may summarily

affirm under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks substantial merit.

                                                           I.



1
    Although Jones’ complaint does not explicitly bring a claim under the First
                                                              Amendment, the District
Court determined after a liberal reading of Jones’ complaint that CO Davidson’s alleged
retaliation against Jones for filing a grievance implicating Jones’ First Amendment rights.
                                               3
       We exercise plenary review of the District Court's order dismissing Jones’

complaint in part under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. See Allen ex rel. Martin v. LaSalle Bank, N.A., 

, 367 (3d Cir. 2011).

In reviewing the dismissal under Rule 12(b)(6), “we accept all factual allegations as true

[and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen.

Hosp. v. Amgen Inc., 

, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings,

Ltd., 

, 374 n.7 (3d Cir. 2002)). A court may grant a motion to dismiss under

Rule 12(b)(6) “only if, accepting all well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the plaintiff, [it] finds that [the] plaintiff's

claims lack facial plausibility.” 

Atl. Corp. v. Twombly, 

,

555–56 (2007)). Pro se pleadings, “however inartfully pleaded,” must be held to “less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 

, 520 (1972). However, “pro se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 

, 245 (3d

Cir. 2013).

       We agree with the District Court’s analysis and conclude that the claims against

Shaylor and Wenerowicz in their official capacities were properly dismissed under the

doctrine of sovereign immunity. The Eleventh Amendment bars suits in federal court by

private parties against states, state agencies, and state officials in their official capacities,

absent consent by the state. Idaho v. Coeur d’Alene Tribe of Idaho, 

, 267-70

(1997). While a state may lose its immunity by Congressional abrogation or by waiver,
                                                4
see Lavia v. Pa. Dep’t of Corr., 

, 195 (3d Cir. 2000), Congress did not

abrogate states’ sovereign immunity when it enacted 42 U.S.C. § 1983, see Will v. Mich.

Dep’t of State Police, 

, 66 (1989). Moreover, we have previously noted that

the Pennsylvania legislature has expressly declined to waive its sovereign immunity by

statute. See 

; see also 42 Pa. Cons. Stat. Ann. § 8521(b). To the

extent that Shaylor and Wenerowicz were sued in their official capacities, they are

immune from suit.

       We further agree with the District Court’s conclusion that Jones failed to plead

sufficient facts to establish liability for Shaylor and Wenerowicz in their individual

capacities. Liability under § 1983 may not be based solely on the doctrine of respondeat

superior. See Evancho v. Fisher, 

, 353 (3d Cir. 2005). Instead, the plaintiff

must show that the official’s conduct caused the deprivation of a federally protected right.

See Kentucky v. Graham, 

, 166 (1985). More particularly, the plaintiff must

allege that the defendant was personally involved in the deprivation. See Rode v.

Dellarciprete, 

, 1207 (3d Cir. 1988). Here, Jones failed to allege any

personal involvement of Shaylor or Wenerowicz other than by virtue of their supervisory

positions.

                                             II.




                                             5
       Jones’ Due Process claims against all defendants stem from the disciplinary

consequences2 of the allegedly retaliatory, fabricated misconduct charge. Jones also

alleges, inter alia, that Shaylor and Wenerowicz failed to sufficiently investigate his

grievances, and he was not permitted to present witnesses at his misconduct hearing in

violation of his Due Process rights. A prisoner has a right to procedural due process

when he is deprived of a legally cognizable liberty interest, which occurs when the prison

“imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 

, 484 (1995). However,

“discipline in segregated confinement [does] not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty interest” under the

Fourteenth Amendment. 

see also Smith v. Mensinger, 

, 653 (3d

Cir. 2002) (holding seven months of disciplinary confinement did not implicate liberty

interest); Torres v. Fauver, 

, 151–52 (3d Cir. 2002) (holding disciplinary

detention for fifteen days and administrative segregation for 120 days did not implicate

liberty interest); Griffin v. Vaughn, 

, 706 (3d Cir. 1997) (holding

administrative detention for fifteen months did not implicate liberty interest).

Accordingly, the procedures to which he is entitled under Wolff do not apply. See Wolff

v. McDonnell, 

, 563-67 (1974) (holding where inmate may be deprived of


2
  Specifically, Jones claims that, as a result of the misconduct charge, he was placed in
the Restricted Housing Unit (RHU) for thirty days, designated a predator, ostracized and
stigmatized, and assigned a higher security status, which affects his housing, work
eligibility, and school and program consideration.
                                                6
protected liberty interest, he is entitled to: (1) advance written notice of disciplinary

charges; (2) the opportunity, when consistent with prison safety and penological goals, to

call witnesses and present evidence; and (3) a written statement by the factfinder of the

evidence relied on and reasons for the disciplinary action).3

                                              III.

       We further conclude that summary judgment was proper with regard to Jones’

retaliation claim against CO Davidson. Summary judgment is appropriate “if the movant

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). The moving party “bears the initial

responsibility of informing the district court of the basis for its motion, and identifying

those portions” of the record which demonstrate the absence of a genuine dispute of

material fact. Celotex Corp. v. Catrett, 

, 323 (1986). If the moving party

meets its burden, the nonmoving party then must present specific facts that show there is

a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2); Anderson v. Liberty Lobby,

Inc., 

, 248 (1986). A court should grant summary judgment where the non-

movant’s evidence is merely colorable or not significantly probative, Anderson, 

  Jones’ Eighth Amendment claim against CO Davidson is equally without merit and was
appropriately dismissed by the District Court. Where conditions are not “cruel and
unusual” but merely “restrictive and even harsh,” they do not violate the Eighth
Amendment but rather “are part of the penalty that criminal offenders pay for their
offenses against society.” Rhodes v. Chapman, 

, 347 (1981). Placing an
inmate in restricted housing does not violate the Eighth Amendment “as long as the
conditions of confinement are not foul, inhuman or totally without penological
                                             7
at 249-50, because “[w]here the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party, there is no ‘genuine issue for trial,’” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 

, 587 (1986) (citation omitted).

       To establish a claim of retaliation, a prisoner must show: (1) that he was engaged

in a constitutionally protected activity; (2) that he “suffered some ‘adverse action’ at the

hands of the prison officials”; and (3) that the protected activity was “a substantial or

motivating factor” in the prison officials’ decision to take the adverse action. Rauser v.

Horn, 

, 333-34 (3d Cir. 2001). The burden then shifts to the prison officials

to prove “that they would have made the same decision absent the protected conduct for

reasons reasonably related to a legitimate penological interest.” 

       Here, as the District Court aptly concluded, Jones satisfied the first two prongs of

a prima facie First Amendment retaliation claim by: (1) filing a grievance; and (2)

alleging that, as a result of the fabricated misconduct charge by CO Davidson, he was

designated a predator and a homosexual; given a higher security status, which negatively

affected his housing, work eligibility, school and program considerations; and ostracized,

see Allah v. Seiverling, 

, 225-26 (3d Cir. 2000). With regard to the third

and most contested factor, we agree with the District Court’s conclusion that Jones’

proclivity for sexual misconduct prior to his incarceration and history of infractions4 after


justification.” See Young v. Quinlan, 

, 364 (3d Cir. 1992).
4
  CO Davidson provided evidence that Jones is currently incarcerated for a variety of
criminal offenses, including rape and involuntary deviate sexual intercourse. Jones’
prison disciplinary record also lists thirty-six charges over seventeen years, eighteen of
                                                8
he arrived at Graterford was more than sufficient to show that his placement in the RHU

served a legitimate penological interest and would have occurred regardless of any

retaliatory motive. See 

. Jones’ retaliatory discipline claim fails

because there is “some evidence” supporting the guilty finding for the misconduct charge

brought against Jones after he filed his grievance against CO Davidson. See Henderson

v. Baird, 

, 469 (8th Cir. 1994).

       Moreover, Jones’ own account of the incident partially supports defendant’s

version of events because he does not deny that another inmate was in his cell, that he

disrobed, and that a curtain was restricting the view of his cell, which he explained to CO

Davidson “may have looked suspicious, but nothing sexual occurred.” Jones has

provided some countervailing evidence in support of his allegations, including CO

Davidson’s subsequent criminal history for tax fraud, which is relevant to his credibility,

and the affidavits of fellow inmates. However, we agree with the District Court’s

determination that the affidavits of the other inmates support only Jones’ allegations

regarding his verbal altercation with CO Davidson and not his innocence of the

misconduct charge. After considering the evidence of record, a reasonable finder of fact

would have to conclude that CO Davidson would have made the same decision out of

legitimate penological interests regardless of any retaliatory motive. See 

. Thus, summary judgment was appropriate as to this claim.


which he was found guilty. In another nine instances, he was not exonerated, although
the charges were reduced.
                                           9
                                             IV.

       Because the appeal does not present a substantial question, we will summarily

affirm the judgment of the District Court.




                                             10