NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1176

___________

ELIJAH CROSBY,

Appellant

v.

JOSEPH J. PIAZZA; *SECRETARY PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS; JOHN W. KERESTES; DAVID W. MCANNANEY; MICHAEL 

MILLER; L.S. KERNS BARR; KANDIS K. DASCANI; SHARON M. BURKS; 

OFFICER MCCAHAN; OFFICER FORNWALD; OFFICER BENZA; JOHN/JANE 

DOE'S; DEPARTMENT OF CORRECTIONS; MR. MORASKIE; SUPERINTENDENT 

COLEMAN; JOAN L. MANN; CANDICE MARIE LACKEY

*(Pursuant to Rule 43(c), Fed. R. App. P.)

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 08-cv-00020 )

District Judge: Honorable Edwin M. Kosik

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 17, 2012

Before: CHAGARES, VANASKIE and STAPLETON, Circuit Judges

(Opinion filed : February 29, 2012)

___________

OPINION

___________

PER CURIAM
2

Elijah Crosby, a state prisoner, appeals pro se from the order of the United States 

District Court for the Middle District of Pennsylvania granting Defendants’ motions to 

dismiss. For the reasons that follow, we will affirm in part, vacate in part, and remand 

for further proceedings.

I.

Crosby is a prisoner at SCI-Coal Township in Pennsylvania. In January 2008, he 

filed a complaint in the District Court pursuant to 42 U.S.C. § 1983, naming as 

Defendants the Pennsylvania Department of Corrections (“DOC”) and eleven DOC 

employees.1

 Crosby alleged violations of his constitutional rights by the Defendants 

arising out of their alleged involvement in searching his cell and subsequent misconduct 

hearings. In August 2009, Crosby amended his complaint to include claims of retaliation 

and conspiracy and added four additional Defendants to the action.2

In the original complaint, Crosby alleged that, in September 2006, while he was 

confined in the F-Block Unit of the prison, several of the Defendants came to his cell to 

escort him to the general intake area to collect an investigative urine sample. After he 

was tested, Crosby alleged that Defendant Miller ordered two other DOC employees to 

 1 Those Defendants are: Joseph Piazza, Jeffrey Beard, John Kerestes, David McAnnaney, 

Michael Miller, L.S. Kerns-Barr, Kandis Dascani, Sharon Burks and Officers McCahan, 

Fornwald, and Benza.

2 Those Defendants are: Superintendent Coleman, Joan L. Mann, Candice Marie Lackey, 

and “Mr. Moraskie.”
3

place him in an observation cell. Later that day, Crosby’s cell was searched and he was 

issued a misconduct for possession of contraband.

The following month, Crosby received a second misconduct after officials again 

found contraband and a controlled substance in his cell. Crosby was afforded hearings on 

both misconducts before Defendant Kerns-Barr. In October 2006, Crosby was found to 

have possessed the contraband referred to in the first misconduct. Later that month, 

Crosby was found to have possessed the controlled substance and the contraband which 

was the subject of the second misconduct.

Crosby thereafter filed numerous grievances relating to the investigation and 

hearings. The grievances were dismissed. Crosby subsequently filed his section 1983 

complaint alleging that: 1) his cell was searched without notice in violation of his Fourth 

Amendment rights; 2) his personal property was illegally confiscated during those 

searches; and 3) he was denied due process during the misconduct proceedings.

In his supplemental complaint, Crosby alleged that several of the original 

defendants and several additional Defendants conspired against him for having filed an 

administrative grievance as to the misconduct, and later retaliated against him for doing 

so by filing the second misconduct and requiring him to enroll in various treatment 

programs. He also alleged that Defendant Moraskie violated his rights by providing false 

information in support of the issuance of the second misconduct. 
4

Crosby sued the Defendants in both their official and individual capacities and 

sought both monetary damages and an injunction preventing them from adding any 

additional programs to his correctional plan which might interfere with his parole.

Defendants moved to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure. See

II.

Fed. R. Civ. P. 12(b)(6). Crosby then filed a second motion to 

supplement his complaint to add new claims against additional Defendants. In a January 

2011 order, the District Court granted Defendants’ motions to dismiss and denied Crosby 

an opportunity to further supplement his complaint. Crosby timely appealed.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over a Rule 12(b)(6) dismissal, see Weston v. Pennsylvania, 251 F. 3d 

420, 425 (3d Cir. 2001), and we may affirm the judgment “on any basis which finds 

support in the record,” see Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980). 

A motion to dismiss should be granted if the plaintiff is unable to plead “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 570 (2007). The plausibility standard “asks for more than a sheer possibility 

that a defendant has acted unlawfully.” Ashcroft v. Iqbal

As an initial matter, the District Court properly dismissed Crosby’s claims for 

money damages against the DOC, 

, 129 S. Ct. 1937, 1949 (2009).

see Edelman v. Jordan, 415 U.S. 651, 663 (1974), as 

well as the other named Defendants to the extent they were acting in their official 

capacities. Indeed, the Eleventh Amendment bars a suit for money damages against a 
5

state agency and state officials sued in their official capacities. See Melo v. Hafer

We also affirm the dismissal of Defendants Beard, Piazza, Kerestes, Dascani, 

Burks, and Coleman from the action because Crosby failed to allege that they were 

personally involved in any wrongdoing. 

, 912 

F.2d 628, 635 (3d Cir. 1990).

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; liability cannot be predicated solely on the operation of respondeat 

superior.”).

Crosby first alleged that Defendant Kerns-Barr denied him due process at his 

misconduct hearings because he was not permitted to present witnesses, conduct crossexamination of a confidential witness, and personally test the chemical powder found in 

his cell. In 

Due Process Claim

Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that a 

prisoner facing the deprivation of a constitutionally cognizable liberty interest following 

an administrative hearing has a due process right to certain procedural protections. 

Specifically, at a prison disciplinary hearing, due process requires that the inmate: (1) 

appear before an impartial decision-making body; (2) be given not less than 24 hours 

written notice of the charges against him; (3) be afforded the opportunity to call witnesses 

and present documentary evidence; (4) be permitted assistance from an inmate 

representative; and (5) receive a written decision explaining the decision-maker’s 

conclusions. Id. at 563-71. However, an inmate’s due process rights are not triggered 
6

unless the prison “imposes atypical and significant hardship on the inmate in relation to 

the ordinary incidents of prison life.” Sandin v. Conner

Crosby was placed in RHU for a total of 270 days after he was found guilty of 

both misconducts. We have held that this type of confinement does not constitute an 

“atypical and significant hardship” under 

, 515 U.S. 472, 484 (1995). 

Sandin. See Griffin v. Vaughn, 112 F.3d 703, 

706 (3d Cir. 1997) (finding that fifteen months in segregation was not an atypical and 

significant hardship); Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that 

seven months’ disciplinary confinement “does not, on its own, violate a protected liberty 

interest as defined in Sandin

Therefore, because Crosby’s disciplinary confinement did not impose an atypical 

and significant hardship, and thus did not deprive him of a protected liberty interest, the 

procedural due process protections of 

.”) 

Wolff did not apply to his hearing. Moreover, even 

under Wolff, Crosby would not have been permitted to test the materials that were found 

in his cell.

Crosby also alleged that his Fourth Amendment rights were violated because 

Defendants Miller, Fornwald, Benza, and McCahan failed to provide him with notice that 

his cell would be searched. He also claimed that in conjunction with the cell search, 

certain commissary items were illegally removed from his cell. The District Court did 

not err in dismissing this claim because, as the Supreme Court has held, “the Fourth 

Illegal Search
7

Amendment proscription against unreasonable searches does not apply within the 

confines of the prison cell.” Hudson v. Palmer

We also affirm the District Court’s dismissal of Crosby’s claim concerning the 

confiscation of his property. Deprivation of inmate property by prison officials does not 

give rise to cognizable due process claim if the prisoner has an adequate post-deprivation 

state remedy. 

, 468 U.S. 517, 526 (1984). 

Hudson, 468 U.S. at 533. Adequate remedies were available here as 

Crosby was provided an opportunity to file an administrative grievance. See Tillman v. 

Lebanon County Corr., 221 F.3d 410, 422 (3d Cir. 2000). As the District Court correctly 

noted, to the that extent Crosby is dissatisfied with the outcome of the administrative 

process, he may still file a state court tort action. Hudson, 468 U.S. at 535. 

The District Court also correctly dismissed Crosby’s claim against Defendant 

Moraskie. Crosby alleged that Moraskie violated his constitutional rights by providing 

false information regarding the items that were confiscated from his cell in connection 

with the first misconduct. The filing of false disciplinary charges does not constitute a 

claim under § 1983 so long as the inmate was granted a hearing and an opportunity to 

rebut the charges. 

Defendant Moraskie

Mensinger, 293 F.3d at 653-54 (3d Cir. 2002); Freeman v. Rideout, 

808 F.2d 949, 952-53 (2d Cir. 1986). Crosby does not allege that he was denied a 

hearing. Therefore, to the extent he asserted a due process violation, the District Court 

properly dismissed the claim.

Retaliation Claims
8

Crosby next alleged that Defendants Piazza, Miller, McAnnaney, Kerestes, and 

Kerns-Barr issued the second misconduct report against him in retaliation for his having 

filed an administrative grievance after he was issued the first misconduct. He also claims 

that, as a result of filing his complaint, he is now required to attend additional treatment 

programs which will impede his ability to seek parole. 

Section 1983 imposes liability for retaliatory conduct by prison officials if the 

conduct was motivated “in substantial part by a desire to punish [the] individual for the 

exercise of a constitutional right,” Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) 

(quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)), such as 

filing lawsuits and grievances related to incarceration. See Mitchell v. Horn, 318 F.3d 

523, 530 (3d Cir. 2003); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981). To 

prevail on a section 1983 retaliation claim, the prisoner must prove: (1) that the conduct 

leading to the alleged retaliation was constitutionally protected; (2) that he suffered an 

adverse action sufficient to deter a person of ordinary firmness from exercising his 

constitutional rights; and (3) that his protected conduct was a substantial or motivating 

factor in the decision to discipline him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 

2001). However, “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.” Id.

The District Court dismissed Crosby’s claim that the Defendants issued the second 

misconduct report against him in retaliation for his having an administrative grievance, 

at 334.
9

reasoning that the multiple grievance decisions in the record demonstrate that the 

Defendants would have taken the same action irrespective of any desire to retaliate 

against Crosby. The standard applied by the District Court, arguably appropriate at the 

summary judgment stage, was incorrectly applied to the Defendants’ motion to dismiss. 

The question before the District Court was whether Crosby stated a claim upon which 

relief could be granted. Based on the pleadings, we conclude that Crosby made out a 

prima facie case of retaliation; dismissal was therefore inappropriate.

3

We are also unable to affirm, under Iqbal

Crosby’s claim that, in retaliation for filing the instant civil action, he has been required 

to complete several treatment programs which will interfere with his ability to seek

parole. The District Court determined that Crosby failed to state a claim for relief under 

, the District Court’s dismissal of 

Rauser

We cannot determine from either the supplemental complaint, or Defendants’ 

motion to dismiss, whether Crosby, by his placement in these programs, has been 

because he failed to allege an actual injury. Specifically, the Court determined 

that because Crosby has no right to parole under Pennsylvania law, such an argument is 

not viable.

 3 We will affirm the dismissal of Crosby’s related conspiracy claim, however. Crosby 

alleged that Defendants Miller, Piazza, Kerestes, and Burns conspired to issue the second 

misconduct after Crosby filed a grievance following the issuance of the first misconduct. 

We agree with the District Court that Crosby’s conspiracy claim is deficient because 

absent from his complaint are allegations of at least some facts which could permit a 

reasonable inference of a conspiracy to be drawn. See, e.g., Abbott v. Latshaw, 164 F.3d 

141, 148 (3d Cir. 1998) (mere “conclusory allegations of concerted action” are 

insufficient to satisfy the notice-pleading standard).
10

significantly impeded from seeking parole or whether he is subject to only a minor delay. 

We disagree, however, that the fact that Crosby has no state or federal right to parole 

means that prison officials may, with impunity, impede his eligibility to seek parole in 

retaliation for his filing suit against them. Presumably, the District Court will grant 

Crosby leave to amend his complaint so that he may clarify the impact that his enrollment 

in these programs has on his ability to seek parole. 

Accordingly, we will vacate the District Court’s order as to Crosby’s retaliation

claims and will remand for further proceedings.

4

Finally, Crosby argues that the District Court erred in denying his motion for leave 

to file a second supplemental complaint. As mentioned, in that motion, Crosby sought to

add new claims against additional Defendants. The District Court may permit a party to 

file a supplemental pleading “setting out any transaction, occurrence, or event that 

happened after the date of the pleading to be supplemented.” 

Second Supplemental Complaint

See Fed. R. Civ. P. 15(d). 

We review the denial of leave to file a supplemental complaint for abuse of discretion. 

Race Tires Am., Inc. v. Hoosier Racing Tire Corp.

We find that the District Court did not abuse its discretion by denying Crosby

leave to supplement his complaint. Although Crosby’s second supplemental complaint

, 614 F.3d 57, 73 (3d Cir. 2010). 

 4 We note that the District Court did not rule on Crosby’s request that the Court issue an 

injunction prohibiting the Defendants from adding additional programs to his correctional 

plan which would further interfere with his parole. On remand, the District Court should 

also address that request as well.
11

included actions which occurred after he filed his original complaint, they involve claims 

of retaliation against parties other than the named Defendants. The District Court was 

within its discretion when it found that granting leave to supplement would delay the 

disposition of the claims against those Defendants, thereby causing them prejudice. 

Accordingly, we will affirm the judgment of the District Court in part, vacate in 

part, and remand for further proceedings consistent with this opinion. Crosby’s “Motion 

to Request Leave to Supplement the Record and Add to Appendix” is denied. His 

“Motion for Leave to Submit Response to Motion that is in Front of the Panel” is also 

denied.