NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 12

- 1690

__________ JOHN DIAZ,

Appellant
v. MARY CANINO, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS

__________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2

- 08

- cv
- 01033) District Judge: Hon. Cynthia M. Rufe

__________ Submitted under Third Circuit LAR 34.1(a)

October 29, 2012 Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges

.

(Filed : October 31, 2012 )

__________ OPINION OF THE COURT

__________ ALDISERT, Circuit Judge

.2

John Diaz, a prison inmate, appeals from a judgment by the United States District
Court for the Eastern District of Pennsylvania granting a motion under Rule 12(b)(6) , Federal Rules of Civil Procedure . Diaz alleges that Hearing Officer Mary Canino violated his due process rights by denying him a proper misconduct hearing. This appeal requires

us to decide whether Diaz had a liberty interest in avoiding 360 d ay s of disciplinary confinement in a Restrictive Housing Unit (“RHU”) and whether Canino’s participation in Diaz’s misconduct hearing, without more, constitutes sufficient personal involvement

to state a claim against her for alleged liberty deprivations arising after, and apart from, the disciplinary sentence she issued. The District Court held that Diaz failed to state a claim for which relief could be granted because Diaz had no liberty interest in avoiding 360 days of confinement in RHU and he did not allege sufficient personal involvement on the part of Canino to hold her liable for alleged liberty deprivations occurring after the completion of his disciplinary sentence. We will affirm.
I.
Bec ause we write primarily for the parties, who are familiar with the facts and the proceedings in this case, we will revisit them only briefly.
A. On May 16, 2011, Diaz filed a Second Amended Complai nt alleging t he following pertinent facts, which we assume to be true as required when reviewing a district c ourt’s grant of a 12(b)(6) motion to d ismiss. Diaz was an inmate at the Pennsylvania State Correction al Institution in Graterford, Pennsylvania, where he shared a cell with one other inmate. On February 2 0, 2006, Diaz was removed from his cell and placed in RHU because , according to
Correctional Officer Jeffr e y McCusker, an informant stated that Diaz was planning to3

attempt an escape. Upon searching Diaz’s cell, correctional officers found items they
belie ved were consistent with a plan to escape, including a map, a description of inmate processing and a particular type of inmate clothing typically issued to inmates with a
classification different from that of Diaz

. Officer McCusker filed a misconduct repo rt and a copy was given to Diaz on February 28, 2006. The Misconduct Report charged Diaz with various offenses relating

to contr aband, conspiracy, solicitation and escape. In an attempt to prepare for his upcoming disciplinary hearing, Diaz requested a cop y of the Inmate Handbook and an opportunity to go to the law library. His requests were denied. On March 2, 2006, Diaz appeared before Hearin g Officer Cani no. He ple a d ed not guilty to the charges against him but admitted that the clothing found in his cell belonged to him. Diaz explained, however, that many inmates have different colored hats and pants, implying no inference of a plan to escape could be drawn from the clothing found in his cell that was not issued to him by prison authorities . Canino did no t ask Diaz any other substantive questions about the misconduct report n or did she give Diaz an opportunity to call witnesses or pr esent evidence in his defense. She also did not call Officer McCusker as a witness during the hearing but rather interviewed him prior
thereto . Canino never spoke directly with the informant. On March 3, 2006, Can ino found Diaz guilty of all charges against him and

sen tenced him to 360 days in RHU. Can ino did not permit Diaz to present evide nce or witnesses at the hearing . He s pent three days in the RHU at Graterford and was then
transferred to the RHU at the Pennsylvania State Correction al Institution in Smithfield, Pennsylvania. Diaz served the remainder of his 360

- day sentence in the Smithfield RHU.
Diaz contends that , while in RHU he was exposed to “continuous searches” and4

“regular relocation of his cell,” and he “was unable to sleep as a result of the lights that remained turned on.” App. 30. After leaving RHU, Diaz endured “increased scrutiny by correction officers and p rison officials, including but not limited to his cell being relocated on a monthly basis, routine strip

- searches, and [an] inability to participate in certain programs and activities.” 1 App. 31.
B. Alleging the events described above violated his right to due process, Diaz filed
state and federal claims against the Commonwealth of Pennsylvania Department of Corrections and against Canino in her offic ial and individual capacities. The District
Court dismissed all of Diaz's claims. On appeal, Diaz challeng es only one of the
dismissal s: the District Court’s dismissal , under Rule 12(b)(6), of his § 1983 claim against Canino in her individual capacity

. II. The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1343. We have jurisdiction under 28 U.S. C. § 1291. We e xercise plenary review over a district c ourt’s decision to dismiss a complaint for failure to state a claim upon which relief can be granted. Monroe v. Beard , 536 F.3d 198, 205 (3d C ir. 2008). To survive a motion to dismiss, “a complaint mus t contain sufficient factual matter, accepted as true, to state a

1 Diaz’s Second Amended Complaint, filed May 16, 2011, states that “[a]t all relevant and material times, [Diaz] was an inmate either at S CI Smithfield or SCI Graterford.” A pp. 27. Diaz ’s Reply Brief

, filed May 16, 2012 , states that Diaz “continues to suffer on

- going injury because he is forced to endure increased scrutiny . . . .” Appellant’s Reply Brief at 6. It appears , however, that Diaz is no longer at Smithfield or Graterford, but rather Souza

- Baranowski Correctional Center in the Commonwealth of Massachu setts. A pp. 27. As a result, it is unclear whether Diaz intends for us to consider the current conditions of his confinement at Souza

- Baranowski as part of his claim against Canino. This, however, does not affect our analysis . We will therefore refer to Diaz’s allegations as though they concern past rather than ongoing harms.5

claim to relief that is plausible on its face

. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defen dant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted)

. We will “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citations omitted).
III.
The District Court corre ctly dismissed Diaz’s claim against Canino in her individual capacity for failure to state a claim upo n which relief can be granted. It did so in two parts. First, the District Court held that Diaz failed to state a due process claim because, contrary to w hat Diaz alleged, he did not have a liberty interest in avoiding the length and conditions of his confinement in RHU

. Second, as to alleged liberty deprivations occurring after his release from confinement in RHU , the District Court held
that Diaz failed t o allege sufficient persona l involvement on the part of Can ino to state a due process claim against her in her individual capacity.
A. As to the length and conditions of Diaz’s disciplinary confinement in RHU, we agree with the District Court that Diaz f ailed to state a claim upon which relief could be granted because he had no liberty interest in avoiding such confinement. The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty or property, without du e process of law." U.S. Const. a mend. XIV, § 1. When bringing a § 1983 suit based on a violation of this Amendment, plaintiffs must identify or6

allege the deprived protect ed interest. See S ample v. Diecks , 885 F.2d 1099 , 1113 (3d
Cir. 1980). Without the presence of a protec ted interest, a § 1983 due process claim simply cannot stand. See id. Diaz’s suit is not about “life” or “property,” so we consider only whether Diaz’s Complaint alleged a protected “liberty” interest. A liberty interest may arise from the
Constitution it self or “an expectation or interest created by state laws or policies.”
Wilkinson v. Austin , 545 U.S. 209, 221 (2005). Diaz’s Complaint does not mention any state law or policy but alleges that because of an improper misconduct hearing, he was
sentenced to 360 days in RHU, where he was “exposed to continuous searches,” subjected to “regular relocation of his cell,” and “unable to sleep as a result of the l ights that remained turned on.” A pp. 30. This Court , however, has recognized that “ inmates are generall y 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.” Burns v. Pa. Dep’t of Corr

. , 642 F.3d 163, 171 (3d Cir. 2001) (citing Sandin v. Conner , 515 U.S. 472, 483

- 484 (1995) ). Only if the sanction “imposes atypical and significant hardship on the inmate in relation to the or dinary incidents of prison life ” is a protected liberty interest affected. Sandin , 515 U.S. at 484

. Here, we deci de that neither the conditions nor the length of Diaz’s confinement in RHU worked an “atypical and significant hardship” on Diaz so as to deprive him of a protected liberty interest. In Griffin v. Vaughn , 112 F.3d 703, 706 (3d Cir. 1997), we held
that an i nmate confined to the RHU at Graterford for even longer than Diaz

— 15
months

— was not subjected to “atypical and significant hardship” thereby depriving him of a liberty interest. Although Griffin involved an inmate held in “administrative custody” rather th an “disciplinary custody,” see id. (applying the Supreme Court’s7

“atypical and significant hardship” standard to an administrative

- custody case) , the same reasoning has been applied in the disciplinary

- custody context , see Smith v. Mensinger , 293 F.3d 641, 652

- 654 (3d Cir. 2002) (applying the same “ atypical and significant hardship” standard to a disciplinary

- custody case and citing Griffin ) . Additionally, we find nothing in Diaz’s Complaint that allows us to infer that the searches , cell relocation,
and li ghts complained of are “atypical” of “ the or dinary incidents of prison life.” The Complaint simply does not provide any basis by which to compare these conditions with

non
- RHU custody. Accordingly, we hold that the D istrict Court correctly determined that no protected liberty interest was affected by Diaz’s 360

- day confinement in RHU

. B. Nevertheless, Diaz argues that the length and conditions of his RHU confinement do not by themselves define the deprived lib erty interest

. In an effort to bolster his
pos ition that a liberty interest was affected , he contends that deprivations occuring after
his release from RHU should also be considered in his claim against Canino

. We disagree. As Diaz conceded in his Brief , the deprivations that occurred after his releas e from RHU were “ far outside the scope of an original misconduct sentence.” Appellant’s
Re p ly Brief at 6. Canino may not , therefore, be held personally liabl e for such deprivations based solely on her involvement in Diaz’s misconduct hearing . E ven if we fo und such post

- sentence deprivations affected a liberty interest, Diaz failed to allege sufficient personal involvement by Canino to state a claim against her in her individual capacity. Diaz’s Reply Brief relies heavily on the argument that , unlike the pl aintiffs in
Sandin , Griffin , and Smith , he has alleged deprivations “extend[ing] well beyond [his] initial disciplinary hold ” of 360 days. He argues that even once he completed his 360

- day8

sentence and was released from RHU, he continued to “endure increas ed scrutiny” as a result of his “guilty verdict.” 2 He states s uch “ scrutiny ” included “his cell being relocated on a monthly basis, routine strip

- searches, and [an] inability to participate in certain activities.” A pp. 31. In support of the argument that such “increased scrutiny” is “atypical ” and thereby implicates an alleged liberty interest, Diaz points out that Canino ’s
B rief failed to show any “authority allowing [or] permitting continued mistreatment outside of [a n ] RHU hold.” Appellant’s Reply Brief at 6. For the same effect , Diaz also describes the “increased scrutiny” he endured after his release from RHU as “far outside the scope of an original misconduct sentence.” Id. When a plaintiff brings a § 1983 claim against a defendant in his or her ind ividual capacity, the plaintiff must establish that the defendant had “personal involvement” in the alleged wrongs. See Rode v. Dellarciprete , 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, to state a claim against Canino in her individual capacity, Diaz’s Comp laint needed to contain “allegations of personal direction or of actual knowledge and acquiescence.” See

2 We note that Diaz’s Second Amended Complaint states he also “has a protected liberty interest in being free from misconduct reports and disciplinary actions that will ultimately affect the duration of his confinement.” A pp. 33. The Complaint, however, does not actually allege that Diaz’s duration of confinement will be aff ected by his “guilty verdict, ” and more over, does not contain any facts that would support such an allegation. As a result, even if Diaz does have a liberty interest in “being free from misconduct reports and disciplinary actions that will ultimately affect the duration of his confinement,” the District Court’s grant of Defendants’ 12(b)(6) motion was proper. As the Supreme Court stated in Sandin , “[t] he decision to release a prisoner rests on a myriad of considerations.

. . . The chance that a finding of misconduct will alter the balance is si mply too attenuated to invoke the procedural guarant ees of the Due Process Clause.” 515 U.S. at 487

. Lastly, Diaz did not mention this alleged liberty interest to the District Court in his Memorandum of Law in Opposition to Defendants’ Motion to Dismiss , a nd he does not m ention it to this Court in his b riefs on appeal.9

id. When dismissing Diaz’s claim, the District Court noted that “Plaintiff does not allege that Canino had personal involvement in [the post

- sentence deprivations] or that she had any involvement with Plaintiff’s incarceration after she imposed the 360

- day

sentence. ” App. 18. Diaz argues that it was not necessary to allege that Canino was
involved in the post

- sentence deprivations because her involvemen t in his misconduct hearing alone was sufficient to state a claim. We disagree. As stated before, he himself
argues that the alleged post

- sentence deprivations fall “far outside the scope of an original misconduct sentence. ” Appellant’s Reply Brief at 6. T herefore, although Canino found Diaz guilty of misconduct and sentenced him t o 360 days in RHU, she neither directed nor had knowledge of any post

- sentence deprivations Diaz might endure as a
result of a guilty verdict. Without alleging that Canino knew Di az would face “ increased

scru tiny” “far outsid e the scope of t he original misconduct sentence ” rendered by her , or alleging such increased scrutiny is authorized policy , 3 Diaz fails to allege sufficient personal involvement to state a due process claim aga inst Canino in her individual capacity. As the District Court stated, there was other process available to Diaz “to challenge his conditions of confinement at SCI Smithfi e l d . . . against the appropriate prison officials.” A pp. 18.
* * * * *
We hav e considered all of the arguments advanced by the parties and conclude
that no further discussion is needed . The judgment of the District Court will be
AFFIRMED.

3 Indeed, Diaz’s brief states the contrary is true, that there is no “authority allowing [or] permitting” the “mistreatment” he has endured since leaving RHU. Appellant’s Reply Brief at 6

.