GLD
- 055 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3059

___________ SEAN TAPP , Appellant

v. ANDY PROTO; GILBERTO CRESPO; NICOLE GOLBACH; BRENDA WILLIAMS; JOEL ALVAREZ; INEZ CALENE; AL AN HUBER; ROMANOWSKI, Mr.; GUARDREENI, Mr.; ROBERT SAMASKO; KLOWONSKY, Mr .; R. WOLFFE, Sgt.; MASTERANGELO, C.O.; BROWN, C.O.; MCCORMICK, C.O.; OWENS, C.O.; MINOTTI, C.O.; ZIMMERMAN, C.O.; BRENDOL, C.O.;

BOOTH, C.O.; R. YEINGST, C.O.; TRUDELL, Sgt.; LEFEVRE , Sgt.; COCO, C.O.; BARLEY, C.O.; DOUGH, Dr.; NURSE RACHEL; NURSE HENNLY; DEFORD, C.O. , Lancaster County Prison Officials

____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Civil No. 07

- 3725 ) District Judge: Honorable Anita B. Brody

____________________________________ 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 December 2 , 2010
Before: AMBRO, CHAGARES and NYGAARD , Circuit Judges

(Opinion filed December 13, 2010 )

_________ OPINION

_________2

PER CURIAM Appellant Sean Tapp brought this pro se 42 U.S.C. § 1983 action challenging numerous aspects of his confinement at Lancaster County Prison. T he District Court grant ed summary judgment to all defendants and denied Tapp‟s cross

- motion for summary judgment , and Tapp appealed. 1 We have jurisdiction under 28 U.S.C. § 1291
and review the order granting summary judgment under a plenary sta ndard of review. State Auto Prop. & Cas. Ins. Co. v. Pro Design , P.C. , 566 F.3d 86, 89 ( 3d Cir. 2009).
Because t his appeal presents no substantial question, we will summarily affirm the
D istrict C ourt ‟s judgment

. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Free Exercise of Religion Tapp first claim s that the defendants vio lated his First Amendment right to the free exercise of religion by failing to provide him with acceptable Kosher meals. The undisputed evidence reveals, however, that the prison began t o serve Kosher meals to Tapp less than two weeks after he first request ed them . Given that a prison is entitled to assess whether an inmate‟s dietary requirements are motivated by “sincerely held” religious beliefs, DeHart v. Horn , 227 F.3d 47, 51 (3d Cir . 2000), we conclude that the prison‟s short delay in honoring Tapp‟s request did not impinge on his free exercise rights. Tapp also complains that the Kosher meals the prison served him lacked variety
and were often cold. We have previously held that a prison does not violate the Free

1 Tapp named 29 defendants in his complain t. In the interest of brevity and because we conclude that his claims fail against all defendants, we will treat the3

Exercise Clause by offering an all

- cold Kosher diet, s ee Johnson v. Horn , 15 0 F.3d 276, 283 (3d Cir. 1998), overruled on other grounds by DeHart , 227 F.3d at 55, and similarly perceive no constitutional violation here

. M oreover, to the extent that Tapp alleges the existence of other intermittent problems with food preparation, those issues impose only
a de minimis burden on his religion and thus do not violate the Free Exercise Clause. See Rapier v. Harris , 172 F.3d 999, 1006 n.4 (7th Cir. 1999)

. Accordingly, we agree with the District Court that Tapp‟s free

- exercise claims lack merit.
II. Right of Access to the Courts Tapp next argues that prison officials denied his right of access to the courts by refusing to notarize his documents or allow him to use the law library. To prevail on such a claim, Tapp must show that the denial of access caused actual injury ; for instance,
that he was prevented from asserting a “nonfrivolous” and “arguable” claim

. Christopher
v. Harbur y , 536 U.S. 403, 415 (2002). As the District Court explained, Tapp failed on summary judgment to show any such injury. While Tapp claimed at his deposition that due to the prison officials‟ obstruction he was unable to institute a habeas action in the
So uthern District of New York, that court‟s docket reveals that Tapp filed a habeas petition before he entered Lancaster County Prison. Moreover, contrary to the broad allegations in Tapp‟s complaint, the documentary evidence show s that Tapp was in fact
pro vided with notary services and permitted to use the library on a regular basis throughout his incarceration

— and that he prosecuted at least three civil cases during th is period

. See Wilson v. Prasse , 404 F.2d 1380, 1381 (3d Cir. 1968) (“ [T] he many civil

d efendants collectively throughout this opinion.4

actions instituted by appellant in the federal and state courts supported the conclusion of the District Court that the contention that appellant had been denied acc ess to the court
was frivolous

. ” ). Nor did the alleged flaws in the prison‟s grievance sys tem violate Tapp‟s right of
access to the courts

. The District Court correctly noted both that an inmate has no constitutional right to a grievance procedure and that the existence of the instant case belies any notion that Tapp could not access the court s
. See Antonelli v. Sheahan , 81 F.3d 1422, 1430 (7th Cir. 1996).
III. Conditions of Confinement Tapp presents an array of claims concerning the conditions of his confinement. Two different legal standards are applicable: Tapp‟s claims that arose while h e was a pretrial detainee (from when he entered the prison until he was sentenced on September 17, 200 7 ) must be prosecuted under the Due Process Clause of the Fourteenth Amendment, while his claims that arose after he was sentenced are analyzed under the Eight h Amendment‟s Cruel and Unusual Punishments Clause. See Hubbard v. Taylor , 399 F.3d 150, 164 (3d Cir. 2005). In lieu of attempting to glean from Tapp‟s unclear allegations precisely which period of his confinement his claims concern, we will analyze
all of his claims under the Due Process Clause , because his due process rights are at least as broad, if not broader, than his rights under the Eighth Amendment. S ee Fuentes v. Wagner , 206 F.3d 335, 344 (3d Cir. 2000). Tapp first argues that his right s were violated when he was forced to share a cell with two other inmates. The Supreme Court has recognized that “confining a given5

number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship ove r an extended period of time might raise serious questions under the Due Process Clause.” Bell v. Wolfish , 441 U.S. 520, 542 (1979)

. Here, Tapp‟s cell was 95 square feet in size and, according to the deputy warden at Lancaster, was actually designed to h o use three people. Moreover, Tapp was h eld in this cell for only four to s ix weeks, and during this time he was provided with an elevated

“ boat bunk ” with a mattress. These conditions do not amount to the type of hardship that
violates the Due Process Cl ause. See Hubbard v. Taylor , 538 F.3d 229, 236 (3d Cir. 2008). Tapp also argues that his rights were violated because two days each week he was
denied access to the exercise and shower facilities

. Other courts have held that similar
conditions do not violate the Eighth Amendment, see, e.g. , Spain v. Procunier , 600 F.2d
189 , 199 (9th Cir. 1979) (exercise); Davenport v. DeRobertis , 844 F.2d 1310, 1316 (7th Cir. 1988) ( shower) , and given that Tapp h as presented no evidence that this schedule
somehow amoun ts to punishment , we conclude that his claim likewise fails under the
Due Process Clause.
We reach the same conclusion as to Tapp ‟s complaints that he was given clothes that had previously been worn by other inmates , that the prison temperatures were to o high , and that he was forced to room for a night with an unruly “dope fiend.” While prison officials must ensure that prisoners receive adequate clothes , a re held in cells that

are sufficiently ventilated , and are protected from being harmed by other pr isoners, see generally Farmer v. Brennan , 511 U.S. 825, 832 (1994) ; Keenan v. Hall , 83 F.3d 1083,6

1091 (9th Cir. 1996) , we conclude that Tap p has presented no evidence that t he
conditions he experienced amounted to the type of genuine privation that qualif ies as

“ punishment. ” See Bell , 441 U.S. at 537 (“the fact that such detention interferes with a detainee‟s understandable desire to live as comfortably as possible

. . . does not convert the conditions or restrictions of detention into „punishment‟”).
F inally, Tapp contends that he received inadequate medical care because the prison‟s medical staff failed properly to document his weight. Contrary to Tapp‟s argument, the evidence shows that upon learning that Tapp had lost weight, the staff weighed him r epeatedly , took blood tests, and arranged for him to receive a night ly
snack

. Ultimately, the medical records report , his weight was stabilized. Accordingly, we conclude that the District Court was correct to grant summary judgment to the
defendants on t his claim. 2
IV. Remaining Claims Tapp‟s remaining claims will be addressed here seriatim. Tapp complains that prison officials wrongfully appropriated a photograph of his girlfriend. However, deprivation of inmate property by prison officials does not state a cognizable due process
claim if the prisoner has an adequate post

- deprivation state remedy. Hudson v. Palmer , 468 U.S. 517, 533 (1984)

. Adequate remedies were available here: Tapp could have

2 Tapp also claims that he was given an inadequate diet and that the drinking water he received came from a tank that mixed drinking and sewage water. However, he has presented no evidence in support of these claims beyond his mere speculation, while the prison officials have presented documentary evidence that contradicts these claims. Ac cordingly, the District Court properly granted summary judgment to the prison officials.7

filed a state tort action, see id. at 535, or used th e prison‟s grievance process, s ee Tillman v. Lebanon County Corr

. , 221 F.3d 410, 422 (3d Cir. 2000). Tapp contends that he was the victim of numerous, multi

- faceted conspiracies. These claims must fail because all that Tapp has presented are “ ambiguous allegations and vague inferences ,” which, this Court has explained, “ cannot defeat summary judgment .” Ridgewood Bd. of Educ. v. N.E. ex rel M.E. , 172 F.3d 238, 254 (3d Cir. 1999)

. Tapp‟s allegations of racial discrimination similarly lack merit because t hey are based on only his unsupported conclusion that the defendants acted against him on the
basis of his race. See Chambers v. Sch. Dist. of Phila. Bd. of Educ. , 587 F.3d 176, 197 (3d Cir. 2009)

. Finally, Tapp avers that prison officials violated his due process rights because they held a disciplinary hearing in which he was not permitted to call witnesses or produce documentary evidence

. See Surprenant v. Rivas , 424 F.3d 5, 17 (1st Cir. 2005) (discussing rights of pretrial detainees). However, b y Ta pp‟s own testimony, he intentionally violated prison rules for the very purpose of being placed in segregation so that he would no longer have to room with his then

- cellmate. In these unusual circumstances, it is unclear what documentary evidence he w ould have introduced

— he has not identified any

— and it was permissible for the officials to determine that witnesses were unnecessary. See Pannell v. McBride , 306 F.3d 499, 503 (7th Cir. 2002)

. For these same reasons, we perceive no way in which the se res trictions could have8

resulted in prejudice

. See Piggie v. Cotton , 344 F.3d 674, 678 (7th Cir. 2003)

. 3 We have thoroughly r eviewed the remaining allegations Tapp has made and find
them meritless. Accordingly , we conclude that there is no substantial ques tion prese nted by this appeal, and will thus summ arily affirm the District Court‟ s order s granting summary judgment to all defendants and denying summary judgment to Tapp

. See 3d
Cir. L

. A

. R

. 27.4; I.O.P. 10.6.

3 For the reasons discussed in this opinion, we conclude that the District Court also correctly denied Tapp‟s cross

- motion for summary judgment and his request for i njunctive relief. We likewise affirm the District Court‟s order denying Tapp‟s motion for reconsideration. While Tapp argued that he was deprived of his legal papers, the documentary evidence and Tapp‟s own statements in his filings and deposition refute this contention.