ALD-120 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3086 ___________

TONY LEE MUTSCHLER, Appellant

v.

BRENDA LYNN TRITT, Facility Manager; MR. A. KOVALCHIK, Department Superintendent; MS. SHARON LUQUIS, Hearing Examiner; C.O. ALESHESKI; MR. LYNCH, Correction Officer; STARLING; JONES; SHULTZ ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 14-cv-01611) District Judge: Honorable Matthew W. Brann ____________________________________

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 February 28, 2019 Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges

(Opinion filed: April 3, 2019) _________

OPINION * _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Tony Mutschler appeals from an order of the United States District Court for the

Middle District of Pennsylvania, which dismissed his civil rights complaint. We will

affirm the District Court’s judgment.

Mutschler, a Pennsylvania state prisoner, raised claims in his complaint arising

from a prison cell search at the State Correctional Institution in Frackville, Pennsylvania.

On March 23, 2014, two correctional officers searched Mutschler’s cell and confiscated

an “autobiography” written by Mutschler and 48 books which were alleged to be prison

property. Mutschler was placed in restricted housing (the “RHU”). On March 25,

Mutschler was issued a misconduct charging him with possession of contraband (the 48

books). On April 1, the charge was dismissed because the books were determined to be

Mutschler’s personal property. But on the same day, a second misconduct was issued

based on the autobiography, charging that it was contraband, as it constituted sexual

material. 1 Mutschler alleged that Officers Lynch and Alesheski lied by telling the

hearing examiner for the second misconduct that he refused to appear at the misconduct

hearing. Mutschler was found guilty of the second misconduct at a hearing on April 8.

He was sanctioned with 180 days in the RHU.

In his amended complaint (Dkt. #52), Mutschler sued various prison employees,

alleging that he was denied due process (including the right to call witnesses, present

1 Mutschler alleged that he was writing his autobiography to inform the prison’s mental health staff about his background.

2 evidence, and have his case determined on a complete record), that he was denied the

right to be considered for parole, and that prison officials retaliated against him. 2 The

Defendants filed a motion to dismiss; Mutschler did not respond. The District Court

granted the Defendants’ motion and Mutschler timely appealed.

We have jurisdiction under

. We exercise plenary review over

the District Court’s dismissal under Rule 12(b)(6), W. Penn Allegheny Health Sys., Inc.

v. UPMC,

(3d Cir. 2010), and ask whether the complaint contained

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

(2007)).

The District Court properly dismissed Mutschler’s due process claims, as he failed

to allege that he was deprived of a protected liberty interest. Sandin v. Conner,

(1995). Mutschler’s due process claims stem from his disciplinary sanction of

180 days’ confinement in the RHU. In a previous appeal, we noted that Mutschler’s

original complaint did not make out a due process claim, see Mutschler, 685 F. App’x at

170, and his amended complaint similarly does not allege that any conditions of that

confinement involved an atypical and significant hardship sufficient to create a protected

liberty interest, see Sandin,

. We have held that even longer stays in

2 In July 2015, the District Court dismissed Mutschler’s first complaint (and supplement) for failure to state a claim upon which relief could be granted. Dkt. #35. Mutschler appealed and we “affirm[ed] the District Court’s order in large measure,” but vacated the order and remanded so that the District Court could grant Mutschler an opportunity to file an amended complaint. See Mutschler v. Tritt,

(3d Cir. 2017) (per curiam, not precedential) (C.A. No. 15-2832). On remand, Mutschler filed the amended complaint we consider here. 3 restrictive confinement under otherwise similar circumstances did not implicate a

prisoner’s liberty interests. See Smith v. Mensinger,

(3d Cir. 2002)

(seven months in disciplinary confinement). To the extent that Mutschler raised due

process claims based on the Defendants’ 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.”).

To the extent he asserts that a loss of parole resulted from the misconduct charge,

Mutschler similarly was not deprived of a protected liberty interest. A “protected liberty

interest may arise from only one of two sources: the Due Process Clause or the laws of a

state.” Asquith v. Dep’t of Corr.,

, 409 (3d Cir. 1999). The United States

Constitution does not itself establish a liberty interest in parole. Newman v. Beard,

(3d Cir. 2010). And in Pennsylvania, “a prisoner does not have a protected

liberty interest, or due process rights, in parole until the inmate is actually released on

parole.” Nieves v. Pa. Bd. of Prob. & Parole,

(Pa. Commw. Ct. 2010),

aff’d,

(Pa. 2011) (per curiam). See also Fantone v. Latini,

(3d Cir. 2015) (concluding that an inmate did not have protected liberty interest

where he was confined in RHU for 35 days, which caused the state parole board to

rescind his parole grant, as those factors “did not, either alone or in combination, create

atypical and significant hardship in relation to the ordinary incidents of prison life”).

4 Mutschler also failed to adequately plead a retaliation claim. Mutschler was

required to allege that the conduct provoking the alleged retaliation was constitutionally

protected, that he suffered some “adverse action” at the hands of the prison officials

“‘sufficient to deter a person of ordinary firmness from exercising his [constitutional]

rights,’” and that the constitutionally protected conduct was a substantial or motivating

factor in the defendants’ conduct. Rauser v. Horn,

(3d Cir. 2001)

(alteration in original) (quoting Allah v. Seiverling,

(3d Cir. 2000)).

Mutschler’s allegation that he “signed [a] sworn statement” against one of the Defendants

in a civil suit arguably meets the requirement of showing that he engaged in

constitutionally protected conduct. But his amended complaint did not contain any

information about when that occurred, and whether or how that might have motivated

two other Defendants to alter Mutschler’s “autobiography” in retaliation. 3 Further,

Mutschler did not provide any information that would allow a factfinder to conclude that

the adverse action that he suffered (being found guilty of a misconduct and serving 180

days in the RHU) occurred for some retaliatory reason, rather than for his possession of

sexually explicit material.

Finding no substantial question presented by this appeal, we will affirm the

District Court’s judgment. See Murray v. Bledsoe,

(3d Cir. 2011) (per

curiam); see also 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

3 Mutschler alleged that the officers deliberately left off the first page of his autobiography, which explained why he was writing the story. Mutschler did not allege that prison mental health officials asked him to write the story as part of a treatment plan. 5