DLD-274 NOT PRECEDENTIAL 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 District of Pennsylvania 

(M.D. Pa. Civil No. 3:18-cv-00314) 

District Judge: Honorable Richard P. Conaboy 

____________________________________ 

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 

July 26, 2018 

Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges 

(Opinion filed: July 31, 2018) 

_________ 

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. 
2 

Pro se appellant Keith Davis, proceeding in forma pauperis, appeals from the 

District Court’s dismissal of his claims against 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 Anthony Eberling issued a misconduct report 

involving Davis on April 10, 2017. The report states that Davis passed a knife to another 

prisoner, Harris, and then stood by while Harris stabbed another prisoner as they were 

waiting in a line. Lieutenant House participated in the investigation 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 that he was not involved with the stabbing 

and requested that the hearing examiner review video footage from that day; he also 

requested the presence of three witnesses to testify on his behalf. The hearing examiner 

concluded after reviewing video 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 the video footage sufficiently supported the 

 

1

 Davis is presently incarcerated at the State Correctional Institution in Houtzdale, 

Pennsylvania. 
3 

allegations against Davis. Davis was sanctioned to 135 days in disciplinary confinement. 

Davis appealed the guilty finding through the prison administrative appeal 

process. A Program Review Committee, Superintendent Kevin Kauffman, and finally 

Chief Hearing Examiner Joseph Dupont denied all of Davis’ appeals. The Program 

Review Committee included Deputy Superintendents 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 Eberling, House, Ellenberger, Oliver, Thomas, 

Kauffman, Dupont, and Captain Harris.2

 Davis claims that his due process rights were 

violated during his hearing because the hearing examiner denied his request to present his 

witnesses and supposedly failed to review the video footage of the incident. Davis insists 

that he would not have been found guilty if the hearing examiner had viewed the video 

footage and maintains that his administrative appeals were wrongly denied. Additionally, 

Davis maintains that he was denied access to the courts because he was given inadequate 

time and materials to conduct research for his state post-conviction proceedings and 

insufficient time to consult with his attorney in those proceedings 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 claims 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 about Harris in his complaint; this information 

is available only in a prison report that Davis attached to his complaint. 
4 

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.3

 We exercise 

plenary review over the District Court’s dismissal 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 appointment of counsel for abuse of discretion. See 

Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). We may summarily affirm a district 

court’s decision “on any basis supported by the record” if the appeal fails to present a 

substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (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 deprived of a legally 

cognizable liberty interest when he was placed in disciplinary confinement. A prisoner 

can identify a cognizable liberty interest if a punishment “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 consider the duration of the disciplinary 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 Davis’ complaint without prejudice, because 

Davis cannot cure the deficiencies in his complaint, as discussed below, the District 

Court’s order is final within the meaning of 28 U.S.C. § 1291. See 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 custody 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, 293 F.3d 641, 654 (3d Cir. 2002) (concluding 

that seven months in disciplinary confinement alone did not violate a prisoner’s liberty 

interest); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (same for fifteen months in 

administrative custody). To the extent that Davis alleged due process claims against 

Oliver, Thomas, Kauffman, and Dupont for their handling of his grievances and appeals, 

those too fail because access to prison grievance procedures is not constitutionally 

required. See Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence of 

a prison grievance procedure confers no liberty interest on a prisoner.”). Therefore, 

Davis’ due process claims were all correctly dismissed. 

Davis’ only remaining claims, that he was denied access to the courts by 

seemingly all defendants, also lack merit. Although 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 lacked personal involvement in any underlying civil rights 
6 

violation.4

 See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant 

in a civil rights action must have personal 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 disciplinary outcomes implicate the fact or duration of a 

prisoner’s confinement; here, the discipline imposed on Davis had no bearing on his 

underlying conviction or the duration of his sentence. See Muhammad v. Close, 540 U.S. 

749, 751 (2004) (“Heck’s requirement to resort to state litigation 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 sentence.”). 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 affirm the dismissal of Davis’ claims. 

 

4

 Because Davis’ claims lack arguable merit, the District Court did not err in denying his 

motion for appointment of counsel. See Tabron, 6 F.3d at 158. We deny his present 

motion for appointment of counsel for the same reason.