2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-16-2014

Sharob Abdul-Aziz v. Michelle Ricci

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1278

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DLD-255 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1278

___________

SHAROB ABDUL-AZIZ,

Appellant

v.

MICHELE RICCI; ADMINISTRATOR NEW JERSEY STATE PRISON; 

DONALD MEE, ASSISTANT ADMINISTARTOR AT NEW JERSEY STATE 

PRISION IS BEING SUED IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;

WILLIAM MOLEINS, CAPTAIN AND ACTING DIRECTOR OF CUSTODY 

AT NEW JERSEY STATE PRISON IS BEING SUED IN HIS 

INDIVIDUAL AND OFFICIAL CAPACITY;CLAY MCCLAIN, 

SERGEANT AT NEW JERSEY STATE PRISON 

IS BEING SUED IN HIS INDIVIDUAL AND OFFICIAL CAPACITY

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-08-cv-05764)

District Judge: Honorable Mary L. Cooper

____________________________________

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

May 15, 2014

Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges

(Opinion filed: June 16, 2014)

_________

OPINION

_________
2

PER CURIAM

Sharob Abdul-Aziz, proceeding pro se and in forma pauperis, appeals from the 

District Court’s order granting the defendants’ motion for summary judgment pursuant to 

Federal Rule of Civil Procedure 56(a). For the reasons set forth below, we will 

summarily affirm.1 

I.

Sharob Abdul-Aziz, a New Jersey prisoner, filed an amended complaint pursuant 

to 42 U.S.C. § 1983, naming as defendants various officials and employees of the New 

Jersey State Prison (“NJSP”). The complaint alleged that Muslim inmates were 

prevented from practicing their religion, and that Abdul-Aziz was retaliated against for 

trying to rectify the unfair treatment. The alleged retaliation involved a nine-day 

assignment to temporary close custody (“TCC”) and transfer to an institutional job that 

was much lower-paying than his previous position. According to Abdul-Aziz, these 

actions violated his rights under the First, Eighth, and Fourteenth Amendment. He asked 

for monetary and injunctive relief. 

 

1 We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We may 

summarily affirm a decision of the District Court if the appeal does not raise a substantial 

issue. 3d Cir. LAR 27.4; I.O.P. 10.6. We may affirm on any basis supported by the 

record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Because 

Abdul-Aziz is proceeding in forma pauperis, we must dismiss the appeal if it is frivolous. 

28 U.S.C. § 1915(e)(2)(B)(i).

 
3

The District Court dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) AbdulAziz’s claims that his job reassignment violated his rights under the Due Process Clause 

of the Fourteenth Amendment and that his time in the TCC violated his rights under the 

Due Process Clause and Eighth Amendment, and denied his request for injunctive relief 

regarding the return of his musical instruments and electronic equipment. The District 

Court also denied Abdul-Aziz’s motion to certify a class of Muslim inmates at NJSP.2 

Following discovery, Abdul-Aziz and the defendants made cross-motions for summary 

judgment, which the District Court denied with respect to Abdul-Aziz and granted in part 

and denied in part with respect to the defendants, leaving one claim viable. Counsel was 

appointed to represent Abdul-Aziz, and after additional discovery, the defendants again 

moved for summary judgment. The District Court granted the defendants’ motion, and 

Abdul-Aziz timely appealed. 

II.

We exercise plenary review over the District Court’s dismissal order. See Allah v. 

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Dismissal is appropriate where the pleader 

has not alleged “sufficient factual matter, accepted as true, to state a claim to relief that is 

 

2 We agree with the District Court’s reasons for denying these motions and will not 

address them further. 

We review such an action for abuse of discretion, Brown v. City of Pittsburgh, 586 F.3d 

263, 268 (3d Cir. 2009), and discern no error in the District Court’s denial of AbdulAziz’s motions for a preliminary injunction. The motion requested relief that was 

duplicative of that requested by the complaint. Because Abdul-Aziz’s complaint was not 

supported by adequate evidence, he is not entitled to the relief requested. 
4

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations 

omitted). 

Upon review, we conclude that the District Court properly dismissed AbdulAziz’s claim that conditions during his time in TCC violated his rights under the Eighth 

Amendment. To establish that one’s conditions of confinement violate the Eighth 

Amendment’s prohibition on cruel and unusual punishment, a plaintiff must show he was 

denied “the minimal civilized measure of life's necessities.” Betts v. New Castle Youth 

Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010). Although Abdul-Aziz alleged that he was 

not given a change of clothing, he did not claim that he was forced to go without clothing 

or that his fundamental needs were not being met. This Court held, in Gibson v. Lynch, 

652 F.2d 348 (3d Cir. 1981), that an inmate’s incarceration for 90 days in solitary 

confinement due to prison overcrowding did not violate the Eighth Amendment where his 

basic needs for nutrition and shelter were being met. Id. at 350, 352. As Abdul-Aziz was 

in TCC for only nine days, dismissal for failure to state a claim was appropriate. 

Furthermore, we agree with the District Court that Abdul-Aziz failed to state a 

claim for violation of his right to due process under the Fourteenth Amendment following

his transfer to TCC. It is well-settled that placement in administrative confinement will 

generally not create a liberty interest. Sandin v. Conner, 515 U.S. 472, 486 (1995); Allah 

v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000). Rather, a “liberty interest only exists if 

that placement is an ‘atypical and significant hardship’ relative to others similarly 

sentenced.” Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002) (quoting Sandin, 515 
5

U.S. at 484). We have previously held that seven months in disciplinary confinement did 

not implicate a liberty interest. Smith v. Mensinger, 293 F.3d 641, 645, 654 (3d Cir. 

2002). Similarly, disciplinary detention for fifteen days and administrative segregation 

for 120 days did not implicate a protected liberty interest. Torres v. Fauver, 292 F.3d 

141, 151-52 (3d Cir. 2002); cf. Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (holding 

that eight years in administrative custody is atypical and implicates a protected liberty 

interest). Here, Abdul-Aziz complained of a due process violation based on nine days in 

TCC. The conditions he complained of reflect typical restrictions in administrative 

custody. We conclude that the duration and conditions of Abdul-Aziz’s segregation 

cannot be deemed atypical. Accordingly, he does not have a protected liberty interest and 

was not entitled to procedural due process protection. 

Similarly, we agree with the District Court that Abdul-Aziz did not have a 

protected liberty interest in the institutional job he lost, and that he accordingly failed to 

state a viable Fourteenth Amendment claim arising from that occurrence. Inmates do not 

have a liberty or property interest in their job assignments that would give rise to Due 

Process Clause protection. James v. Quinlan, 866 F.2d 627, 629-630 (3d Cir. 1989). 

III.

The remainder of Abdul-Aziz’s claims were terminated pursuant to the 

defendants’ motions for summary judgment. We review the District Court’s orders

granting summary judgment de novo and review the facts in the light most favorable to 

the nonmoving party. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). A 
6

grant of summary judgment will be affirmed if our review reveals that “there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). 

Abdul-Aziz claimed that his right to practice his religion was infringed upon by 

NJSP’s refusal to accept donated Halal meats for use in the inmates’ meals, by providing 

“vegetarian” meals that were not actually vegetarian, and by prohibiting inmates from 

possessing prayer oil in their cells. He alleged that Jewish inmates were provided Kosher 

meals for Passover, and Muslim inmates were therefore denied equal protection of the 

law. He claimed that these policies and practices violated his rights pursuant to the First 

and Fourteenth Amendments. 

“Inmates clearly retain protections afforded by the First Amendment, including its 

directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of 

Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). However, an inmate only “retains 

those First Amendment rights that are not inconsistent with his status as a prisoner or 

with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 

417 U.S. 817, 822 (1974). To determine whether a regulation infringing upon 

constitutional rights is reasonable, courts apply the four factors set forth in Turner v. 

Safley, 482 U.S. 78 (1987). These factors require courts to consider: (1) whether the 

regulation bears a ‘valid, rational connection’ to a legitimate and neutral government 

objective; (2) “whether there are alternative means of exercising the right that remain 

open to prison inmates;” (3) “the impact accommodation of the asserted constitutional 
7

right will have on guards and other inmates, and on the allocation of prison resources 

generally;” and (4) “the absence of ready alternatives.” Id. at 89-90; see also Fraise v. 

Terhune, 283 F.3d 506, 513-14 (3d Cir. 2002) (citations omitted). 

With regard to Abdul-Aziz’s Equal Protection claim, “Turner is equally applicable 

[], and the appropriate analysis for this claim is the same as that for [his] Free Exercise 

claim.” DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000). Generally, prison officials 

cannot discriminate against inmates of different religions. Cruz v. Beto, 405 U.S. 319 

(1972) (per curiam). However, an inmate “cannot obtain relief if the difference between 

the defendants’ treatment of him and their treatment of [inmates of another religion] is 

‘reasonably related to legitimate penological interests.’” DeHart, 227 F.3d at 61.

We agree with the District Court that no genuine issue of material fact 

existed in Abdul-Aziz’s claim that NJSP’s policy regarding Halal meats placed a

burden on his religious exercise. Abdul-Aziz claimed that there were donations of 

Halal meat available for Muslim feast days that the prison refused to accept, but 

nothing in the record suggests that the consumption of meat, Halal or otherwise, is 

required for Abdul-Aziz to practice his religion. In his deposition, Abdul-Aziz 

describes Halal food as “pork-free, wine-free, [and] slaughtered properly . . . . 

every day this would be your diet.” Dkt. No. 43-6, at 59. Vegetarian meals satisfy 

these requirements. Review of the record indicates that NJSP cannot accept 

donated meals unless such food is determined to be necessary for the observance 

of a holy day. Id. at 9. Abdul-Aziz has presented evidence establishing only that 
8

any meat eaten by Muslims must be Halal, not that Halal meats must be eaten on 

feast days. Therefore his First Amendment rights were not violated, nor were his 

Fourteenth Amendment rights. Jewish inmates received Kosher meals at Passover 

because they were determined to be necessary for religious observance. Id. 

Because the vegetarian meals did not violate Islam’s proscription on non-Halal 

meat, while non-Kosher meals would not have met the religious requirements of 

Passover, reasonable penological interests were served by the differential

treatment. 

The District Court also correctly determined that no genuine issue of 

material fact existed with respect to Abdul-Aziz’s claim that the vegetarian meals 

served at NJSP actually contained meat. Abdul-Aziz cited a transcript from a 

deposition taken in 2001 and a letter from Schreiber Foods stating that trace 

amount of certain enzymes could be present in School Choice American cheese. 

Dkt. No. 39-2, at 37-39. Review of the record in this case indicates that the 

religious vegetarian meals at NJSP are not contaminated. The DOC Regional 

Food Service Supervisor specified that the religious vegetarian meals at NJSP do 

not contain meat or American cheese. He also indicated that the meals contain 

powder cheddar cheese that is not made with meat. Dkt. No. 43-5, at 2. As 

Abdul-Aziz offered no evidence contrary to this declaration, the grant of summary 

judgment was proper.
9

The final aspect of Abdul-Aziz’s religious claim is that his religious 

exercise was impeded by NJSP’s policy forbidding the possession of oils in cells. 

NJSP forbids oils (including prayer oils) in cells for security reasons. Dkt. No. 43-

3, at 3. Imam Rasoul Suluki, who is permitted to bring such oil into the prison for 

prayer services, stated in his declaration that while prayer oil is a “custom or 

recommended practices,” it “is not part of the Islamic Fard, which is an obligatory 

or mandatory practice.” Dkt. no. 43-4, at 2. Review of the record did not produce 

any evidence suggesting that Abdul-Aziz’s ability to practice his faith was 

restricted or that he was prohibited from practicing his religion in any manner. 

The defendants were therefore entitled to an entry of summary judgment on this 

claim.

Summary judgment in favor of the defendants was also proper as to Abdul-Aziz’s 

claim of that the defendants retaliated against him by placing him in TCC and reassigning 

him to a lower-paying institutional job. Retaliating against a prisoner for the exercise of 

his constitutional rights is unconstitutional. See Rauser v. Horn, 241 F.3d 330, 333–34 

(3d Cir. 2001). A plaintiff in a retaliation case must prove that: (1) he engaged in 

constitutionally protected conduct, (2) “he suffered some ‘adverse action’ at the hands of 

the prison officials”; and (3) “his constitutionally protected conduct was ‘a substantial or 

motivating factor’ in the decision” to take that action. Id. at 333. “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. at 334.
10

Abdul-Aziz filed grievances regarding various matters from March until August 

2008. Dkt. No. 5, at 4-6. On August 15, 2008, prison officials discovered memory cards 

rolled up in Muslim prayer rugs in a common area of the prison. The memory cards were 

confiscated as contraband. On August 18, 2008, Abdul-Aziz told prison officials that the 

memory cards belonged to him. On August 19, 2008, Abdul-Aziz was transferred to 

TCC status. Dkt. No. 43-1, at 29. The defendants argued in their brief that “Plaintiff 

would have been placed in TCC, issued the same disciplinary charge, and treated in the 

same manner even in the absence of his filing grievances and/or complaints.” Id. at 28. 

This statement, along with the chronology following the memory cards’ discovery, 

established a legitimate penological purpose for TCC status, thus precluding the existence 

of a genuine issue of material fact and entitling the defendants summary judgment on this 

claim. 

Likewise, nothing in the record indicates that Abdul-Aziz’s reassignment to a 

lower-paying institutional job was the result of retaliation, as it was also done for a 

legitimate penological purpose. Abdul-Aziz was working as a Forms Room file clerk on 

January 29, 2009, when an NJSP official observed speakers connected to Abdul-Aziz’s 

workstation computer. Music files were stored on the computer, and Abdul-Aziz had 

listened them on at least one occasion. Dkt. No. 82-1, at ¶¶ 32-33. Inmates are not 

permitted to download music or games on the computers. As a result, Abdul-Aziz was 

charged with a disciplinary infraction for misuse of electronic equipment, but it was 

dismissed because he was not served with the charge within the applicable time limit. Id.
11

at ¶ 50. However, following the disposition of any infraction, all inmates must go before 

the Institutional Classification Committee (“ICC”), which may look at the conduct 

underlying the charge regardless of its outcome. Id. at ¶¶ 40-41. The ICC has the 

discretion to reassign an inmate to a different job if it determines that the safety and 

security of the facility will be threatened by returning the inmate to the inmate’s former 

work assignment. Id. at ¶ 43. Abdul-Aziz met with the ICC on February 11, 2009, and 

he was subsequently reassigned from Forms Room clerk to cell sanitation. Id. at ¶ 19. 

This reassignment took place nearly three months after he filed a lawsuit and nearly five 

months after he filed his last complaint. Abdul-Aziz admitted all of the facts mentioned 

above in his counter-statement of facts (Dkt. No. 84-2), and therefore there is no genuine 

issue of material fact as to whether his reassignment served a legitimate penological 

interest. Summary judgment in favor of defendants was therefore appropriate regarding 

this claim as well. 

IV.

There being no substantial question presented on appeal, we will summarily 

affirm.3

 

3

To the extent Abdul-Aziz requests appointment of counsel in his argument in support of 

the appeal, that request is denied.