DLD-118

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2121
___________
RONALD BANKS,
Appellant
v.

GERALD L. ROZUM, Superintendent; DANIEL GEHLMANN, Deputy Supt. for

Facilities Mgmt.; BARRY GRUBB, Major; MELLISA HAINESWORTH, Major of Unit
Mgmt.; LT. STEVE SIMOSKO, Captain; ROBERT SNYDER, Captain; ROBERT
BAKOS, Lieutenant; EDWARD MULLIGAN, Unit Manager; KATHY BELL, Unit
Manager; RANDY J. PRITTS, Correctional Officer; RANDY BARKMAN, Sergeant;
ED CWIK, Employment Coordinator; R.D. HARKCOM, Correctional Officer; W.F.
KALASKY, Correctional Officer; MICHAEL COLLEMACINE, Captain; JOSEPH
DUPONT, Hearing Examiner
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 3-14-cv-00027)
District Judge: Honorable Joy Flowers Conti
____________________________________
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
January 22, 2016
Before: CHAGARES, GREENAWAY, JR., and SLOVITER, Circuit Judges
(Opinion filed: February 17, 2016)

_________
OPINION*
_________
PER CURIAM
Ronald Banks, proceeding pro se and in forma pauperis, appeals from the District
Courts order dismissing his complaint for the failure to state a claim. Because the appeal
presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4;
I.O.P. 10.6.
I.
As we write primarily for the parties, who are familiar with this case, the
following summary suffices. Banks prolix and repetitive complaint contains 397
paragraphs and 139 exhibits, which Banks incorporated into the complaint. The
complaint alleged that the defendant employees at SCI-Somerset, where Banks was
previously confined, committed multiple violations of his constitutional rights.
In brief: first, Banks alleged that searches of his cell deprived him of his property
(a confiscated radio) without due process, denied him access to the courts (through the
disruption and confiscation of legal papers), and amounted to unlawful retaliation for
constitutionally protected litigation activity. Second, Banks alleged that two pat-down
searches were sexual assaults that amounted to cruel and unusual punishment. Third,

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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Banks complained of two job-related matters: the alleged exposure to bodily fluids while
cleaning showers, and the loss of his job when he was transferred to a different cell block.
Fourth, Banks alleged that he was denied basic personal hygiene items, which amounted
to a deprivation of lifes minimal necessities. On top of these factual predicates, Banks
alleged that the defendants were together engaged in a conspiracy to commit these
constitutional violations. Finally, Banks alleged that various defendants were liable as
supervisors for failing to prevent these acts.
The defendants moved to dismiss the complaint for the failure to state a claim
upon which relief could be granted. Banks filed a 28-page response brief with eight
exhibits. The Magistrate Judge then filed a Report and Recommendation that
recommended dismissing Banks complaint with prejudice. Banks filed 87 pages of
objections. The District Court adopted the Report and Recommendation together with its
own supplemental memorandum opinion as the opinion of the court, and dismissed
Banks complaint with prejudice after concluding that further amendment would be
futile. This appeal followed.
II.
Our review of the District Courts dismissal order is plenary. Huertas v. Galaxy
Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011). On issues for which a party failed to file
timely objections to the Magistrate Judges report and which the District Court did not
subject to de novo review, we instead review the District Courts decision for plain error.
Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011). Under that standard, we reverse
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only if there is an error that affects a partys substantial rights in a way that impacts the
fairness, integrity, or public reputation of judicial proceedings. Nara v. Frank, 488 F.3d
187, 197 (3d Cir. 2007).
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting and citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 570 (2007)). Determining whether a complaint states a
plausible claim to relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. Id. at 679.
We may summarily affirm a District Courts order if the appeal presents no
substantial question, see 3d Cir. L.A.R. 27.4; I.O.P. 10.6, and we may rely on any ground
that the record supports, see Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).
III.
A pro se plaintiffs pleadings are liberally construed. See Dluhos v. Strasberg, 321
F.3d 365, 369 (3d Cir. 2003). But even under that relaxed standard, there is no
substantial question that Banks complaint failed to state a claim largely for the reasons
explained by the District Court and the Magistrate Judge. See Fantone v. Latini, 780
F.3d 184, 193 (3d Cir. 2015) (holding that a pro se complaint must still meet Twombly
and Iqbals plausibility standard).
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A.
Banks failed to state any constitutional claim concerning the searches of his cell
and any property that was allegedly confiscated or damaged in those searches. The facts
that Banks pleaded, including the facts in the grievance forms that he attached as exhibits
to his complaint, state that adequate state post-deprivation remedies were available to
him. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Tillman v. Lebanon Cty. Corr.
Facility, 221 F.3d 410, 422 (3d Cir. 2000). Relatedly, no due process violation arose
from the misconduct charge that Banks received after prison officials said he had
tampered with his radio, even though Banks alleges that the charge was based on false
information. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) ([S]o long as
certain procedural requirements are satisfied, mere allegations of falsified evidence or
misconduct reports, without more, are not enough to state a due process claim.).
That said, under some circumstances a false misconduct report can violate an
inmates First Amendment rights where it is in retaliation for an inmates resort to legal
process. Id. at 653. Such circumstances were not pleaded in Banks complaint. To
allege retaliation, the inmate must plead (1) constitutionally protected conduct, (2) an
adverse action by prison officials sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights, and (3) a causal link between the exercise of his
constitutional rights and the adverse action taken against him. Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003) (internal quotation and citation omitted). Here, the alleged
actions that Banks pleaded he endured were not sufficiently adverse to state a claim. See
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Brightwell, 637 F.3d at 194.1

Furthermore, those searches of Banks cell, and the alleged disruption and partial
confiscation of Banks legal materials that resulted therefrom, fare no better as support
for a potential First Amendment access-to-the-courts claim. Banks complaint fails to
plead sufficient facts to allege the actual injury element of such a claim. See Peterkin
v. Jeffes, 855 F.2d 1021, 1040 (3d Cir. 1988).
B.
Turning to the two pat-down searches, we also conclude that Banks allegations
fail to state a constitutional claim. A corrections officers intentional contact with an
inmates genitalia or other intimate area, which serves no penological purpose and is
undertaken with the intent to gratify the officers sexual desire or humiliate the inmate,
violates the Eighth Amendment. Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015).
[A] single incident of sexual abuse, if sufficiently severe or serious, may violate an
inmates Eighth Amendment rights no less than repetitive abusive conduct. Id. Here,
the scope of the searches that Banks describes in his complaint, and as further referenced
in the grievance materials that Banks included, did not go beyond the scope needed to
support the legitimate penological purpose of prison security or constitute a sexual

Also, Banks pleadings effectively allege that the prison officials would have
eventually searched Banks cell and confiscated Banks radioregardless of any
retaliatory motivebecause the grievance materials that Banks incorporated into his
complaint state a factual basis for the radio-tampering charge. See Carter v. McGrady,
292 F.3d 152, 159 (3d Cir. 2002).
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assault. Cf. id. at 258-59 (reversing dismissal for failure to state a claim when the
manner, timing, and stated reason for a search all indicated it was pretext for a desire for
sexual gratification or for humiliation of the prisoner). Nor did the facts that Banks
alleged bring the searches outside the scope of reasonable search practices that would rise
to the level of a Fourth Amendment violation. See Florence v. Bd. of Chosen
Freeholders, 566 U.S. ____, ____, 132 S. Ct. 1510, 1517 (2012); Terry v. Ohio, 392 U.S.
1, 17 n.13 (1968) (describing a routine pat-down as involving the groin and area about
the testicles); cf. also Bradley v. United States, 299 F.3d 197, 201 (3d Cir. 2002). We
thus agree with the District Courts conclusion that the pat-down searches Banks
received, at least as alleged in Banks complaint, did not state a claim for a violation of
his constitutional rights.
C.
The job-related incidents that Banks described in his complaint also do not
plausibly allege any constitutional violation. Banks did not object to the Magistrate
Judges recommendation to dismiss the claims based on those incidents, so we review the
dismissal of those claims for plain error only. See Brightwell, 637 F.3d at 193.
First, the limited exposure to bodily fluids as described in Banks complaint and
attached exhibits, allegedly as a result of inadequate safety equipment while cleaning, is
insufficient to state a claim for an Eighth Amendment conditions-of-confinement
violation. The Eighth Amendment is violated only where, viewing the totality of the
conditions in the prison, the inmates conditions of confinement, alone or in combination,
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deprive him of the minimal civilized measure of lifes necessities. Tillery v. Owens, 907
F.2d 418, 426-27 (3d Cir. 1990). Here, Banks alleges only generally that he was exposed
to bodily fluids while engaged in his cleaning job, not that his skin ever came in direct
contact with such fluids or that he suffered any injury or disease exposure. No
constitutional violation is stated based on these allegations. See Farmer v. Brennan, 511
U.S. 825, 847 (1994) ([A] prison official may be held liable under the Eighth
Amendment for denying humane conditions of confinement only if he knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.).
Banks also alleged that, after complaining about these allegedly unsanitary
working conditions, he was transferred to a new cell block and denied new employment.
The allegations in the complaint and its exhibits say that Banks was placed on a waiting
list for a new job when one would become available. Such allegations cannot state any
due process claim. See James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989) (holding that
prisoners do not have a protected liberty or property interest in prison employment). Nor
can they state an alleged retaliation claim, since the merely incidental loss of a job upon
transfer when jobs are not available is not a circumstance where an inmates protected
activity caused an adverse action. And even if the loss of the job after transfer could be
seen as an adverse action under these circumstances, the allegations in the complaint and
incorporated grievance documents here indicate that the same outcome would have
occurred regardless of any retaliatory motive. See Rauser v. Horn, 241 F.3d 330, 334 (3d
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Cir. 2001).
The District Courts dismissal of claims based on these job-related incidents was
therefore not an error that affected Banks substantial rights in a way that impacted the
fairness, integrity or public reputation of judicial proceedings. See Nara, 488 F.3d at 197.
D.
Banks also failed to state a claim for any constitutional violation based on the
alleged denial of access to personal hygiene products. Once again, because Banks did not
object to the Magistrate Judges report on this issue, we review for plain error only. See
id. at 196. In light of the minimal nature of the harm alleged here (the potential denial of
access to a razor somewhere between a few days and 36 days), the District Court also did
not commit plain error when it dismissed claims based on these facts. C.f., e.g., Penrod
v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (holding that a refusal to provide
toothpaste for over two months, leading to bleeding gums and tooth decay, stated an
Eighth Amendment claim).
E.
Banks allegations of conspiracy require dismissal because they are no more than
[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557 ([A] conclusory
allegation of agreement at some unidentified point does not supply facts adequate to
show illegality.). Moreover, a civil conspiracy claim requires a valid underlying tort
claim. Gen. Refractories Co. v. Firemans Fund Ins. Co., 337 F.3d 297, 313 (3d Cir.
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2003). Banks failed to state a claim on any of the constitutional torts he alleged, as noted
above, and therefore cannot support a conspiracy claim based on those alleged actions.
F.
Banks claims alleging supervisory liability suffer from a similar deficiency.
Supervisory liability may be imposed only where there is: (1) contemporaneous
knowledge of the offending incident or knowledge of a prior pattern of similar incidents,
and (2) circumstances under which the supervisors inaction could be found to have
communicated a message of approval to the offending subordinate. Bonenberger v.
Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997). Here, Banks allegations of the various
supervisory defendants participation or actual knowledge and acquiescence have not
been made with sufficient particularity to state a claim. See Rode v. Dellarciprete, 845
F.2d 1195, 1207-08 (3d Cir. 1988).
G.
Finally, the District Court was within its discretion to dismiss the complaint with
prejudice on the ground that granting leave to amend would have been futile. See Lake v.
Arnold, 232 F.3d 360, 373 (3d Cir. 2000).
IV.
For the reasons discussed above, Banks complaint pleaded no viable claim. As a
result, this appeal presents us with no substantial question. We will therefore affirm the
District Courts order dismissing Banks complaint with prejudice.

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