ALD-066 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2529

___________

DWAYNE RIECO,

Appellant

v.

C/O MORAN; C/O SMITH; C/O GUSKIEWICZ; 

SERGENT HELSEL; SERGENT ROBERSON; LT. LICKENFELT;

C/O ELK; LT. PEER; LT. BERRY; CAROL A. SCIRE; 

JAMES BARNACLE; CAPTAIN JONES; MARILYN A. FUSCO; 

DEPUTY WOODS; KERRY VANCE; JERRI L. MACKEY, Personal 

Representative and Administratrix of the Estate of Richard Mackey

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-14-cv-00588)

District Judge: Honorable Arthur J. Schwab

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6.

November 24, 2015

Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

(Opinion filed: December 1, 2015)

_________

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.
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Dwayne Rieco appeals from a District Court order granting Appellees’ motion to 

dismiss. Because this appeal presents no substantial question, we will summarily affirm.

Rieco is a Pennsylvania state prisoner housed at SCI-Pittsburgh. He brought a § 

1983 action against the Appellees for their role in an incident involving alleged food 

tampering. He asserts that on February 15, 2014, Appellees Moran, Smith, and 

Guskiewicz gave him a broken food tray containing a fruit cup contaminated with urine 

and a tofu burger containing a “hot and spicy substance.” (D.C. dkt. #5). Rieco asserts 

that he immediately voiced his concern that his food had been tampered with, but that 

Moran, upon returning to collect his tray, slammed it down on Rieco’s arms. Rieco also 

asserts that thereafter Smith issued him with a misconduct citation. Rieco filed 

grievances indicating that he was assaulted and served tampered food. 

Based on these events, Rieco alleges: (i) food tampering and food deprivation, (ii) 

physical assault, (iii) verbal threats and retaliation, (iv) fabrication of a misconduct 

report, (v) improper interference with grievance process, (vi) failure to investigate, (vii) 

denial of access to the courts, and, finally, (vii) denial of medical treatment. The District 

Court dismissed all of Rieco’s claims as to all of the Appellees except Moran, who, Rieco 

asserts, physically assaulted him with the food tray. Rieco later entered into a settlement 

agreement in which he agreed to drop all claims against Moran.

Rieco has appealed the order granting the motion to dismiss. We have jurisdiction 

over this appeal under 28 U.S.C. § 1291. Our review of orders granting motions to 

dismiss is plenary. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We may 
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summarily affirm the District Court’s order where there is no substantial question 

presented by the appeal. Third Circuit LAR 27.4 and I.O.P. 10.6.

The District Court correctly concluded that Rieco failed to state an Eighth 

Amendment claim of food tampering because his Complaint contained no allegation that 

he ate the food, and that doing so caused him to suffer injury. See Robles v. Coughlin,

725 F.2d 12, 15 (2d Cir.1983) (“prison officials may violate the Eighth Amendment by 

serving unsanitary, spoiled or contaminated food if the prisoner also alleges that he or she 

suffered a distinct and palpable injury.”). The Court also correctly concluded that he 

failed to state an Eighth Amendment claim of deprivation of food. While he claims that 

Appellee Helsel failed to provide him with a replacement food tray on February 15, 2014, 

deprivation of a single meal does not rise to the level of an Eighth Amendment violation 

because “only a substantial deprivation of food to a prisoner” states a viable Eighth 

Amendment claim. Lindsey v. O’Connor, 327 F. App’x 319, 321 (3d Cir. 2009). 

The District Court correctly concluded that Rieco did not state a First Amendment 

retaliation claim. Rieco complains that Appellee Guskiewicz tampered with his food on 

February 15, 2014, in retaliation for a grievance that Rieco filed against Guskiewicz five 

months earlier, in September of 2013, in which he alleged assault. An “unusually 

suggestive” proximity in time between the protected activity and the adverse action may 

be sufficient, on its own, to establish the requisite causal connection for purposes of a 

retaliation claim. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997). 

This Court held in Jalil v. Avdel Corp. that the discharge of a plaintiff two days after 
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filing an EEOC complaint was sufficient to establish such causation. 873 F.2d 701, 708 

(3d Cir. 1989). This Court also held that a period of nineteen months between the filing 

of an EEOC claim and the plaintiff being placed on workers compensation leave is 

insufficient to establish such a causal connection. Krouse v. American Stabilizer Co., 

126 F.3d 494, 503 (3d Cir. 1997). A period of five months between constitutionally 

protected activity and an adverse action could establish the temporal proximity required 

to suggest causation for purposes of a First Amendment retaliation claim, but only if the 

plaintiff pleads other facts to demonstrate that he was subject to unfavorable treatment 

during that time period. Marra v. Philadelphia Housing Authority, 497 F.3d 286, 303-05 

(3d Cir. 2007). In Marra, this Court held that, for purposes of a Title VII employment 

discrimination claim, a period of five months between a plaintiff’s trial testimony against 

her employer and subsequent termination was enough to establish causation in a 

retaliation claim because the plaintiff pled that, during that time, her employer harassed 

her in numerous ways. Id. Rieco has failed to plead anything beyond a five-month 

temporal relationship between his grievance against Guskiewicz and the food tampering 

incident. The Court therefore correctly concluded that this is insufficient to establish 

causation and fails to state a retaliation claim.

The District Court correctly dismissed Rieco’s claim that Guskiewicz made 

offensive and threatening comments towards him, reasoning that words alone cannot 

establish an Eighth Amendment claim. See McBride v. Deer, 240 F.3d 1287, 1291 n. 3 

(10th Cir. 2001) (taunts and threats are not an Eighth Amendment violation); Oltarzewski 
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v. Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987) (vulgar language does not give rise to an 

Eighth Amendment violation).

The District Court also correctly dismissed Rieco’s claim that Appellees issued a 

false misconduct report against him. Prison disciplinary proceedings, on their own, do 

not state a claim under § 1983. Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002). A 

claim of a false misconduct report violates an inmate’s First Amendment guarantee of 

access to the courts where it is in retaliation for an inmate’s resort to legal process. Id. A 

claim that an inmate was subject to disciplinary proceedings without due process may 

state a claim under § 1983 as well. Id. Here, Rieco does not assert that the misconduct 

report was filed against him in retaliation for his engaging in any protected activity. He 

claims that he was denied due process, but the District Court correctly concluded that he 

was afforded the opportunity to participate in the misconduct hearing but declined; 

therefore, Rieco’s claims that Appellees Smith and Peer issued a false misconduct report 

against him were properly dismissed. 

The District Court also correctly dismissed Rieco’s claim that Appellee Scire 

obstructed him from utilizing the grievance process because “inmates do not have a 

constitutionally protected right to a prison grievance system.” Jones v. North Carolina 

Prisoners’ Labor Union, Inc., 433 U.S. 119, 137-38 (1977) (Burger, J., concurring).

Rieco’s assertion that Appellees Fusco, Woods and Vance denied him adequate 

law library use does not state a First Amendment access-to-courts claim, as inmates have 

no “freestanding right to a law library or legal assistance,” see Lewis v. Casey, 518 U.S. 
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343, 351 (1996). Moreover, Rieco failed to plead that he suffered “actual injury” as a 

result of this denial. See Peterkin v. Jeffes, 855 F.2d 1021, 1040 (3d Cir. 1988); Lewis, 

518 U.S. at 351 (to succeed on an access-to-courts claim, an inmate must demonstrate 

that the alleged shortcomings in the library or legal assistance program hindered his 

efforts to pursue a legal claim).

Rieco asserts that he was denied medical treatment following Moran’s assault, in 

violation of the Eighth Amendment. The District Court dismissed this claim, reasoning 

that it should properly be considered as part of his excessive force claim against Moran. 

Whether or not we agree with this analysis, Rieco nevertheless failed to state a claim 

because he did not plead what injuries he suffered as a result of this assault. An Eighth 

Amendment claim based on the failure to provide adequate medical treatment requires 

that a prisoner alleges “acts or omissions that evidence deliberate indifference to serious

medical needs.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (emphasis added). 

Rieco has failed to plead what, if any serious medical needs were ignored here. Rieco 

therefore failed to state an Eighth Amendment claim of the denial of medical treatment.

Rieco’s assertions that Appellees Helsel, Lickenfelt and Berry failed to report his 

assault, failed to test his food for human waste and “hot and spicy substance,” and 

refused to allow him to call the Office of Special Investigations and Intelligence, are not 

cognizable claims under § 1983. An allegation of a failure to investigate, without another 

recognizable constitutional right, is not sufficient to sustain a section 1983 claim. Graw 
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v. Fantasky, 68 F. App’x. 378, 383 (3d Cir. 2003). The District Court therefore correctly 

dismissed these claims.

Rieco also brought claims against supervisory Appellees Barnacle, Jones and 

Mackey, but the District Court correctly concluded that, because his claims failed to 

allege their personal involvement in his injuries, he failed to establish supervisory 

liability against these Appellees. The only assertions that Rieco makes regarding these 

Appellees is that Barnacle directs the security officials at SCI-Pittsburgh, that Rieco sent 

Jones an inmate request slip regarding Appellee Lickenfelt’s failure to test Rieco’s 

allegedly tainted food, and that Appellee Mackey erred in his disposition of Rieco’s 

misconduct report. These allegations do not plead the personal involvement required to 

establish supervisory liability in a § 1983 claim. See Rode v. Dellarciprete, 845 F.2d 

1195, 1207 (3d Cir. 1988) (a defendant in a civil rights action must have personal 

involvement in the alleged wrongs; liability cannot be predicated solely on the operation 

of respondeat superior).

Because this appeal presents no substantial question, we will summarily affirm. 

Rico’s motions for equitable tolling and objecting to the clerk’s order assessing fees are 

denied.