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- 051 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3291

___________ THOMAS S. WASHAM ,

Appellant

v. SUPERINTENDENT MICHAEL D. KLOPOTOSKI; SERGEANT TURNBAUGH

_________________________ ___________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3:08

- cv - 01082 ) District Judge: Honorable Thomas I. Vanaskie

____________________________________ 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 November 24, 2010 Before: AMBRO, CHAGARES AND NYGAARD , Circuit Judges

(Opin ion filed: December 10, 2010 )

_________ OPINION

_________ PER CURIAM This is an appeal from the District Court‟ s grant of defendants‟ motion for summary judgment . For the following reasons, we will summarily affirm. See 3d Cir.
L. A.R. 27.4; 3d Cir. I.O.P. 10.6.2

In 2008 , Thomas Washam , an inmate at the State Corr ectional Institute at Dallas, Pennsylvania (“ SCI

- Dallas ”), filed a pro se civil rights action in the District Court pursuant to 42 U.S.C. § 1983

. Washam‟s claims stem from an incident in November
2007 , when on the way to the SCI

- Dallas gym, he was told by Correctional Officer Christopher Weaver that he could not enter the gym with the two books he was carrying

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a copy of the Quran and a book on the basics o f Islam . After being refused entry to the gym, Was ham walked towards his housing unit to return the books , when Sergeant Frank Turnbaugh allegedly knocked the books out of Washam‟s hand , slammed Washam to the ground , and handcuffed him

. 1 Weaver filed a m isconduct complaint against Washam, claiming Washam had disobeyed orders to stop walking away from the officers, which is why Turnbaugh responded with force. As punishment for the alleged misconduct, Washa m had to sp end time in the restricted housing unit

. Les s than a week after the incident , Washam filed a grievance against Turnbaugh , and in March 2008 filed a second grievance. B oth grievances were dismissed b ecause inmates are not permitted to file grievances related to disciplinary matters. In his c omplaint, Wa sham alleged that Turnbaugh religiously and racially discrimin ated against Washam, a n African American Muslim. Washam also claimed that Turnbau g h and Superintendent Michael Klopotoski retaliated against Washam for exercising his religious free dom and for filing grievances . Washam further claimed that Turnbaugh used excessive force against him, and that Klopotoski responded with

1 The defendants disputed Washam‟s version of the incident. In a motion for summary judgment, however, we, like the District Court, must take the facts in the light most favorable to Washam. S ee Andreoli v. Gates , 482 F.3d 641, 647 (3d Cir. 2007).3

deliberate indifference to Washam‟s filing of grievances in violation of the Eighth Amendment. In May 2009, the def

endants filed a motion for summary judgment . After further filings in response to the motion by both Washam and the defendants, the Magistrate Judge issued a Report in March 2010, recommending a grant of defendants‟ motion for summary judgment as to all c laims. In July 2010, the District Court adopted the Magistrate Judge‟s Report, and granted the defendants‟ motion for summary judgment. Washam now appeals from the District Court decision. 2 We exercise plenary review over the District Court‟s grant of the defendants‟ motion for summary judgment. See Bouriez v. Carnegie Mellon Univ. , 585 F.3d 765, 770 (3d Cir. 2009). A motion for summary judgment should be granted only if there are no genuine issues of material fact and t he moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party first must show that no genuine issue of material fact exists. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The burden then shifts to the non

- mov ing party to set forth specific fact s demonstrating a genuine i ssue for trial

. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E. , 172 F.3d 238, 252 (3d Cir. 1999 ). “O ur role in reviewing a grant of summary judgment is not to weigh the evidence or to determ ine the truth of the matter, but only to determine whether the evidence of
record is such that a reasonable jury could return a v erdict for the nonmoving party.”

2 We have jurisdiction pursuant to 28 U.S.C. § 12 91, and may affirm the District Court‟s judgment on any basis supported by the record. See Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 1999).4

Reedy v. Evanson , 615 F.3d 197, 210 (3d Cir. 2010) (citation and internal quotations omitted)

. We agree with the District Court that Washam did not come forward with evidence sufficient to create a genuine issue of material fact regarding his religious and
racial discrimination claim

. To bring a successful Equal P rotection claim under § 1983 , a plaintiff must prove the existence of purposefu l discrimination , and demonstrate that he was treated differently from similarly situated individuals

. See Keenan v. City of Phila

. , 983 F. 2d 459, 465 (3d Cir. 1992) ; A ndrews v. City of Phila

. , 895 F.2d 1469, 1478 (3d Cir. 1990). Washam has not come forward with any evidence indicating that Turnbaugh was motivated by religious or racial animus when he knocked books out of Washam‟s hands and slammed Washam to the ground. Although Weaver examined Was ham‟s b ooks and would have know n their religious nature, Turnba ugh was not in direct proximity of the

area of that conversation , and ha d no way of knowing that Washam was carrying religious books. In his opposition to defendants‟ motion for summary judgment,
Was ham explained that he “has a full beard, wears a kufi

- religious Muslim cap and carries a Qur‟an around the Institution , ” and that as a result it would be obvious to Turnbaugh that Washam was Muslim. Even if Turnbaugh did identify Washam as an
African Amer ican Muslim, however, that fact alone does not establish any discriminatory intent on the part of Turnbaugh. The only evidence that could potentially establish a religious or racial motivation is the fact that Turnbaugh was muttering curse words as he
app roached Washam. Nonetheless, Washam could not recall what words were used , and5

there is no evidence that the curse words were racially or religiously offensive. Accordingly, Washam did not present any evidence demonstrating purposeful discrimination, and the District Court properly granted summary judgment on the discrimination claim

. 3 Washam also did not come forward with enough evidence to create a genuine issue of material fact regarding a claim of retaliation. To prov e retaliation , an inmate must sho w: (1) constitutionally protected conduct; (2) an adverse action by prison officials sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a causal link between the exercise of his constitutional rights and ad verse action taken against him. Mitchell v. Horn , 318 F.3d 523, 530 (3d Cir. 2003) ( citation omitted ). Defendants may prevail by proving the same action would have been taken in the absence of the protected activity

. Rauser v. Horn , 241 F.3d 330, 3 34 (3 d Cir. 2001). The basis for Washam‟s retaliation claim is not entirely clear from his filings. To the extent that Washam claims that Tur nbaugh re taliated against him because he exercised his right to freedom of religion, Washam‟s claim fails

. As explain ed above, there is no evidence that Turnbaugh was motivated by any religious animus when he used

3 The Magistrate Judge noted in his Rep ort that Washam also alleged discrimination in not being allowed into the gym because of his Muslim religion. The Magistrate Judge disposed of this claim because Weaver was the officer responsible for preventing Washam from entering the gym, and Weaver wa s not listed as a defendant. Although Washam did list “et. al” as additional defendants in his complaint, his subsequent filings make clear that only Turnbaugh and Klopotoski are the defendants in the case. Accordingly, to the extent Washam alleged a con stitutional violation for not being allowed into the gym, the District Court properly granted the defendants‟ motion for summary judgment.6

force against Washam

. There is also no evidence that Turnbaugh conspired with Weaver

t o file a misconduct report as a way to punish Washam for exercising his constitutional ly protected religious rights. As a result, there is no causal link between Washam‟s practicing of Islam and Turnbaugh‟s actions , and summary judgment was appropriate

. To the extent that Washam claims that either Klopotoski or Turnbaugh ret aliated against him for filing a grievance, Washam‟s claim is also with out merit. Although Washam file d his first grievance within a week of the incident with Turnbaugh, Washam had already been sent to the restricted housi ng unit as punishment , and there is no evidence that the time he was assigned to the restricted housing unit i ncreased after he filed his first grievance. Thus, Washam has no eviden ce that he was punished for exercising his rights under the grievance procedures. Accordingly, the Distric t Court properly granted summary judgment as to the retaliation claim. We also agree with the District Court that Washam did not create a genuine issue of material fact with respect to his claim of excessive use of force against Turnbau g h. The Ei ghth Amendment prohibits prison officials from unnecessarily and wantonly inflicting pain in a manner that offends contemporary standards of decency. See Hudson v. McMillian , 503 U.S. 1, 8

- 9 (1992). When reviewing Eighth Amendment excessive force claims, we must determine whethe r the “ force was applied in a good

- faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 7. Whether the force applied was excessive requires the examination of several factors outli ned by the Supreme Court in Whitley v. Albers , 47 5 U.S. 312, 321 (1986) , including: (1) the need for the application of force; (2) the relationship between the need and the7

amount of force that was used; (3) the extent of injury inflicted; (4) the extent o f the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response. Regarding the first factor, i t is not clea r from the facts in the rec ord whether there

was a need f

o r the application of force. Taking the facts in the light most favorable to Washam, see Andreoli v. Gates , 482 F.3d 641, 647 (3d Cir. 2007), it is unclear whether anyone ever told Washam to stop as he walked towards the housing unit

. According to Washam, Turnbaugh yelled “yo, yo, come here,” and Washam stopped walking and turned towards Turnbaugh. While Turnbaugh‟s yelling in Washam‟s direction may indicate Turnbaugh had a subjective safety concer n about Washam, standing alone it does not indicate that Turnbaugh needed to apply force.
E ven if Turnbaugh did unnecessarily use force , however, in balancing the Whitley factors “there is no constitutional violation for „de minimis uses of physical forc e, provided that the use of force is not of a sort repugnant to the conscience of mankind‟ . . . .” Brooks v. Kyler , 204 F.3d 102 , 107 (3d Cir. 2000 ) (quoting Hudso n , 503 U.S. at 9

- 10). A t most, the only force Turnbaugh utilized was knocking books out of Washam‟s hands, slamming Was ham to the ground , and handcuffing him. Wash am admitted that
his injuries were minimal

– restricted to abrasions on his shoulder and around one knee

. Although de minimis injuries alone are not enough to justify a grant of sum mary judgment on an excessive force claim, in this instance they are indicative of the fact that the force utilized was also de minimis. S ee Brooks , 204 F.3d at 108

- 09. Considering8

there is no evidence in the record to establish that Turnbaugh acted beca use of religious or racial animus, and keeping in mind all the Whitley factors, no reasonable jury could find that the de minimis force utilized by Turnbaugh was “of a sort repugnant to the conscience of mankind” in violation of the Eighth Amendment. Acco rdingly, the District
C ourt properly granted summary judgment as to the claim of excessive force. Finally, Washam also failed to create a genuine issue of material fact with respect to his claim of deliberate indifference. Washam alleged that Klop otoski was deliberately indifferent to plaintiff‟s safety in that Klopotoski failed to appropriately investigate Washam‟s grievances. See Farmer v. B rennan , 511 U.S. 825, 834 (1994) (to prove deliberate indifference, plain tiff must show defendant had a “ „ sufficiently culpable state of mind ‟ ” (quoting Wilson v. Seiter , 501 U.S. 294, 297 (1991)) ). Washam was given fair
access to the grievance procedures, and his grievances were properly dismissed given the prison policy that inmates are not permitted to fil e grievances related to disciplinary

matters. Moreover, Washam was given a chance to present his side of the story at his misconduct hearing. Although Klopotoski did not launch a further investigation , he had no independent obligation to do so. C f. Inma tes of Attica Corr. Facility v. Rockefeller , 477 F.2d 375, 382 (2d Cir. 1973) ( holding inmates failed to state a claim against state officials for failing to investigate or prosecute civil rights violations)

. Accordingly, the District Court properly grant ed the defendants‟ motion for summary judgment as to the
deliberate indifference claim. Because this appeal does not present a substantial question, we will summarily affirm the District Court‟s judgment. See 3d Cir. L.A.R. 27.4; 3 d Cir. I.O.P. 10.6.