NOT PRECEDENTIAL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 days 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.

Because 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 Complaint alleging the following 

pertinent facts, which we assume to be true as required when reviewing a district court’s 

grant of a 12(b)(6) motion to dismiss. 

Diaz was an inmate at the Pennsylvania State Correctional Institution in 

Graterford, Pennsylvania, where he shared a cell with one other inmate. On February 20, 

2006, Diaz was removed from his cell and placed in RHU because, according to 

Correctional Officer Jeffrey McCusker, an informant stated that Diaz was planning to 
3

attempt an escape. Upon searching Diaz’s cell, correctional officers found items they 

believed 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 report and a copy was given to Diaz on 

February 28, 2006. The Misconduct Report charged Diaz with various offenses relating 

to contraband, conspiracy, solicitation and escape. In an attempt to prepare for his 

upcoming disciplinary hearing, Diaz requested a copy of the Inmate Handbook and an 

opportunity to go to the law library. His requests were denied.

On March 2, 2006, Diaz appeared before Hearing Officer Canino. He pleaded 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 not ask Diaz any 

other substantive questions about the misconduct report nor did she give Diaz an 

opportunity to call witnesses or present 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, Canino found Diaz guilty of all charges against him and 

sentenced him to 360 days in RHU. Canino did not permit Diaz to present evidence or 

witnesses at the hearing. He spent three days in the RHU at Graterford and was then 

transferred to the RHU at the Pennsylvania State Correctional 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” and 
4

“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 prison 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 official and individual capacities. The District 

Court dismissed all of Diaz's claims. On appeal, Diaz challenges only one of the 

dismissals: 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 exercise plenary review over a district court’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 Cir. 2008). To survive a motion to 

dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a 

 

1Diaz’s Second Amended Complaint, filed May 16, 2011, states that “[a]t all relevant and 

material times, [Diaz] was an inmate either at SCI Smithfield or SCI Graterford.” App. 

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 Massachusetts. App. 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 defendant 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 correctly dismissed Diaz’s claim against Canino in her 

individual capacity for failure to state a claim upon 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 what 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 to allege sufficient personal involvement on the part of Canino 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 failed 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 due process of law." U.S. Const. amend. XIV, § 1. When

bringing a § 1983 suit based on a violation of this Amendment, plaintiffs must identify or 
6

allege the deprived protected interest. See Sample v. Diecks, 885 F.2d 1099, 1113 (3d 

Cir. 1980). Without the presence of a protected 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 itself 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 lights 

that remained turned on.” App. 30. This Court, however, has recognized that “inmates 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.” 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 ordinary incidents of prison life” is a 

protected liberty interest affected. Sandin, 515 U.S. at 484. 

Here, we decide 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 inmate 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 than “disciplinary custody,” see id. (applying the Supreme Court’s 
7

“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 lights complained of are “atypical” of “the ordinary 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 District 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 liberty interest. In an effort to bolster his 

position 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 release 

from RHU were “far outside the scope of an original misconduct sentence.” Appellant’s 

Reply Brief at 6. Canino may not, therefore, be held personally liable for such 

deprivations based solely on her involvement in Diaz’s misconduct hearing. Even if we 

found 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 plaintiffs 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-day 
8

sentence and was released from RHU, he continued to “endure increased scrutiny” as a 

result of his “guilty verdict.”2 He states such “scrutiny” included “his cell being relocated 

on a monthly basis, routine strip-searches, and [an] inability to participate in certain 

activities.” App. 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 

Brief failed to show any “authority allowing [or] permitting continued mistreatment 

outside of [an] 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 individual 

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 Complaint 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.” App. 33. The Complaint, however, does not 

actually allege that Diaz’s duration of confinement will be affected by his “guilty 

verdict,” and moreover, 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 

simply too attenuated to invoke the procedural guarantees 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, and 

he does not mention it to this Court in his briefs 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 involvement 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. Therefore, although Canino 

found Diaz guilty of misconduct and sentenced him to 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 Diaz would face “increased 

scrutiny” “far outside the scope of the 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 against 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 Smithfield . . . against the appropriate 

prison officials.” App. 18.

* * * * *

We have 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.