ALD-047 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3291

___________

WILLIAM D. TURNER,

Appellant

v.

ATTORNEY GENERAL PENNSYLVANIA; 

SHIRLEY MOORE, SECRETARY OF CORRECTIONS;

ROBERT B. MACINTYRE, CHIEF EXAMINER FOR DEPARTMENT OF 

CORRECTIONS; MICHAEL WENEROWICZ, SUPERINTENDENT SCI 

GRATERFORD; MARY CANINO, GRATERFORD HEARING EXAMINER;

LIEUTENANT MR. KNAPP, AT SCI GRATERFORD; LIEUTENANT JOHN DOE, 

AT SCI GRATERFORD; SERGEANT MR. C. PHIPPS, AT GRATERFORD; 

WENDY SHAYLOR, AT SCI GRATERFORD; MS. T. FANRAK, UNIT MANAGER 

AT GRATERFORD; MS. S. O'MARA, AT SCI GRATERFORD;

JOHN/JANE DOE, ALSO UNIT MANAGER MEDICAL DEPARTMENT 

FOR CORRECTIONS, P.A. AT GRATERFORD DURING SICK CALL;

WHITE MALE NURSE JOHN DOE; STAFF AT SCI MAHANOY, AS WELL AS 

INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; TONY INUZZY;

MARVA CERULLO; PRISON HEALTH SYSTEMS

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:11-cv-01701)

District Judge: Honorable Edmund V. Ludwig

____________________________________

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 21, 2012

Before: SLOVITER, VANASKIE and WEIS, Circuit Judges

(Opinion filed: December 3, 2012)
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_________

OPINION

_________

PER CURIAM.

William D. Turner, a state inmate currently incarcerated at SCI Mahanoy in 

Frackville, Pennsylvania and proceeding pro se, appeals from orders of the United States 

District Court for the Eastern District of Pennsylvania granting Appellees‟ motion to 

dismiss his second amended complaint pursuant to 42 U.S.C. § 1983 and denying his 

post-judgment motions. Because this appeal does not present a substantial question, we 

will summarily affirm the District Court‟s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

I.

Because we write primarily for the parties, we need only recite the facts necessary 

for our discussion. On July 27, 2010, Turner was transferred to SCI Graterford, refused 

to be housed with a cell mate, and received a misconduct write-up from Lieutenant 

Knapp and Sergeant Phipps. After a disciplinary hearing held before Hearing Examiner 

Canino, Turner pled guilty and received thirty days in disciplinary custody. According to 

Turner, this write-up and hearing violated his due process and equal protection rights.

Turner was released from disciplinary custody on August 12 or 13, 2010 and was 

returned to the general population, where he was placed in the top bunk of a double cell 

despite a doctor‟s note in his possession stating that Turner was to have lower bunk 

status. According to Turner, Unit Managers O‟Mara and Fanrak violated his Eighth 
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Amendment right to be free from cruel and unusual punishment by placing him in a top 

bunk. Turner also alleges that he suffered foot and leg injuries and anxiety attacks after 

being placed in a double cell. Furthermore, he argues that nurses John and Jane Doe 

failed to take action despite being presented with his doctor‟s note and that Wendy 

Shaylor violated his rights by stating that such a note was not included in his records at 

SCI Graterford. Finally, Turner alleges that upon his return to SCI Mahanoy, physician‟s 

assistant Inuzzy violated his Eighth Amendment rights by taking away his lower bunk 

status, thereby causing Turner to fall and suffer a torn rotator cuff.

On December 29, 2010, Turner filed this civil rights action in the Court of 

Common Pleas for Montgomery County, Pennsylvania. In March 2011, Appellees filed a 

notice of removal to remove Turner‟s complaint to the District Court. Appellees filed a 

motion to dismiss Turner‟s complaint on March 21, 2011, and approximately a month 

later, Turner filed a motion for leave to file an amended complaint. On May 13, 2011, 

the District Court granted Turner leave to file an amended complaint and denied 

Appellees‟ motion to dismiss without prejudice.

Turner filed his first amended complaint on May 24, 2011. In response, Appellees 

filed a motion to dismiss, which was granted by the District Court on March 20, 2012. 

However, the District Court gave Turner leave to file a second amended complaint by 

April 6, 2012. Turner filed his second amended complaint on April 4, 2012. Appellees 

filed a motion to dismiss for failure to state a claim, and on June 27, 2012, the District 

Court granted Appellees‟ motion and dismissed Turner‟s second amended complaint with 
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prejudice. Turner subsequently filed a motion for judgment on the pleadings relating to 

summary judgment and a motion pursuant to Fed. R. Civ. P. 59(e) to alter or amend the 

judgment, both of which were denied by the District Court on August 3, 2012. Turner 

then timely filed his notice of appeal as to the District Court‟s June 27, 2012 and August 

3, 2012 orders.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise 

plenary review over the District Court‟s dismissal order. See Allah v. Seiverling, 229 

F.3d 220, 223 (3d Cir. 2000). To survive dismissal pursuant to Federal Rule of Civil 

Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, 

to „state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This 

Court affirms a district court‟s dismissal for failure to state a claim “only if, accepting all 

factual allegations as true and construing the complaint in the light most favorable to the 

plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable 

reading of the complaint.” McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir. 

2009). We may affirm the District Court on any basis supported by the record. 

Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011) (citations omitted).

III.

Section 1983 provides private citizens with a means to redress violations of federal 

law committed by state officials. See 42 U.S.C. § 1983. To establish a claim under § 
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1983, a plaintiff “must establish that she was deprived of a federal constitutional or 

statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).

The District Court correctly dismissed Turner‟s claims against defendants 

Attorney General, Moore, MacIntyre, and Wenerowicz for lack of personal involvement. 

Liability under § 1983 cannot be premised on the theory of respondeat superior; instead, 

each individual defendant “„must have personal involvement in the alleged 

wrongdoing.‟” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. 

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)); see also Polk Cnty. v. Dodson, 454 

U.S. 312, 325 (1981). Here, although Turner names the Attorney General, Moore, 

MacInytre, and Wenerowicz as defendants, his second amended complaint fails to 

establish that they personally directed the alleged violations or had actual knowledge of 

the alleged violations and acquiesced to them.

We further agree with the District Court‟s conclusion that the Eleventh 

Amendment provides the Pennsylvania Department of Corrections (“DOC”) defendants 

protection from suit in their official capacities. The Eleventh Amendment protects a state 

or state agency from a federal suit regardless of the relief sought, unless Congress has 

specifically abrogated the state‟s immunity or the state has waived its own immunity. 

MCI Telecomm. Corp. v. Bell Atl.-Pa., 217 F.3d 491, 503-04 (3d Cir. 2001); see also

Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Section 1983 does not abrogate states‟ 

immunity. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). Furthermore, 

“[i]ndividual state employees sued in their official capacity are also entitled to Eleventh 
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Amendment immunity.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d 

Cir. 2010). We have previously noted that the Commonwealth of Pennsylvania has 

expressly withheld its consent to be sued. See Lavia v. Pa. Dep‟t of Corr., 224 F.3d 190, 

195 (3d Cir. 2000); see also 42 Pa. Cons. Stat. § 8521(b). Because the DOC is a part of 

Pennsylvania‟s executive department, its employees share in Eleventh Amendment 

immunity to the extent they are sued in their official capacities. See Will v. Mich. Dep‟t 

of State Police, 491 U.S. 58, 71 (1989); see also Lavia, 224 F.3d at 195.

Turner alleges that Knapp and Phipps violated his right to due process when they 

denied his request for self-confinement under Pennsylvania Department of Corrections 

Administrative Directive (“DC-ADM”) 802 and issued him a misconduct for disobeying 

an order to be housed with a cell mate. He also alleges that Canino violated his due 

process rights during his disciplinary hearing. Although Turner‟s allegations do not 

distinguish between substantive due process and procedural due process, we consider 

each in turn.

Certain fundamental rights are substantively protected by the Fourteenth 

Amendment‟s due process clause. See White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 

1990). A claim alleging a substantive due process violation requires a showing of 

behavior that can “properly be characterized as arbitrary, or conscience shocking.” Cnty. 

of Sacramento v. Lewis, 523 U.S. 833, 847 (1998); see also Newman v. Beard, 617 F.3d 

775, 782 (3d Cir. 2010) (“Conduct can violate substantive due process if it shocks the 

conscience, which encompasses only the most egregious official conduct.”). Here, the 
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District Court properly dismissed Turner‟s substantive due process claim because Knapp, 

Phipps, and Camino‟s conduct was not arbitrary and did not “„shock[] the conscience.‟” 

Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) (quoting United Artists Theatre 

Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003)). It was within 

Knapp and Phipps‟ discretion to deny Turner‟s request for administrative custody and to 

issue a misconduct for disobeying an order and within Camino‟s discretion to determine 

whether Turner was in fact guilty.

Procedural due process protection “for a state created liberty interest . . . is limited 

to those situations where deprivation of that interest „imposes atypical and significant 

hardship on the inmate in relation to the ordinary incidents of prison life.‟” Griffin v. 

Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484 

(1995)). No liberty interest is implicated where the state action does not “present a 

dramatic departure from the basic conditions of confinement.” Sandin, 515 U.S. at 484.; 

see also Burns v. Pa. Dep‟t of Corr., 642 F.3d 163, 171 (3d Cir. 2011) (“[I]nmates are 

generally not entitled to procedural due process in prison disciplinary hearings because 

the sanctions resulting from those hearings do not usually affect a protected liberty 

interest.”). State regulations, such as those contained in DC-ADM 802, own their own do 

not create a due process liberty interest. See Griffin, 112 F.3d at 708. Here, Turner‟s 

thirty-day confinement in administrative custody does not constitute an atypical or 

significant hardship. See id. (“[E]xposure to the conditions of administrative custody for 

periods of as long as 15 months . . . did not deprive [the inmate] of a liberty interest and 
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[] he was not entitled to procedural due process protection.”). Accordingly, the District 

Court correctly dismissed Turner‟s procedural due process claims against Knapp, Phipps, 

and Canino. 

Turner next alleges that he was denied equal protection of the law when he 

received disciplinary custody and when he was assigned a top bunk in a double cell. We 

agree with the District Court that Turner has insufficiently pled this claim because he has 

not provided evidence that he received treatment different than that received by other 

similarly situated individuals. Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003).

Finally, Turner alleges that defendants Shaylor, Farnak, O‟Mara, John Doe, Jane 

Doe, and Inuzzy1violated his Eighth Amendment right to be free from cruel and unusual 

punishment by not providing adequate medical care even though he possessed a doctor‟s 

note stating that he was to have lower bunk status. Specifically, Turner states that he 

suffered physical injuries and anxiety attacks because of this inadequate care.

To plead an Eighth Amendment claim based on medical care, a plaintiff must 

demonstrate that defendants displayed deliberate indifference to a serious medical need. 

Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also White v. Napoleon, 897 F.2d 103, 

108-09 (3d Cir. 1990) (quoting Estelle, 429 U.S. at 103) (“Only „unnecessary and wanton 

 

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 The proper venue for Turner‟s claims against Inuzzy and staff at SCI Mahanoy is the 

United States District Court for the Middle District of Pennsylvania. See 28 U.S.C. § 

1391(b). Although the District Court should have dismissed this claim without prejudice 

to Turner‟s re-filing it in the Middle District of Pennsylvania, we conclude that such error 

is harmless because, as discussed below, Turner‟s claim has no merit.
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infliction of pain‟ or „deliberate indifference to the serious medical needs‟ of prisoners 

are sufficiently egregious to rise to the level of a constitutional violation.”).

With regards to Shaylor, we have previously noted that non-medical officials are 

entitled to rely on medical professionals‟ judgment. See Spruill v. Gillis, 372 F.3d 218, 

236 (3d Cir. 2004) (“[A]bsent a reason to believe (or actual knowledge) that prison 

doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical 

prison official . . . will not be chargeable with the Eighth Amendment scienter 

requirement of deliberate indifference.”); Durmer v. O‟Carroll, 991 F.2d 64, 69 (3d Cir. 

1993). Turner‟s second amended complaint does not plead any facts or present any 

documentation suggesting that Shaylor was aware of the doctor‟s note assigning him to 

lower bunk status; indeed, he seeks to hold Shaylor liable simply for stating that such a 

note was not part of his record at SCI Graterford. Accordingly, the District Court 

properly dismissed Turner‟s claim as to Shaylor.

While a prison official may violate the Eighth Amendment by “intentionally 

interfering with [medical] treatment once prescribed,” Estelle, 429 U.S. at 105 & n.12, 

Eighth Amendment liability cannot be based on simple negligence or lack of due care, 

Farmer v. Brennan, 511 U.S. 825, 835-39 (1994). “It is well-settled that claims of 

negligence or medical malpractice, without some more culpable state of mind, do not 

constitute „deliberate indifference.‟” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). 

Here, Turner‟s second amended complaint fails to establish that Farnak, O‟Mara, John 

Doe, Jane Doe, and Inuzzy were deliberately indifferent to his health. Notably, while 
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Turner has attached a 1996 doctor‟s note assigning lower bunk status that was approved 

by medical staff at SCI Greene, he himself states that a unit manager informed John Doe 

that there was nothing in his medical or prison record at SCI Graterford to indicate that he 

had lower bunk status. Accordingly, the District Court properly dismissed Turner‟s 

Eighth Amendment claims because he did not demonstrate that Farnak, O‟Mara, John 

Doe, Jane Doe, and Inuzzy knew about, let alone disregarded, his lower bunk status.

After the District Court dismissed his second amended complaint with prejudice, 

Turner filed a “Motion for Judgment on the Pleadings Relating to Summary Judgment.” 

Accordingly, the District Court properly denied this motion. Turner also filed a “59(e) 

Motion to alter or Amend Judgment,” alleging that his second amended complaint should 

not have been dismissed because he had demonstrated that the defendants had caused his 

injuries and because the District Court had overlooked some of his claims. However, 

because Turner was requesting relief from the District Court‟s final judgment, the District 

Court properly treated his motion as one pursuant to Fed. R. Civ. P. 60(b) and denied it 

because Turner had not identified the basis for his requested relief. See Ahmed v. 

Dragovich, 297 F.3d 201, 208 (3d Cir. 2002) (courts may construe post-judgment

motions as Rule 59(e) or Rule 60(b) motions).

IV.

For the foregoing reasons, no substantial question is presented and we will affirm 

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6. Turner‟s motion 
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for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 

1993).