DLD-274 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-2033 ___________

KEITH DAVIS, Appellant

v.

ANTHONY E. EBERLING; LT. HOUSE; CAPTAIN JOHN DOE; J. THOMAS; HEARING EXAMINER S. ELLENBERGER; L. OLIVER DEPUTY SUPERINTENDENT; KEVIN KAUFFMAN SUPERINTENDENT; JOSEPH H. DUPONT, CHIEF HEARING EXAMINER ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil No. 3:18-cv-00314) District Judge: Honorable Richard P. Conaboy ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 26, 2018 Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

(Opinion filed: July 31, 2018) _________

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. Pro se appellant Keith Davis, proceeding in forma pauperis, appeals from the

District Court’s dismissal of his claims against numerous defendants in a civil rights

action brought pursuant to

. For the reasons that follow, we will

summarily affirm the District Court’s judgment with one modification.

I.

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

for our discussion. At the time relevant to his claims, Davis was incarcerated at the State

Correctional Institution in Huntingdon, Pennsylvania.1 Davis alleges the following

account in his complaint. Lieutenant Anthony Eberling issued a misconduct report

involving Davis on April 10, 2017. The report states that Davis passed a knife to another

prisoner, Harris, and then stood by while Harris stabbed another prisoner as they were

waiting in a line. Lieutenant House participated in the investigation leading to the

issuance of the misconduct report.

Hearing Examiner Ellenberger held a disciplinary hearing on the misconduct

charges on April 13, 2017. Davis contended that he was not involved with the stabbing

and requested that the hearing examiner review video footage from that day; he also

requested the presence of three witnesses to testify on his behalf. The hearing examiner

concluded after reviewing video footage that Davis had passed a knife to Harris and then

watched as Harris stabbed another prisoner. The examiner did not allow any of Davis’

requested witnesses to testify because the video footage sufficiently supported the

1 Davis is presently incarcerated at the State Correctional Institution in Houtzdale, Pennsylvania. 2 allegations against Davis. Davis was sanctioned to 135 days in disciplinary confinement.

Davis appealed the guilty finding through the prison administrative appeal

process. A Program Review Committee, Superintendent Kevin Kauffman, and finally

Chief Hearing Examiner Joseph Dupont denied all of Davis’ appeals. The Program

Review Committee included Deputy Superintendents Oliver and Thomas.

In early 2018, Davis filed a complaint in the District Court seeking relief pursuant

to

against defendants Eberling, House, Ellenberger, Oliver, Thomas,

Kauffman, Dupont, and Captain Harris.2 Davis claims that his due process rights were

violated during his hearing because the hearing examiner denied his request to present his

witnesses and supposedly failed to review the video footage of the incident. Davis insists

that he would not have been found guilty if the hearing examiner had viewed the video

footage and maintains that his administrative appeals were wrongly denied. Additionally,

Davis maintains that he was denied access to the courts because he was given inadequate

time and materials to conduct research for his state post-conviction proceedings and

insufficient time to consult with his attorney in those proceedings while he was in

disciplinary confinement.

The District Court screened Davis’ complaint pursuant to

(e)(2)(B)(i) and dismissed all of his claims as frivolous. Davis timely appealed.

II.

2 It appears that Captain Harris reviewed a decision to place Davis into administrative confinement at the completion of his disciplinary confinement term in order to protect him. Davis includes no factual allegations about Harris in his complaint; this information is available only in a prison report that Davis attached to his complaint. 3 We have jurisdiction over this appeal pursuant to

We exercise

plenary review over the District Court’s dismissal of Davis’ complaint as frivolous. See

Tourscher v. McCullough,

(3d Cir. 1999). We review the District

Court’s denial of Davis’ request for appointment of counsel for abuse of discretion. See

Tabron v. Grace,

(3d Cir. 1993). We may summarily affirm a district

court’s decision “on any basis supported by the record” if the appeal fails to present a

substantial question. See Murray v. Bledsoe,

(3d Cir. 2011) (per

curiam).

III.

The District Court properly dismissed all of Davis’ claims. First, Davis failed to

state a due process claim against defendants Eberling, House, and Ellenberger regarding

their involvement in his disciplinary hearing because he was not deprived of a legally

cognizable liberty interest when he was placed in disciplinary confinement. A prisoner

can identify a cognizable liberty interest if a punishment “imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin v. Conner,

(1995). “In deciding whether a protected liberty

interest exists[,] . . . we consider the duration of the disciplinary confinement and the

conditions of that confinement in relation to other prison conditions.” Mitchell v. Horn,

(3d Cir. 2003).

3 Although the District Court dismissed Davis’ complaint without prejudice, because Davis cannot cure the deficiencies in his complaint, as discussed below, the District Court’s order is final within the meaning of

. See Borelli v. City of Reading,

(3d Cir. 1976). 4 Davis has not identified a protected liberty interest. He does not allege that any

conditions of his 135-day confinement in disciplinary custody involved an atypical and

significant hardship. This Court has held that significantly longer stays in restrictive

confinement did not implicate a prisoner’s liberty interests under otherwise similar

circumstances. See Smith v. Mensinger,

(3d Cir. 2002) (concluding

that seven months in disciplinary confinement alone did not violate a prisoner’s liberty

interest); Griffin v. Vaughn,

(3d Cir. 1997) (same for fifteen months in

administrative custody). To the extent that Davis alleged due process claims against

Oliver, Thomas, Kauffman, and Dupont for their handling of his grievances and appeals,

those too fail because access to prison grievance procedures is not constitutionally

required. See Massey v. Helman,

, 647 (7th Cir. 2001) (“[T]he existence of

a prison grievance procedure confers no liberty interest on a prisoner.”). Therefore,

Davis’ due process claims were all correctly dismissed.

Davis’ only remaining claims, that he was denied access to the courts by

seemingly all defendants, also lack merit. Although Davis contends that he had difficulty

conducting sufficient research or getting enough time to speak with his post-conviction

attorney due to his placement in disciplinary confinement, he does not allege that any

defendant had a role in any incident where he sought and was denied research time or

telephone access. Thus, they lacked personal involvement in any underlying civil rights

5 violation.4 See Rode v. Dellarciprete,

(3d Cir. 1988) (“A defendant

in a civil rights action must have personal involvement in the alleged wrongs.”).

Finally, to the extent that the District Court dismissed Davis’ complaint without

prejudice after it additionally held that Davis’ claims were barred by the favorable

termination rule in Heck v. Humphrey,

(1994), we will modify the

judgment to be a dismissal with prejudice. The favorable termination rule in Heck

applies only where prison disciplinary outcomes implicate the fact or duration of a

prisoner’s confinement; here, the discipline imposed on Davis had no bearing on his

underlying conviction or the duration of his sentence. See Muhammad v. Close,

(2004) (“Heck’s requirement to resort to state litigation and federal habeas

before § 1983 is not . . . implicated by a prisoner’s challenge that threatens no

consequence for his conviction or the duration of his sentence.”). Accordingly, Davis’

claims should be dismissed with prejudice, as they lack legal merit and cannot be

salvaged through amendment. See Shane v. Fauver,

(3d Cir. 2000).

In all other respects, we will summarily affirm the dismissal of Davis’ claims.

4 Because Davis’ claims lack arguable merit, the District Court did not err in denying his motion for appointment of counsel. See Tabron,

. We deny his present motion for appointment of counsel for the same reason. 6