B L D

- 1 3 9 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 21

- 2985

___________ CARLTON THEODORE LANDIS ,

Appellant

v. LIEUTENANT WILSON; LIEUTENANT BEACHEL; LIEUTENANT SCOTT; LIEUTENANT TROUTMAN; LIEUTENANT ORDONEZ; LIEUTENANT SAYLOR; LIEUTENANT LEONAWICZ; WARDEN DAVID J. E BBERT; ASSOCIATE WARDEN COLBERT; NURSE MITTERLING; NURSE DEES; PHYSICIAN ASSISTANT JESSE AYERS; DIRECTOR HUGH HERWITZ; CORRECTION OFFICE R EARP; CORREC TIONAL OFFICER STROUD; IAN CONNORS; FED ERAL BUREAU OF PRISONS; J. KONKLE; J. ENIGK; J. RHODES; J. RAY ORMO ND; B

. LAMMER; C. HURLEY; D. SULLIVA N ; M. HACKENBERG; R. BUFF; B. SHIRK; C. HUGHES; D. HEIM; J. SAVIDGE; K. SOLOMON; S. STABLEWSKI; B SCHNARS; K LYTLE ; D. MENSCH; B. FUNK; J.M. KERSTETTER; K. HAUGER; B

. MATTERN; W. BAUSSAGE; A

. SIMMONDS; D. LAWS; M. VARGES ON; F GONZAR; B. NICKEL; J. ROMIG; K DOWKUS; M

. KEMMERER; N. CARPER; A. CREVELING; M. FAHRINGER; BARTH; A.

DUTTRY; DEREK LONG; and DEBTOR M. BARNER

__ __________________________________ On Appeal from the United States District Court for the Middle Distric t of Pennsylvania (D.C. Civil Action No. 1:19

- cv - 01301 ) District Judge: Honorable Christopher C. Conner

____________________________________ Submitted for Possible Dismissal Pursuant to 2 8 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circui t LAR 27.4 and I.O.P. 10.6 A p r i l 2 8 , 2 0 2 2 Before: M C K E E , G R E E N A W A Y , J R

. a n d P O R T E R , Circuit Judges

(Opinion filed : June 14, 2022 )2 _________ OPINION *

_________ P ER CURIAM Carlton Theodore Landis , an inmate proceeding pro se and in forma pauperis , appeals from the Di strict Court’s order granting defendants’ motion to dismiss and for summary judgment . For the reasons that follow, we will summarily affirm.
I. In July 2019, Landis filed a complaint in the District Court for the Middle District of Pennsylvania alleging tha t defendants 1 violated his First, Fifth, and Eighth Amendment rights , engaged in conspiracy, and committed several torts under Pennsylvania state la w . Specifically, Landis alleged that, on two occasions in January 2018, when he was housed at United States Penitentiary

– Lewisb urg, he was improperly confined using ambulatory and four

- point restraints because he was Black and refused to accept cell assignment s with gang members who expressed violence toward him

. According to Landis, various correctional off icers , prison official s , and healthcare providers conspired to punish him by using the most restrictive form of restraints,

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5. 7 does not constitute binding precedent.

1 In his amended complaint , Landis lists as defenda nts the Bureau of Prisons (“BOP”) and a variety of its employees, including twenty

- five correctional officers, eleven lieutenants, two captains, eight healthcare p r oviders, one health service administrator, one warden and two assoc iate wardens, a regional director, a national appeals coordinator, and the director of the BOP

.3

improperly tightening the restraints , subjecting him to cold temp eratures , causing him to miss meals, denying him access to a restro om, and prolonging his time in restraints by falsifying reports to reflect that he was continuing to act in a disruptive manner

. Defendants filed a motion to dismiss and for summary judgme nt, which the District Court granted

. Landis now appeals.
II. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the grant of a motion to dismiss under Rule 12(b)(6 ) de novo. See Newark Cab Ass ’ n v. City of Newark , 901 F.3d 146, 151 (3d Cir. 2018)

. “To survive a motion to dismiss, a complaint
must contain suffic ient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Santiago v. Warminster Twp. , 629 F.3d 121, 128 (3d Cir. 2010) ( citations and quotation mar ks omitted). We also review the grant of a motion for summary judg ment de novo. Dondero v. Lower Milford Twp. , 5 F.4th 355, 358 (3d Cir. 2021). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact an d the movant is entitled to judgment as a matter of law.”
Fed

. R. Civ. P. 56(a)

. W e may summarily affirm “on any basis supported by the record” if the appeal fails to present a substantial question. See Murray v. Bledsoe , 650 F.3d 246, 247 (3d Cir. 2 011 ) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.4 III.
F irst, we agr ee with the District Court that Landis’s claims against defendants in their official capacities are barred by sovereign immunity. See Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 72 (2001 ). Psychologist Jennifer Enigk was further protected from claims lod ged against her in her individual capacity by statute, 42 U.S.C. § 233(a).
See Hui v. Castaneda , 559 U.S. 799, 805

– 06 (2010) (explaining that members of the Public Health Service ar e imm un e from Bivens 2 claims arising out of the performance of medical fun ctions within the scope of their employment). Dismissal of these claims for lack of subject matter jurisdiction was therefore appropriate. The District Court also properly dismisse d clai ms against former BOP Director Hugh Hurwitz, National Inmate Appeals Administrator Ian Conn o rs, Regional Director J. Ray Ormond, Warden Brian Lammer, Captain John Konkle, Captain Jay Rhodes, and Health Services Administrator Arden Duttry for lack of person al involvement . “A defendant in a civil rights action must have pers onal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior .” Rode v. Dellarciprete , 845 F.2d 1195, 1207 (3d Cir. 1988). While La ndis alleged the existence of a discriminatory practice of using th e harshest restraints on Black inmates in contravention of BOP policies, he failed to allege that the se defendants personally established or maintained this practice, participated i n the vi olation of his rights or

2 Bivens v. Six Unknown Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971)

.5

directed others to do so, or had any knowl edge of their subordinates’ actions. See Santiago v. Warminster Twp. , 629 F.3d 121, 129 n. 5 (3d Cir. 2010). To the extent that
Landis alleged that Lammer, Konkle, Rhodes, and Dut try ac qu iesced to the actions of their subordinates by affirming the use of restraints in their 24

- hour and after

- action reviews, he also alleged that the reports upon which these defendants relied were falsified to make it seem like his behavior warranted the o ng oing use of restraints. Landis failed to allege any personal knowl edge of the falsification of the reports, and thus failed to adequately allege personal involvement by these defendants. Landis’s Eighth Amendment conditions

- of

- confinement claim wa s also p roperly dismissed. 3 To state a conditions

- of

- confinement claim, L andis was required to allege that (1) objectively the conditions were so serious that they constituted a denial of the “minimal civilized measure of life’s necessities,” and (2) su bjectiv el y the prison officials acted with “deliberate indifference.” Farme r v. Brennan , 511 U.S. 825, 833 (1994). We agree with the District Court that Landis failed to state a claim. While prolonged confinement in restraints, exposure to cold temperatures, s ub stantial deprivation of food, and denial of access to a restroom ca n constitute cruel and unusual punishment, the relatively short

- term deprivations suffered by Landis were inadequate to state a claim.

3 The D istrict Court was likely correct in its alternative conclusion that Landis failed to exhaust available administrative remedies for his Eighth Amendment claims. See 42 U.S.C. § 1997e(a) . However, out of an abundance of caution, we address the merits of h i s claims.6

Landis also alleged that his confinem ent constituted e xcessive force. 4 The Eighth Amendment prohibits prison officials f rom unnecessarily and wantonly inflicting pain in a manner that offends contemporary standards of decency. See Hudson v. McMillian , 503 U.S. 1, 8 (1992). When reviewing e xcessive

- force c la ims, we must determine whether the “force was applied in a good

- fai th effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id . at 7. It is undisputed that defendants placed Landis in restraints on two occasions, firs t for 48 hours, then for 72 hours. In their motion for summary judgm ent, defendants provided ample evidence to demonstrate that the restraints were applied in a good

- faith effort to restore discipline. Exhibits document Landis’s history o f disciplinary i nf ractions and the two incidents that triggered the use of restraints , during which Landis failed to comply with cell assignments and threatened to assault staff. Exhibits also reflect that, while Landis was restrained, his demeanor was ev aluated and his re straints adjusted every two hours by prison officers and every four hours by medical personnel. Further, defendants demonstrated that the use of restraints was narrowly tailored; once Landis was calm, the restraints were removed. After defendants succ es sfully made their showing, the burden shifted to Landis to produce sufficient evidence from which a reasonable jury could find that the restraints

4 The District Court dismissed this claim on the basis th at Bivens damages were un available. See Ziglar v. Abbasi , 137 S. Ct. 1843, 1855 (2017). We need not decide whether Bivens is available to Landis because, even if it were, his claims wou ld fail.7

were applied not to restore discipline, but rather to cause him harm. Landis failed to mee t this burden, a nd instead only presented conclusory, self

- serving declarations. 5 Ki rleis v. Dickie, McCamey & Chilcote, P.C. , 560 F.3d 156, 161 (3d Cir. 2009). Thus, defendants were entitled to summary judgment. 6

5 In his argument in support of appeal, Landis maintains tha t he was denied an opport unity to conduct discovery. The record reflects that Landis filed a motion to compel discovery, which the District Court granted in part and denied in part, ord eri ng defendants to send Landis various documents and setting a deadli ne for Landis to serve de fendants with interrogatories. Landis apparently did not receive the District Court’s order and was thus unaware that the deadline had been set. Landis alerted th e District Court that he had not received the order, and the Distri ct Court extended the dea dline and resent the order. It is unclear when Landis received the order, but it appears that he did not send any interrogatories within the allotted time. Sho rtl y after the deadline passed, the District Court granted defendants’ motion to dismiss and fo r summary judgment. The record reflects that Landis received at least some of the discovery he requested after the District Court partially granted his motion to c ompel discovery. However, even assuming arguendo that Landis’s lat e receipt of the District Court’s order precluded him from serving interrogatories and rendered discovery incomplete, the District Court was nonetheless justified in granting summary ju dgme nt. While Landis submitted a declaration explaining his desire for discovery, he failed to specify what information he sought or what facts he hoped to be uncovered through his interrogatories

. Instead, he only stated generally that he wanted to cond uct discovery into the “factual averments” contained in defendants’ mot ion and into the states o f mind of defendants and other unspecified prison officials to show that defendants acted maliciously and sadistically. ECF No. 89

- 1. Because Landis failed to spe cify what information was needed, the District Court was justified in granting summary judgm ent. See Shelton v. Bledsoe , 775 F.3d 554, 568 (3d Cir. 2015) (explaining that summary judgment may be granted even where discovery is incomplete if the declar atio n or affidavit is inadequate, such as where it fails to specify wha t particular information is sought or why it had not been previously secured). 6 Relatedly, the District Court properly dismissed Landis’s conspiracy claims under 42 U.S.C. § 1985(3)

. Land is’s undeveloped allegations, which appear to have been based on hi s own suspici ons rather than on fact, were insufficient to allege a conspiracy. See Young v. Kann , 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991). Because the § 1985(3) claim8

Finally, Landis seeks injunctive and d eclaratory relief to compel defendants to comply with prison policies and relevant laws and to clarify prisoners’ rights related to cell assignments. T he adjudicatory power of a federal court depends upon “the continuing existence of a live and acute cont roversy.” Steffel v . Thompson , 415 U.S. 452, 459 (1974). Landis has not shown the exi stence of an unconstitutional policy or practice, let alone a controversy accompanied by continuing, present adverse effects

. See O’Shea v. Littleton , 414 U.S. 488, 495

– 96 (1974). Manda mu s relief is also inappropriate here , where Landis has failed to est ablish that he has a clear and indisputable right to relief. Stehney v. Perry , 101 F.3d 925, 934 n

. 6 (3d Cir. 1996). 7
IV.

was properly d ismi ssed, so was his claim under § 1986. See Rogin v. Bensalem Twp. , 6 16 F.2d 680, 696 (3d Cir. 1980). Landis also failed to state a due process claim related to being placed in restraints without having been provided with a hearing or other process. Af ter h e was released, defendants conducted disciplinary hearings on his i ncidents of m isconduct and after

action reviews of the use of restraints. The prison grievance procedure was also available for Landis to challenge the application of the BOP’s polici es. These post

- action remedies were adequate to satisfy due process. S ee Zinermon v . Burch , 494 U.S. 113, 132 (1990). Landis’s First Amendment retaliation claim was also properly dismissed, as refusing to accept a cell assignment is not constitutionally prote cted conduct. See Watson v. Rozum , 834 F.3d 417, 422 (3d Cir. 2016 ) (explaining that, to state a retaliation claim, the plaintiff must show that his conduct was constitutionally protected) ; Murray , 650 F.3d at 247 (finding no constitutional right to choos e a cellmate). 7 We have considered Landis’s remaining claims and p erceive no er ror in their disposition by the Dis trict Court.9

Accordingly, we will affirm the judgment of the District Court. S ee 3d Cir. LAR 27.4; I.O.P. 10.6. Landis’s motion for appointment of counsel is denied. His motion to exceed the page limit for his argument in support of appeal is granted.