2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 203 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 4125

___________ LINWOO D WILKERSON , Appellant

v. CHARLES E. SAMUELS, JR., Director, Federal Bureau of Prisons; SM OKER, Correctional Officer, LSCI

- Allenwood; SOLOMO N, Factory Manager, LSCI

- Allenwood

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 12

- cv - 01462 ) District Judge: Honorable Robert D. Mariani

____________________________________ Submitted for Possible Dismissal Pursu ant to 28 U.S.C. § 1915(e)(2) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 April 18, 2013 Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges (Opinion filed : May 3, 2013 )

_________ OPINION

_________ PER CURIAM Pro se Appellant Linwood Wilkerson , a federal inmate, appeals the District Court’s ord er dismissing his civil rights suit seeking compensatory and punitive damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S.2 388 (1971), as well as his claims for a hostile work environment, sexual harassment, and retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

. For the reasons that follow, we will affirm in part, vacate in part, and remand the matter

. We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court ’s dismissal of the complaint under 28 U.S.C. § 1915(e)(2)(B )(ii) for failu re to state a claim is plenary. See Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000). In his Bivens action, Wi lkerson alleged that Appellee Smoker , a supervisor in the
UNICO R f actory in which Wilkerson worked at the Low Security Co rr ectional Institution Allen wood (“LSCI Allenwood”), verbally harassed him. In response, Wilkerson file d a hostile work environment complaint with prison officials. He maintain ed that the complaint was ignored and that Smoker retaliated by filing a false
i ncident report against him, resulting in disciplinary proceedings ; Wilkerson was found guilty of the incident and lost his UNICOR job for six months . H e also alleged that he

was transferred to a higher custody institution as a result of the disciplinary p roceedings

. “A Bivens action, which is the federal equivalent of the § 1983 cause of action against state actors, will lie where the defendant has violated the plaintiff’s rights under color of federal law.” Brown v. Philip Morris Inc. , 250 F.3d 789, 800 (3d Cir. 2001)

. T o sustain a retaliation claim under Bivens , an inmate must demonstrate that (1) he engaged in constitutionally protected conduct; (2) he suffered adverse action; and (3) the constitutionally protected conduct was “a substantial or motiva ting factor” for the adverse
response. See Carter v. McGrady , 292 F.3d 152, 157

- 58 (3d Cir. 2002) ; see also Rauser3 v. Horn , 241 F.3d 330, 333 (3d Cir. 2001)

. The District Court determin ed that Wilkerson’s Biven s claim was barred under Heck v. Humphrey , 512 U.S. 477 (1994) , and Edwards v. Balisok , 520 U.S. 641, 646

- 47 (1997). In Heck , the Supreme Court held that a prisoner may not p ursue a § 1983 action which would implicitly question the validity of the conviction or duration of sentence , unless first d emonstrating that the conviction or sentence has already been invalidated. Heck , 512 U.S. at 486

- 87. T he Court extended Heck ’s “favorable termination” rule to prison disciplinary sanctions which alter the duration of a prisoner’s term of incarceration. Edwards , 520 U.S. at 646

- 48

. The rule does not , however, bar a prisoner from bringing an action which do es not implicate the fact or duration of confinement.
See Muhammad v. Close , 540 U.S. 749, 751 (2004); Peralta v. Vasquez , 467 F.3d 98, 104 (2d Cir. 2006 )

. While we agree with the District Court that a favorab le outcome on Wilkerson’s claim would necessaril y imply the invalidity of the disciplinary proceedings , it would not invalidate the underlying conviction or sentence and , therefore , is not barred under Heck or Edwards

. T he sanc tions imposed as a result of the disciplinary proceedings di d not affect the duration of Wilkerson’s sentence, only the location where it was to be served. Accordingly, the c laim could not be dismissed on this basis.
We also disagree with t he District Court ’s a lternative ground for dismissal that the retaliation claim was time barred. The basis of the retaliation claim is not the comments which allegedly led to the false misconduct report , but the report itself which was made on Octobe r 21 , 2010 , and resulted in the disciplinary proceeding ; t he complaint was filed4 on July 30, 2012, within the two year statute of limitations. See 42 Pa

. Cons. Stat. Ann. § 5524 (two

- year statute of limitations for personal injury actions) ; s ee also Napier v. Thirty or More U nidentified Fed

. Agents , 855 F.2d 1080, 1087 n.3 (3d Cir. 1988) ( Bivens actions governed by forum stat e ’s statute of limitations for personal injury actions). Wilkerson’s allegation that he was falsely charged with mi sconduct in retaliation for filing complaints against Smoker may state a co gnizable First Amendment claim

. See Mitchell v. Horn , 318 F.3d 523, 530 (3d Cir. 2003) ; see also Sprouse v. Babcock , 870 F.2d 450, 452 (8th Cir. 1989) (citing cases). Although Wil kerson has no constitutional right to his job, Rhodes v. Chapman , 452 U.S. 337, 348 (1981), and no constitutionally protected lib erty interest in being incarcerated in any particular prison , see Olim v. Wakinekona , 461 U.S. 238, 245 & n. 6 ( 1983 ) , retalia tion for the exercise of his constitutional right is itself a violation of the Constitution. See White v. Napoleon , 897 F.2d 103, 111

- 12 (3d Cir. 1990). Although Wilkerson’s retaliation claim may ultimately
not succeed on the merits , 1

The District C ourt properly dismissed Wilkerson ’s Title VII claims

. In determining whether Title VII protections apply, the focus is on the employment relationship. See Ne lson v. Upsala College , 51 F.3d 383, 387 (3d Cir. 1995). It is well it was improperly d ismissed under § 1915(e)(2)(B)(ii) for the reasons stated by the District Court

.

1 It is unclear whether Wilkerson exhausted his administrative remedies as required under 42 U.S.C. § 1997e(a)

. See Nyhiu s v. Reno , 204 F.3d 65, 69 (3d Cir. 2000) (t he P LRA’s exhaustion requirement applies to federal pris oners seeking5 established that a prisoner is not an employee under the Fair Labor Standards Act (FLSA) , because the relationship is not one of employment, but arises out of the prisoner’s status as an inmate

. See Tourscher v. McCullough , 184 F.3d 236, 243 (3d Cir. 1999) ; see also Vanskike v. Peters , 974 F.2d 806, 809 (7th Cir. 1992). Similarly, for purposes of Title VII, Wilkerson’s relationship with UNICOR is one of a prisoner, not an employee. See Williams v. Meese , 926 F.2d 994 , 997 (10th Cir. 1991); see also E.E.O.C.
Dec. No

. 86

- 7, *3, 40 Fair Empl. Prac. Cas. (BNA) 1892 (1986) (finding no employment relationship between the prison and prisoner under Title VII, noting that the primary purpose of t heir association was incarceration, not employment). Accordingly, he cannot claim the protections afforded under Title VII. For the for e going reasons, we will summarily affirm the District Court’s order as to the Tit le VII claims, summarily vacate the Di strict Court’s order as to the dismissal of the Biven s claim , and remand the matter for proceedings consistent with this opinion.

relief through a Bivens action)

. On remand, the District Court may wish to consider whether Wilkerson has complied with the exhaustion requir ements.