DLD-274 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 18-2033

___________ KEITH DAVIS, Appellant

v. ANTHONY E. EBERLING; LT. HOUSE; CAPTAIN JOHN DOE; J. THOMAS; HEARING EXAMINER S. ELLENBERGER; L. OLIVER DEPUTY SUPERINTENDENT; KEVIN KAUFFMAN SUPERINTENDENT; JOSEPH H. DUPONT, CHIEF HEARING EXAMINER

___________________ _________________ On Appeal from the United States District Court for the Middle Distri ct of Pennsylvania

(M.D. Pa. Civil No. 3:18-cv-00314) District Judge: Honorable Richard P. Conaboy

___________________ _________________ Submitted for Possible Dismi ssal 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 July 26, 2018 Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges (Opinion filed: July 31, 2018)

_________ OPINION *

_________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Pro se appellant Keith Davis, proceedi ng in forma pauperis, appeals from the District Court’s dismissal of his claims ag ainst numerous defendants in a civil rights action brought pursuant to 42 U. S.C. § 1983. For the reasons that follow, we will summarily affirm the District Court’ s judgment with one modification.
I. Because we write primarily for the parties, we will recite only the facts necessary for our discussion. At the time relevant to his claims, Davis was incarcerated at the State Correctional Institution in Huntingdon, Pennsylvania. 1 Davis alleges the following account in his complaint. Lieutenant An thony Eberling issued a misconduct report involving Davis on April 10, 2 017. The report states that Davis passed a knife to another prisoner, Harris, and then stood by while Ha rris stabbed another prisoner as they were waiting in a line. Lieutenant House particip ated in the investig ation leading to the issuance of the misconduct report. Hearing Examiner Ellenberger held a disciplinary hearing on the misconduct charges on April 13, 2017. Davis contended th at he was not involved with the stabbing and requested that the hearing examiner revi ew video footage from that day; he also requested the presence of thr ee witnesses to testify on his be half. The hearing examiner concluded after reviewing vide o footage that Davis had passed a knife to Harris and then watched as Harris stabbed another prisoner. The examiner did not allow any of Davis’ requested witnesses to testify because th e video footage sufficiently supported the

1 Davis is presently incarcerated at the State Correctional Institution in Houtzdale, Pennsylvania.3 allegations against Davis. Davis was sanctione d to 135 days in disc iplinary confinement. Davis appealed the guilty finding thr ough the prison administrative appeal process. A Program Review Committee, Su perintendent Kevin Ka uffman, and finally Chief Hearing Examiner Joseph Dupont denied all of Davis’ appeals. The Program Review Committee included Deputy Su perintendents Oliver and Thomas. In early 2018, Davis filed a complaint in the District Court seeking relief pursuant to 42 U.S.C. § 1983 against defendants Eb erling, House, Ellenberger, Oliver, Thomas, Kauffman, Dupont, and Captain Harris. 2 Davis claims that his due process rights were violated during his hearing becau se the hearing examiner denied his request to present his witnesses and supposedly failed to review the vi deo footage of the incident. Davis insists that he would not have been found guilty if the hearing ex aminer had viewed the video footage and maintains that his administrative appeals were wr ongly denied. Additionally, Davis maintains that he was denied access to the courts because he was given inadequate time and materials to conduct research fo r his state post-conviction proceedings and insufficient time to consult w ith his attorney in those pr oceedings while he was in disciplinary confinement. The District Court screened Davis’ complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and dismissed all of his cl aims as frivolous. Davis timely appealed.
II.

2 It appears that Captain Harris reviewed a decision to place Davis into administrative confinement at the completion of his disciplinary confinement term in order to protect him. Davis includes no factual allegations ab out Harris in his compla int; this information is available only in a prison report th at Davis attached to his complaint.4 We have jurisdiction over this ap peal pursuant to 28 U.S.C. § 1291. 3 We exercise plenary review over the District Court’s dism issal of Davis’ complaint as frivolous. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We review the District Court’s denial of Davis’ request for appointm ent of counsel for abuse of discretion. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). We ma y summarily affirm a district court’s decision “on any basis supported by th e record” if the appeal fails to present a substantial question. See Murray v. Bledso e, 650 F.3d 246, 24 7 (3d Cir. 2011) (per curiam).
III. The District Court properly dismissed all of Davis’ claims. First, Davis failed to state a due process claim against defendants Eberling, House, and Ellenberger regarding their involvement in his disciplinary hearing because he was not de prived of a legally cognizable liberty interest wh en he was placed in disciplinary confinement. A prisoner can identify a cognizable lib erty interest if a punish ment “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). “In deciding whether a protected liberty interest exists[,] . . . we c onsider the duration of the di sciplinary confinement and the conditions of that confinement in relation to other prison conditions.” Mitchell v. Horn, 318 F.3d 523, 532 (3d Cir. 2003).

3 Although the District Court dismissed Da vis’ complaint without prejudice, because Davis cannot cure the deficiencies in his co mplaint, as discussed below, the District Court’s order is final within the meaning of 28 U.S.C. § 1291. Se e Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976).5 Davis has not identified a protected liberty interest. He does not allege that any conditions of his 135- day confinement in disciplinary cu stody involved an atypical and significant hardship. This Court has held that significantly longer stays in restrictive confinement did not implicate a prisoner’s liberty interests under otherwise similar circumstances. See Smith v. Mensinger, 29 3 F.3d 641, 654 (3d Ci r. 2002) (concluding that seven months in disciplinary confinemen t alone did not violat e a prisoner’s liberty interest); Griffin v. Vaughn, 112 F.3d 703, 7 08 (3d Cir. 1997) (same fo r fifteen months in administrative custody). To the extent th at Davis alleged due process claims against Oliver, Thomas, Kauffman, and Dupont for thei r handling of his grie vances and appeals, those too fail because access to prison grie vance procedures is not constitutionally required. See Massey v. Helman, 259 F.3d 6 41, 647 (7th Cir. 2001) (“[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner.”). Therefore, Davis’ due process claims we re all correctly dismissed. Davis’ only remaining claims, that he was denied access to the courts by seemingly all defendants, also lack merit. Al though Davis contends that he had difficulty conducting sufficient research or getting enough time to speak with his post-conviction attorney due to his placement in disciplinary confinement, he does not allege that any defendant had a role in any incident where he sought and was denied research time or telephone access. Thus, they l acked personal involvement in any underlying civil rights6 violation. 4 See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have persona l involvement in the alleged wrongs.”). Finally, to the extent that the District Court dismissed Davis’ complaint without prejudice after it additionally held that Davis’ claims were barred by the favorable termination rule in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), we will modify the judgment to be a dismissal with prejudice. The favorable termination rule in Heck applies only where prison disc iplinary outcomes implicate th e fact or duration of a prisoner’s confinement; here, the discipline imposed on Davis had no bearing on his underlying conviction or the du ration of his sentence. See Muhammad v. Close, 540 U.S. 749, 751 (2004) (“Heck’s requirement to re sort to state litigati on and federal habeas before § 1983 is not . . . implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his senten ce.”). Accordingly, Davis’ claims should be dismissed with prejudice, as they lack legal merit and cannot be salvaged through amendment. See Shane v. Fauver, 213 F. 3d 113, 115 (3d Cir. 2000). In all other respects, we will summarily a ffirm the dismissal of Davis’ claims.

4 Because Davis’ claims lack arguable merit, the District Court di d not err in denying his motion for appointment of counsel. See Ta bron, 6 F.3d at 158. We deny his present motion for appointment of co unsel for the same reason.