DLD-118 NOT PRECEDENTIAL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)
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_________

OPINION*

_________

PER CURIAM

Ronald Banks, proceeding pro se and in forma pauperis, appeals from the District 

Court’s 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 life’s 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 Court’s 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 Judge’s report and which the District Court did not 

subject to de novo review, we instead review the District Court’s 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 party’s 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 Court’s 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 plaintiff’s 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 Iqbal’s 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 

inmate’s First Amendment rights where it is in retaliation for an inmate’s 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 officer’s intentional contact with an 

inmate’s genitalia or other intimate area, which serves no penological purpose and is 

undertaken with the intent to gratify the officer’s 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 

inmate’s 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 

 

1 Also, Banks’ pleadings effectively allege that the prison officials would have 

eventually searched Banks’ cell and confiscated Banks’ radio—regardless of any 

retaliatory motive—because 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 Court’s 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 

Judge’s 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 inmate’s conditions of confinement, alone or in combination, 
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deprive him of the minimal civilized measure of life’s 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 inmate’s 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 Court’s 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 Judge’s 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. Fireman’s 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 supervisor’s 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 Court’s order dismissing Banks’ complaint with prejudice.