CLD-042 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2111 ___________

SHANE HOLLOWAY, Appellant

v.

JOHN WETZEL; LEE ESTOCK ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2:21-cv-00407) District Judge: Honorable Robert J. Colville ____________________________________

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 December 1, 2022

Before: GREENAWAY, JR., MATEY, and FREEMAN, Circuit Judges

(Opinion filed: February 7, 2023) _________

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. Appellant Shane Holloway, an inmate at Pine Grove State Correctional Institution

proceeding pro se and in forma pauperis, appeals from the District Court’s order adopting

the Report and Recommendation (“R & R”) of a Magistrate Judge, which recommended

that defendants’ motion to dismiss be granted. We will summarily affirm.

Holloway filed an in forma pauperis complaint in July 2021 against two

correctional officials. He sought injunctive, declaratory, compensatory, and punitive

relief. Dkt. No. 16 at 3. Holloway alleged that the defendants violated the Eighth

Amendment by activating and then failing to remove the five-flush-per-hour limit on the

toilet in his cell. Dkt. No. 16 at 2-3.

The defendants moved to dismiss for failure to state a claim. Dkt. No. 28. A

Magistrate Judge recommended granting the motion to dismiss and dismissing

Holloway’s complaint with prejudice. Dkt. No. 39. The District Court, over Holloway’s

objections, entered an order adopting the Magistrate Judge’s R & R in its entirety and

granted the defendants’ motion to dismiss. Dkt. No. 51. Holloway filed this timely

appeal. 1

We have jurisdiction under

. We exercise plenary review over

the order dismissing the complaint. Chavarriaga v. N.J. Dep’t of Corr.,

,

1 Holloway also presents a motion for appointment of counsel on appeal.

2 218 (3d Cir. 2015). Upon review, we will affirm because no substantial question is

presented on appeal. See 3d Cir. L.A.R. 27.4.

The District Court correctly concluded that Holloway failed to allege any facts to

constitute a constitutional violation. Holloway’s allegations regarding the hourly flush

limit on his cell’s toilet, the accompanying odor, and the effects on him do not rise to the

level of severity required to show a violation of the Eighth Amendment. See Farmer v.

Brennan,

(1994) (explaining that “the Constitution does not mandate

comfortable prisons” and that prison officials “must ensure that inmates receive adequate

food, clothing, shelter, and medical care”) (internal quotation marks and citation

omitted); Thomas v. Tice,

(3d Cir. 2020) (explaining that although

confinement in a cell without running water for four days was “unpleasant and often

unsanitary,” it did not violate the Eighth Amendment so long as the condition was “not

foul or inhuman” and “supported by some penological justification”). In this case, the

presence of feces in the toilet before the hourly flushing reset created seemingly

unpleasant conditions, but the limit on flushing (which was explained to Holloway

through the grievance process as a penological cost-saving measure used in every cell in

the unit, Dkt. No. 16-1 at 4, 6) did not constitute unconstitutional conditions. To the

extent that Holloway alleged the policy was detrimental to his health, Dkt. No. 16 at 2, he

did not allege it caused or exacerbated any serious medical condition, see Brightwell v.

Lehman,

(3d Cir. 2011) (explaining that a prisoner’s “vague assertions

3 and self-diagnoses” of serious medical needs were inadequate bases for his Eighth

Amendment claim).

Lastly, the District Court did not abuse its discretion in concluding that

amendment was futile. See Grayson v. Mayview State Hosp.,

(3d Cir

2002).

Accordingly, we will affirm the judgment of the District Court. 2

2 Holloway’s motion for appointment of counsel is denied. See Tabron v. Grace,

(3d Cir. 1993).

4