NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1131

___________

MICHAEL E. KEELING,

 Appellant 

v.

C.O. BARRAGER; MR. WALSH; MR. MOONEY; MR. ZAKARAUKAS; 

MR. PALL; MR. CIRELLI; MR. MARTIN; MRS. LUCAS; MS. CICERCHIA; 

DR. JESSE; C. J. MCKEOWN; SECRETARY JOHN WETZEL

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. No. 4-11-cv-00365)

District Court Judge: Honorable William J. Nealon

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 17, 2016

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Filed: November 18, 2016)

___________

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

Michael E. Keeling appeals the District Court’s orders granting the prison 

officials’ motion to dismiss and Dr. Jesse’s motion for summary judgment.1 We will 

affirm.

Keeling, a Pennsylvania prisoner, filed suit alleging numerous civil rights 

violations under 42 U.S.C. § 1983. Keeling’s complaint asserted, inter alia, the following 

claims: (1) Defendant Cicerchia retaliated against him for suing her in a separate lawsuit; 

(2) Defendants Cirelli, Pall, Martin, and Zakaraukas retaliated against him for filing a 

grievance against their colleague, Defendant Barrager; (3) while Keeling was in the 

Restricted Housing Unit (“RHU”), prison officials denied him access to portions of his 

legal material, which violated his right to access the courts; (4) his rights to due process 

were violated when prison officials removed his Z-cell status, forcing him to share a cell 

with another prisoner; (5) prison officials wrongfully found him guilty of various prison 

misconducts and sentenced him to up to 90 days in the RHU, in violation of his due 

process rights; and (6) Dr. Jesse, Keeling’s treating-psychologist, violated his Eighth 

Amendment rights and retaliated against him for amending his complaint in a separate 

lawsuit.2 

 

1 We write only for the parties, who are familiar with the facts and the history of this 

lawsuit.

2 Keeling also claimed that Defendant Barrager unlawfully retaliated against him and 

verbally abused him. However, Keeling does not argue on appeal that the District Court 

erred in dismissing those claims. Accordingly, we will not address them here. See

Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002). 
3

The District Court granted the prison officials’ motion to dismiss and Dr. Jesse’s 

motion for summary judgment. Keeling appeals.3

We begin our discussion with the District Court’s order dismissing the retaliation 

claims against the prison officials. In order to state a claim for retaliation for engaging in 

protected conduct, Keeling was required to plead facts showing: (1) he engaged in 

constitutionally protected conduct; (2) he suffered an adverse action at the hands of 

prison officials; and (3) a causal link between the exercise of his constitutional rights and 

the prison officials’ decisions to punish him. Mack v. Warden Loretto FCI, ___ F.3d 

___, 2016 WL 5899173, at *6 (3d Cir. Oct. 11, 2016). 

For the reasons given by the District Court, Keeling failed to state a retaliation 

claim against Defendant Cicerchia. Keeling alleged that she retaliated against him by 

transferring him from A-Block to J-Block for naming her in a lawsuit he had filed 13 

months ago. As the District Court concluded, the allegedly retaliatory transfer was too 

remote in time to infer an unlawful motive, see Watson v. Rozum, ___ F.3d ___, 2016 

WL 4435624, at *3 (3d. Cir. Aug. 23, 2016), and Keeling has not provided any other 

facts linking the transfer to the grievance. 

The District Court was also correct to dismiss Keeling’s retaliation claim against 

Defendant Cirelli, who was assigned to investigate Keeling’s grievance in which he 

claimed that Defendant Barrager had assaulted him. After Cirelli finished investigating 

that grievance, he cited Keeling with a misconduct for lying about the incident. These 

 

3 We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review de novo a 

district court’s orders granting summary judgment and dismissing for failure to state a 

claim. See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). 
4

facts, even if proven true, are insufficient to show causation. Because several months 

passed between Keeling’s filing his grievance against Barrager in March and Cirelli’s 

decision to cite him with misconduct in early June, we agree with the District Court that 

the timing alone was not sufficient to suggest that Cirelli was retaliating. Keeling did 

claim that he had told the truth in his grievance, and that Cirelli wrongly concluded that 

Keeling was lying about Barrager’s conduct. But that fact does not create any inference 

that Cirelli was retaliating against Keeling. Keeling also states, in conclusory fashion, 

that Keeling punished him on account of his grievance, but those conclusory allegations 

are not sufficient to survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). 

For the same reason, the District Court correctly dismissed Keeling’s claim that 

Defendants Pall, Martin, or Zakaraukas retaliated against Keeling for filing grievances 

against Barrager.4 We have already explained that the time between Keeling filing his 

grievance and the Defendants’ decision to cite him with misconduct did not suggest that 

they were retaliating against him. Keeling claims that Defendant Zakaraukas falsely 

alleged that Keeling withdrew one of his two grievances against Defendant Barrager, but 

that Defendants Pall, Martin, and Zakaraukas later investigated the grievance because it 

was not, in fact, withdrawn. Keeling also claims that Zakaraukas never prepared a 

 

4 Keeling presented his factual allegations in a scattershot manner, without regard to 

chronology, and his complaint jumbled together numerous allegations against numerous 

defendants for the same actions. With regard to his misconduct citation, Keeling alleged 

that Defendant Cirelli issued the misconduct. However, in a different portion of his 

complaint, Keeling appeared to allege that Defendants Pall, Marin, and Zakaraukas 

issued the misconduct. We note that in reaching our decision, we have read Keeling’s 

complaint in the light most favorable to him.
5

written recommendation or report denying Keeling’s grievance, and that the Defendants 

did not view the prison security video from every possible angle. None of these 

allegations, however, show any causal link between Keeling exercising his rights to file a 

grievance and the Defendants’ decision to cite him with a misconduct for lying in his 

prison grievance. Therefore, we will affirm the District Court’s dismissal of Keeling’s 

retaliation claims. 

The District Court also correctly dismissed Keeling’s access to courts claim. To 

prove such a claim, Keeling was required to show (1) he suffered an actual injury—that 

is, that he lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and 

(2) he had no other “remedy that may be awarded as recompense” for the lost claim other 

than in the present denial of access suit. Christopher v. Harbury, 536 U.S. 403, 415 

(2005); see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (per curiam). The 

District Court surveyed Keeling’s various other cases and concluded that Keeling had not 

been prevented from actively litigating in any of them. We agree with the District 

Court’s conclusion. 

The District Court also correctly dismissed Keeling’s due process claims because 

it is well settled that he had no protected liberty interest that was implicated by either the 

removal of his single-cell assignment, see generally Rhodes v. Chapman, 452 U.S. 337, 

347-49 (1981), or his short-term placements in the RHU, see Sandin v. Conner, 515 U.S. 
6

472, 486 (1995). Accordingly, we will affirm the District Court’s dismissal of Keeling’s 

claims against the prison officials.5

We will also affirm the District Court’s grant of summary judgment in favor of Dr. 

Jesse. We begin with Keeling’s allegations that Dr. Jesse retaliated against him, by 

ordering the removal of his medication, because he amended his complaint in two other 

lawsuits to add claims against different prison officials, but not her, challenging the 

removal of his single-cell status. Specifically, Keeling claimed that he amended his 

complaints in Keeling v. Damiter, a case he filed in the United States District Court for 

the Western District of Pennsylvania, and in Keeling v. Beggs, which he filed in a court 

in the Commonwealth of Pennsylvania. Dr. Jesse was entitled to summary judgment on 

Keeling’s claims of retaliation because there was no record evidence that she was aware 

that he amended his complaints before she took the challenged action. See Ambrose v. 

Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive that for 

protected conduct to be a substantial or motiv[at]ing factor in a decision, the 

decisionmaker[] must be aware of the protected conduct.”). As the District Court found, 

Keeling amended his complaint in Damiter after Dr. Jesse removed his prescription for 

medication. As a matter of law, she could not have acted to retaliate against before he 

ever exercised his First Amendment rights. Moreover, although Keeling did amend his 

complaint in Beggs several days before Dr. Jesse removed his prescription, and Keeling 

theorized that prison officials “must have” alerted Dr. Jesse to his amended complaint so 

 

5 Because the prison officials were properly dismissed from this case, Keeling’s motion 

to compel their discovery was correctly denied. See Iqbal, 556 U.S. at 686.
7

that she could conspire with them to retaliate against him, that allegation lacks any 

factual support in the record. The only evidence in the record on this point comes from 

Dr. Jesse’s affidavit: She avers that she did not know about Keeling’s litigation, let alone 

that he amended his complaint in Beggs, before making her treatment decision. Dr. Jesse 

was thus entitled to summary judgment because she could not have changed his 

prescription as retaliation for an action about which she was unaware. See Ambrose, 303 

F.3d at 493. 

The District Court also correctly granted summary judgment on Keeling’s claim 

that Dr. Jesse was deliberately indifferent to his serious medical needs. The District 

Court undertook a thorough review of Keeling’s entire treatment history during his 

incarceration. The District Court noted that Keeling had received continuous evaluation 

and treatment for his mental health, and that the treating psychiatrists often reached 

different conclusions about whether Keeling needed psychotropic medication. The 

District Court further explained that Dr. Jesse, after evaluating Keeling several times, 

ultimately concluded that he did not need a prescription for psychotropic medication. As 

the District Court ruled, given Keeling’s extensive treatment record and the record of Dr. 

Jesse’s evaluation and treatment, no reasonable fact finder could conclude that Dr. Jesse 

was deliberately indifferent to Keeling’s serious medical needs. Moreover, Keeling’s 

claim presented, at most, a mere disagreement Dr. Jesse’s treatment decision. That is 

insufficient to survive summary judgment. See Parkell v. Danberg, ___ F.3d ___, 2016 

WL 4375620, at *14 (3d Cir. Aug. 17, 2016). 
8

Accordingly, we will affirm the judgment of the District Court. 6 

 

6

In his opening brief, Keeling complains that the District Court never ruled on his motion 

to amend his complaint. We note that the District Court did, in fact, deny Keeling’s 

motion. We perceive no error in that determination because any amendment would have 

been futile. See Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). We will also affirm 

the District Court’s denial of Keeling’s motion to reconsider its grant of summary 

judgment. Keeling does not challenge that decision in his opening brief beyond his 

arguments discussed above, and we conclude that the District Court did not abuse its 

discretion in denying his motion to reconsider.