NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 09-3853
___________
MIGUEL JOSE GARCIA,
Appellant
v.
JANET KIMMELL; WILLIAM COLE; W. WOODS; CRAWFORD; R. GILKEY;
MICHAEL A. HARLOW; JEFFREY A. BEARD; THE PENNSYLVANIA
DEPARTMENT OF CORRECTIONS
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 08-CV-01236)
District Judge: Honorable Arthur J. Schwab
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 2010
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: May 26, 2010)
___________
OPINION
___________
PER CURIAM.
Miguel Jose Garcia appeals from an order of the United States District
Court for the Western District of Pennsylvania, which granted the defendants motion for

summary judgment with regard to Garcias civil rights complaint. We will affirm the
District Courts judgment in its entirety.
Miguel Jose Garcia filed in state court a civil rights complaint against
Pennsylvania correctional officers and employees at a Pennsylvania prison, SCI-Mercer,
where he was confined for some time. Garcias complaint contained these claims: Count
I, Retaliation and Discrimination (prison officials refused to consider him for outside job
clearance in retaliation for Garcia filing grievances); Count Two, Equal
Protection/Discrimination/Due Process (prison officials treated automotive students
differently than barbers and culinary students); Count Three, Garcia was denied state
soap, (an Eighth Amendment violation); Count Four, Denial of legal supplies; Count
Five Discrimination/Equal Protection/Destruction of Personal Property Claim; and Count
Six, which alleged violations of state law. The Defendants removed the action to federal
court. After some limited discovery, both sides filed summary judgment motions. The
District Court granted the defendants motion and denied Garcias motion, and Garcia
timely appealed.
Garcia pursues only three claims on appeal: a claim that the prisons
decisions to wait almost a year to consider him for his outside job clearance and to move
him to inferior housing were retaliatory; a claim that the prisons failure to transfer him to
another prison to allow him to take his automotive certification test violated equal
protection because culinary and barber students were transferred to take their tests; and

the prisons decision to deny his requests for state soap constituted cruel and unusual
punishment.
I.
We have jurisdiction over the appeal under 28 U.S.C. 1291 and exercise
plenary review over the District Courts decision to grant summary judgment. McGreevy
v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). A court reviewing a summary
judgment motion must evaluate the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that partys favor. Brewer v.
Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing
summary judgment must present more than just bare assertions, conclusory allegations
or suspicions to show the existence of a genuine issue. Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 594 (3d Cir. 2005).

II.1
To show that prison officials retaliated against a prisoner for exercising his
constitutional rights, the prisoner must plead three elements: 1) the conduct in which he
was engaged was constitutionally protected; 2) he suffered adverse action at the hands
of prison officials; and 3) his constitutionally protected conduct was a substantial or
motivating factor in the decision to take adverse action. Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001). Once he has made his prima facie case, the burden shifts to the
defendant to prove by a preponderance of the evidence that it would have made the same
decision absent the protected conduct for reasons reasonably related to penological
interest. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (internal quotation and
citation omitted).
Garcia claims that defendants denied him outside clearance for work and
moved him to inferior dormitory-type accommodations in retaliation for his filing

Before a prisoner can bring a civil rights claim challenging prison conditions, he
must exhaust administrative remedies. 42 U.S.C. 1997e(a); Spruill v. Gillis, 372 F.3d
218, 226-27 (3d Cir. 2004). Proper exhaustion in Pennsylvania requires completion of a
three-part procedure; initial review, appeal, and final review. Spruill, 372 F.3d at 232.
Failure to exhaust is an affirmative defense to be pleaded by the defendant. Jones v.
Bock, 549 U.S. 199 (2007); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Although
defendants argued in the District Court that Count Five of Garcias complaint was not
exhausted, it did not argue failure to exhaust as a defense to any of the claims at issue on
appeal here. Thus, although the record does not reflect that Garcia pursued all three
administrative levels for his retaliation and equal protection claims, we will consider them
on the merits, along with his exhausted Eighth Amendment claim.
4

grievances.2
The District Court found that Garcia engaged in constitutionally protected
activity by filing prison grievances. The Court did not decide whether the actions taken
against Garcia would constitute adverse action, 3 but decided that the claims failed
because defendants actions were taken for reasons reasonably related to a legitimate
penological interest. Dist. Ct. Op. at 15.
Garcia alleged in his complaint that his counselor, Defendant Kimmel,
needed to interview him so he could be cleared to work outside the prison in an auto shop.
Garcia was not happy with an initial meeting with Kimmel in January 2008, and he filed a
grievance alleging that she was not following prison policy. According to Garcia,
Kimmel thereafter refused to answer any of his request slips, and when he finally met
with her about two weeks later, she stated that because Garcia had filed a grievance
against her, she would not staff him until September, about eight months later. Garcia
filed another grievance, complaining of retaliation, and about two weeks later, he was
moved to an old, once condemned, dilapidated dorm style trailor [sic]. Complaint, Dkt.

The District Court construed Garcias complaint as tying all the claims to retaliation
(e.g., he was denied soap in retaliation for filing grievances, etc.), but the only claims that
Garcia ties to retaliation on appeal are the claim that he was not timely staffed,
(interviewed for outside clearance) and the claim that he was transferred to inferior
housing.
3

To constitute adverse action for a retaliation claim, the action must be sufficient
to deter a person of ordinary firmness from exercising his [constitutional] rights. See
Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
5

#1-2, at 42.
Taking Garcias allegations as true, and construing the evidence in the light
most favorable to him, we find that Garcia presented evidence indicating that his filing of
grievances was a substantial or motivating factor in the decision to delay his staffing
for outside clearance. However, we agree with the District Court that defendant
Kimmels statement that she needed to get to know him as an inmate to see how he would
adjust before granting him clearance is related to a legitimate penological interest.4 The
District Court thus properly granted summary judgment on this claim. See Rauser, 241
F.3d at 334 (even if a prisoner demonstrates that his exercise of a constitutional right
was a substantial or motivating factor in the challenged decision, the prison officials may
still prevail by proving that they would have made the same decision absent the protected
conduct for reasons reasonably related to a legitimate penological interest).
As to his housing transfer, it is not clear that Garcia established any link
between his protected activity (filing grievances), and the allegedly adverse action.5

For the first time on appeal, Garcia attempts to refute the defendants reason for
delaying his clearance interview by alleging that he was employed in an outside auto shop
as a car washer in May 2008. He thus suggests that the defendants statement that they
needed to get to know him must have been pretextual. As this Court cannot consider
material on appeal that is outside of the district court record, we decline to consider the
argument. In re Capital Cities/ABC, Inc.'s Application for Access to Sealed Transcripts,
913 F.2d 89, 96 (3d Cir. 1990).
5

Garcias bald assertion that Defendant Cole, the Unit Manager who apparently
ordered the transfer, conspired with Defendant Kimmel and with Defendant Crawford
(Unit Block Officer), need not be credited. Podobnik, 409 F.3d at 594.
6

Further, the defendants noted that Garcias Z-Code status, which allowed him to have a
single cell due to his mental health issues, had been removed in August 2007 before he
was transferred to SCI-Mercer, at least in part because of his refusal to meet with the
Psychology Department regarding his Z-Code status. Exhibit 10 to Defendants summary
judgment motion, dkt. #18-5, at 4 of 20. It was thus permissible under prison policy for
SCI-Mercer to place Garcia in dormitory-style housing. In response to his grievance,
Deputy Ruffo explained that [h]ousing assignments are based on various factors (i.e.:
security, medical and programming needs), and that when those factors were considered
in Garcias case, they supported his placement in dormitory-style housing. Exhibit 11 to
Defendants summary judgment motion, dkt. #18-5, at 7 of 20. Garcia did not meet his
burden of showing that his housing transfer was retaliatory.
III.
We likewise hold that the District Court properly granted summary
judgment on Garcias equal protection claims. Garcia obtained an incentive-based
transfer to SCI- Mercer, and apparently believed that this transfer would help him
advance in his automotive training After being transferred to Mercer, Garcia learned that
an automotive certification he possessed was about to expire. Mercer did not offer the
testing he needed. He asked for a transfer in order to take a test to be re-certified, but the
transfer was denied because he was not eligible so soon for another incentive-based
transfer. His Equal Protection claim stated that barber and culinary students were allowed

such transfers while he was not, but he did not provide any evidence that barbers and
culinary students were allowed more than one incentive-based transfer within a year.
Because prisoners are not a suspect class, prison officials may treat inmates differently so
long as decisions are rationally related to a legitimate state interest. See City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985). The prisons requirement that
Garcia wait a year before another incentive-based transfer was rationally related to
legitimate state interests. Further, Garcia did not show that prison officials acted with any
discriminatory purpose in denying him a transfer. City of Cuyahoga Falls, Ohio v.
Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003).
IV.
As to Garcias Eighth Amendment claim, prison conditions may violate the
Eighth Amendment proscription against cruel and unusual punishment where inmates are
deprived of the minimal civilized measure of lifes necessities. Rhodes v. Chapman, 452
U.S. 337, 347 (1981). Courts have held that those minimal necessities include provision
for basic hygiene. See e.g., Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996)
(refusal to provide toothpaste, leading to gums bleeding and receding and tooth decay
states claim for Eighth Amendment claim); Young v. Quinlan, 960 F.2d 351, 363 (3d
Cir.1992) (requiring prisoner to request permission to wash hands, receive toilet paper, or
drink water states an Eighth Amendment claim). The deprivation alleged must also be
sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Garcia claims that inmates were all supposed to get personal hygiene
soap, also called state soap, free of charge, but that on April 25, 2008, his unit
manager, Defendant Woods, stopped distribution of soap to inmates on K-block, and also
stated that indigent inmates would only get one bar of state soap per month. Garcia sent
an inmate request to staff on that same date, claiming that he was indigent and asking for
state soap, but he was denied soap. Having insufficient funds to purchase soap, he then
had to use shampoo for 39 days to clean his skin. He developed skin irritations, rash and
eczema on his hands, feet, elbows, knees, chest and back and required medical treatment
on five different occasions, and required three different creams and ointments and three
different oral medications for treatment. Complaint, Dkt. #1-2, at 18-20; Garcias Motion
for Summary Judgment, Dkt. #23-8, Exh. G.
Garcia filed a grievance concerning the denial of soap. The grievance and
initial response by Deputy Ruffo are not in the record, but Garcias complaint states that
he filed the grievance on May 1, 2008. The record does contain a short decision on
appeal stating that the grievance and Deputy Ruffos response dated May 8, 2008 were
reviewed, and then states in pertinent part:
Deputy Ruffos response was not inaccurate or inept. We will
provide soap to inmates who are classified as indigent. I
found that no one discriminated against nor mistreated you in
any way.
Defendants summary judgment motion, Dkt. #18-5, p. 11, Exh. 12. The same exhibit
also contains a decision from the Secretarys Office of Inmate Grievances and Appeals,
9

noting that the record reflects that Deputy Ruffo reviewed your account. Id. at p. 13.
The decision then notes that an inmate is deemed indigent if the combined balance of
his/her facility account and any other accounts are [sic] $10.00 or less at the time [sic]
during the 30 days preceding the date on which the inmate submits a request to a person
designated by the Facility Manager. The decision states that Garcia was not indigent
when [he] filed the grievance. Id.
The Office of Inmate Grievances and Appeals decision quoted above
misstates the definition of Indigent Inmate, which is set forth in DC-ADM 803
(Inmate Mail and Incoming Publications Procedures Manual). That definition, as the
District Court correctly noted, states that an inmate is indigent if the combined balances
of his/her facility account and any other accounts are $10.00 or less at all times during the
30 days preceding the date on which the inmate submits a request . . . . (Dkt. #18-2, p.
27) (emphasis added).
Garcia requested state soap free of charge due to his claimed indigent status
on April 25, 2008. However, Garcias inmate account balance statement demonstrably
exceeded $10.00 on a number of occasions during the 30 days preceding April 25, 2008.
Accordingly, Garcia was not indigent and was free to purchase a bar of soap if he so
chose. The District Court did not err in concluding that Defendants based their decision
denying Garcia free state soap on legitimate penological budget concerns nor in
granting judgment to Defendants as a matter of law on this issue.

10

For the foregoing reasons, the District Courts judgment will be affirmed.

11