NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-1431 ______________

MUHAMMAD LEACH, Appellant

v.

KATHLEEN BISCOE, Corrections Unit Manager; ROBERT KELLEY, Corrections Food Service Manager; JACOB S. DAVIS, Correctional Food Service Instructor; DIANE DAYA, Correctional Food Service Instructor; NEIL INCH-DIORIO, Correctional Food Service Instructor ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 4-20-cv-01429) District Judge: Honorable Matthew W. Brann ______________

Argued May 16, 2023

Before: SHWARTZ, MONTGOMERY-REEVES, and ROTH, Circuit Judges.

(Opinion filed: November 20, 2023)

Michael A. Fazio Christopher J. Merken Will W. Sachse Dechert 2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104

Simone Hunter-Hobson [ARGUED] University of Pennsylvania School of Law 3400 Chestnut Street Philadelphia, PA 19104

Attorneys for Appellant

Tara J. Wikhian [ARGUED] Pennsylvania Department of Corrections Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050

Attorney for Appellees

______________

OPINION ∗ ______________

MONTGOMERY-REEVES, Circuit Judge.

Muhammad Leach appeals the District Court’s order granting Defendants

summary judgment on the First-Amendment retaliation claim that he brought under

. Because the record contains no evidence that Leach suffered an adverse

action, we will affirm the District Court’s order.

I. BACKGROUND 1

A. Leach Files a Grievance Asserting His Right to Pray at Work

Leach is a devout Muslim incarcerated in the State Correctional Institution at Coal

∗ This disposition is not an opinion of the full court and under I.O.P. 5.7 does not constitute binding precedent. 1 Because Leach appeals the District Court’s grant of summary judgment, we resolve all disputed facts—and draw all reasonable inferences—in his favor. See, e.g., Fed. R. Civ. P. 56(a); DL Res., Inc. v. FirstEnergy Sols. Corp.,

(3d Cir. 2007) (“We

2 Township (“SCI Coal Township”), a prison in the Pennsylvania Department of

Corrections (“DOC”). On September 24, 2019, Leach took a break during his morning

shift at the Dietary Department to pray. Jacob Davis, a Food Service Instructor at SCI

Coal Township, approached Leach and told him that he was not allowed to pray at work.

Leach explained to Davis that, as a Muslim, he needed to pray five times a day at fixed

times. Davis told Leach that he was aware of the tenents of the Muslim faith, but Leach

could not pray at work.

Later that day, Leach submitted a form “asking to be switched to maintenance and

out of the kitchen as soon as possible.” J.A. 303. Prison officials gave Leach an

employment survey and placed him on the waitlist for a job with the Maintenance

Department.

On October 14, 2019, Leach filed a grievance under the DOC’s Inmate Grievance

System (“Grievance No. 829861”). 2 The grievance alleged that “Dietary Supervisors”

violated Leach’s rights under the First Amendment by prohibiting him from praying

during his shift. J.A. 105. Leach explained that because he was “forced to work from

5:00am to 1:00pm,” he needed an accommodation to participate in morning prayer, “the

resolve all factual doubts and draw all reasonable inferences in favor of . . . the nonmoving party.” (citing Hugh v. Butler Cnty. Fam. YMCA,

(3d Cir. 2005))). 2 The Inmate Grievance System is an administrative procedure that allows inmates to grieve “a wide range of issues, procedures, or events that may be of concern.” J.A. 47 § 1(A)(2). It is governed by the rules and procedures stated in DC-ADM 804.

3 most important prayer” of the day. Id. 3

After Leach filed Grievance No. 829861, Neil Inch-Diorio, a Food Service

Instructor at SCI Coal Township, told Leach that “removal from [his] dietary work

assignment [was] warranted” while the grievance was pending. J.A. 291. Leach told

Robert Kelley, a Food Service Manager at SCI Coal Township, that he was afraid that

Inch-Diorio and other staff members would retaliate against him for filing a grievance.

Kelley ordered Leach to stop reporting to work until the grievance was resolved and said

that he would speak to Inch-Diorio, Davis, and other staff members about Leach’s

concerns.

B. Daya Files a False Misconduct Charge Against Leach and Prison Officials Deny Leach’s Initial Grievance

On November 5, 2019, Diane Daya, a Food Service Instructor at SCI Coal

Township, filed a false misconduct charge against Leach under the DOC’s Inmate

Discipline Policy. 4 The charge alleged that Leach violated prison rules by “[r]efusing to

work.” J.A. 108. Daya explained that she had called the “housing unit to see why inmate

Leach didn’t report for work” and was “informed . . . that inmate Leach refused. Inmate

Leach also refused the entire month of October.” Id. Daya recommended that prison

officials handle the charge through the informal resolution process, a procedure reserved

3 Leach clarified that he did not “have any problems with” this schedule, so long as he had an opportunity to pray. J.A. 105. 4 The Inmate Discipline Policy is an administrative procedure that the DOC uses to adjudicate charges that an inmate violated prison rules or regulations. It is governed by the rules and procedures stated in DC-ADM 801.

4 for less serious violations that does not involve a formal misconduct hearing.

At some point, Leach raised concerns about the misconduct charge with Daya.

Daya responded by telling Leach “that since [he] like[s] to file grievances, [he] [would]

have to take the misconduct report up with . . . [Kathleen] Biscoe,” J.A. 292, Leach’s

Unit Manager at SCI Coal Township.

On November 8, 2019, Biscoe held an informal resolution meeting with Leach

about the misconduct charge. During the meeting, Leach asked Biscoe “to dismiss the

misconduct report and to exonerate [him] of the charge of refusal to work.” J.A. 292.

Leach “explained . . . that [he] never refused to work; but instead, . . . Kelley ordered

[him] not to return to work until the issues in [his] grievance were resolved . . . .” Id.

Biscoe contacted Kelley, and he confirmed Leach’s version of events.

Later that day, Biscoe issued an Informal Resolution Action Form stating that she

resolved the misconduct charge with “No Action.” J.A. 109. Leach did not receive any

punishment as a result of this “No-Action” resolution. And the DOC does not consider

charges resolved through the informal resolution process—like Daya’s false misconduct

charge—to denote misconduct for purposes of an inmate’s parole or pre-release. But

Leach’s “block and work reports” continued to indicate that prison officials resolved a

misconduct charge against him with “No Action” through the informal resolution

process. See J.A. 70 § 2(C)(4). 5

5 Leach did not attempt to appeal Biscoe’s “No-Action” resolution under the Inmate Discipline Policy.

5 On November 19, 2019, Kelley issued an Initial Review Response denying

Grievance No. 829861. Among other things, Kelley explained that prison policies did

not allow Leach to pray at work “unless express written permission is granted by the

Facility Manager in consultation with the Religious Services Administrator.” J.A. 104. 6

Leach fully appealed Grievance No. 829861 under the Inmate Grievance System. Prison

officials denied his appeal at each stage, explaining that staff complied with prison

policies and Leach purportedly failed to request an accommodation through the proper

channels.

C. Leach Receives a New Work Assignment and Files a Second Grievance

On February 11, 2020, prison officials approved Leach’s request to work at the

Maintenance Department. Leach’s new role paid $0.42 per hour, the same hourly wage

that he earned with the Dietary Department. But Leach earned less money overall

because he worked one fewer hour per week with the Maintenance Department than he

had worked at the Dietary Department.

About two weeks later, Leach filed a second grievance under the Inmate

Grievance System. This grievance alleged that Kelley, Daya, Inch-Diorio, and Davis

retaliated against Leach for filing his initial grievance (i.e., Grievance No. 829861) “by

removing [him] from [his] dietary work assignment.” J.A. 121. Leach added that his

“current work assignment at electrical maintenance pays less, .42/7 hours, than [his] work

6 While Leach’s appeals were pending, SCI Coal Township “direct[ed] . . . staff to permit inmates to pray.” J.A. 98.

6 assignment [in] dietary.” Id. The grievance did not mention Daya’s false misconduct

charge or Biscoe’s “No-Action” resolution. Indeed, Leach did not even name Biscoe as a

respondent. Prison officials denied Leach’s grievance and he fully appealed that denial

under the Inmate Grievance System.

D. The District Court Grants Summary Judgment

In August 2020, Leach filed a complaint in the United States District Court for the

Middle District of Pennsylvania. The complaint alleged that Leach was entitled to relief

under

because Biscoe, Kelley, Davis, Daya, and Inch-Diorio

(collectively, “Defendants”) violated the First Amendment by retaliating against Leach

for filing grievances. The complaint identified two alleged acts of retaliation: (1) Daya’s

false misconduct charge, which Biscoe resolved with “No Action” under the Inmate

Discipline Policy; and (2) Leach’s reassignment from the Dietary Department to the

Maintenance Department. 7

In July 2021, Defendants moved for summary judgment. Their main argument

was that Leach’s First Amendment retaliation claim failed on the merits because he

7 Leach also alleged that Biscoe’s “No-Action” resolution violated his right to procedural due process under the Fourteenth Amendment. The District Court dismissed this claim under

(e)(2)(B)(ii) because Leach “ha[d] not identified an individual liberty or property interest that was infringed by the informal resolution process he alleges was procedurally deficient.” Leach v. Biscoe, No. 4:20-cv-01429,

, at *6 (M.D. Pa. Feb. 14, 2022). Leach does not raise any issues related to this claim on appeal, so we do not address it. See, e.g., Halle v. W. Penn Allegheny Health Sys. Inc.,

, 230 n.17 (3d Cir. 2016) (“An Appellant waives an argument in support of reversal if he does not raise that argument in his opening brief.” (quoting AT&T Inc. v. FCC,

(3d Cir. 2009), rev’d on other grounds,

(2011))).

7 provided no evidence of adverse action or retaliatory animus. But as a fallback,

Defendants argued that Biscoe was entitled to summary judgment under the Prison

Litigation Reform Act of 1996 (“PLRA”) because Leach failed to exhaust his

administrative remedies before suing her in federal court. See 42 U.S.C. § 1997e(a)

(requiring that a prisoner exhaust available administrative remedies before suing in

federal court).

Leach filed a pro se brief opposing Defendants’ motion for summary judgment.

Among other things, Leach argued that he did not procedurally default on his claim

against Biscoe because the DOC did not make any administrative remedies available for

inmates to challenge a retaliatory misconduct charge resolved with “No Action” under

the Inmate Discipline Policy’s informal resolution process.

In February 2022, the District Court issued a memorandum opinion and order

granting Defendants’ motion for summary judgment. See Leach,

, at

*5–8. The District Court held that Leach “procedurally defaulted on the claim that he was

retaliated against by Daya’s filing of a false misconduct report against him” because he

purportedly failed to properly raise that issue under the Inmate Grievance System. 8

. The District Court then dispensed with Leach’s job-reassignment theory of

retaliation on the merits, holding that Defendants were entitled to summary judgment

8 We express no view on the District Court’s analysis of administrative exhaustion.

8 because Leach failed to provide evidence of retaliatory animus. 9

Leach appeals the District Court’s order granting summary judgment.

II. DISCUSSION 10

Leach’s primary argument on appeal is that the District Court erred by holding

that the PLRA barred his retaliation claim based on Daya’s false misconduct charge

because he failed to exhaust administrative remedies. We need not resolve that issue,

however, because the record contains no evidence that the misconduct charge was an

adverse action.

Leach brings his First Amendment retaliation claim under § 1983, which creates a

private cause of action against persons who, acting under color of state law, deprive “any

citizen of the United States or other person within the jurisdiction thereof . . . of any

rights, privileges, or immunities secured by the Constitution and laws.” To establish a

claim for retaliation, Leach must show that “(1) he was engaged in constitutionally

9 Leach does not raise any issues related to his job-reassignment theory of retaliation on appeal, so we do not address it. See, e.g., Halle,

n.17. 10 The District Court had subject-matter jurisdiction over this case under

. This Court has jurisdiction under

.

We review “a grant or denial of summary judgment de novo, applying the same standard as the District Court.” Pichler v. UNITE,

(3d Cir. 2008) (citing Marten v. Godwin,

(3d Cir. 2007)). “Summary judgment is appropriate if there are no genuine issues of material fact presented and the moving party is entitled to judgment as a matter of law.” DL Res.,

(citing Celotex Corp. v. Catrett¸

, 322–23 (1986)). When determining whether a party is entitled to summary judgment, “[w]e resolve all factual doubts and draw all reasonable inferences in favor of . . . the nonmoving party.”

(citing Hugh,

).

9 protected conduct, (2) ‘he suffered some “adverse action” at the hands of prison

officials,’ and (3) ‘his constitutionally protected conduct was “a substantial or motivating

factor” in the decision’ to take that action.” Wisniewski v. Fisher,

(3d

Cir. 2017) (quoting Rauser v. Horn,

(3d Cir. 2001)).

“An adverse action is one ‘sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights.’” Watson v. Rozum,

, 422 n.6 (3d

Cir. 2016) (quoting Allah v. Seiverling,

(3d Cir. 2000)). To be an

adverse action, the challenged conduct need only cause “more than [a] de minimis”

adverse consequence for a prisoner. Id. at 423 (alterations in original) (quoting McKee v.

Hart,

(3d Cir. 2006))).

On appeal, Leach offers one explanation for how Daya’s false misconduct charge

constituted adverse action: “Biscoe’s ‘no action’ adjudication through the informal

resolution process with respect to the falsified misconduct charge . . . will forever and

always be ‘reflected on [Mr. Leach’s] applicable block and work reports.” Reply Br. 7–8

(alteration in original) (quoting J.A. 70 § 2(C)(4)). 11 Leach speculates that this notation

“could negatively impact his reputation with work supervisors and may fuel [a] false

narrative that [he] is an unreliable worker.” Id. at 8.

When responding to a motion for summary judgment, it is not enough for Leach to

11 Leach concedes that he did not receive any sanction as a result of Daya’s false misconduct charge. Opening Br. 23 (“Leach could not appeal his informal resolution because he did not believe that the sanction was disproportionate to the offense—indeed, he suffered no sanction (other than the recording of the disciplinary action itself).”).

10 offer a plausible argument for how he might have suffered an adverse action. Leach must

point to evidence capable—after “resolv[ing] all factual doubts and draw[ing] all

reasonable inferences in [his] favor,” DL Res.,

(citing Hugh,

)—of supporting a reasonable jury’s verdict that he suffered an adverse action. See

Brightwell v. Lehman,

(3d Cir. 2011) (“A factual dispute is ‘genuine’

and thus warrants trial ‘if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.’” (quoting Anderson v. Liberty Lobby,

,

248–49 (1986))). Thus, Defendants are entitled to summary judgment if Leach adduced

no evidence supporting his theory of adverse action. See

(“[A] complete failure of

proof concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.” (quoting Celotex, 477 U.S. at 322–23)).

Careful review of the record reveals that Leach offered no evidence to support his

theory of adverse action. To show an adverse action, Leach points to a provision of the

Inmate Discipline Policy stating that “informal resolutions . . . should be reflected on

applicable block and work reports.” J.A. 70 § 2(C)(4). This provision supports a

reasonable inference that Leach’s “block and work reports” indicate that prison officials

resolved a misconduct charge against him with “No Action” under the informal

resolution process. It is a step too far, however, to infer that because Leach’s records

continue to show this information, prison officials took or may take actions against him

that would negatively “impact different facets of his life inside the prison.” Reply Br. 8.

And Leach provides no evidence that would enable us to make that inferential leap. For

example, Leach cites no evidence suggesting that prison officials, work supervisors, or

11 other relevant people take an unfavorable view of inmates who have a history of

misconduct charges resolved with “No Action” under the informal resolution process.

Cf. J.A. 241 (Chief Hearing Examiner’s Decl.) (“‘No Action’ in essence means not

guilty.”). Similarly, Leach offers no evidence that prison officials viewed his “No-

Action” resolution as derogatory, or that he suffered—or expects to suffer—any negative

consequence from Biscoe’s “No-Action” resolution. Indeed, the record does not even

contain evidence describing the general information a “block and work report” contains,

who has access to the reports, or how they are used. 12

Accordingly, we hold that the District Court did not err by granting Defendants’

motion for summary judgment. “We may affirm on any basis supported by the record,

even if it departs from the District Court’s rationale.” TD Bank N.A. v. Hill,

(3d Cir. 2019) (citing Erie Telecomms., Inc. v. City of Erie,

, 1089

& n.10 (3d Cir. 1988)). Leach’s First Amendment retaliation claim fails on the merits

because the record contains no evidence that the false misconduct charge was an adverse

action. Thus, Defendants were entitled to summary judgment on this claim. 13

12 Leach’s theory of adverse action also seems to conflict with the undisputed facts. Even after receiving the “No-Action” resolution, Leach got the job he requested in the Maintenance Department. J.A. 274–75. This fact suggests that Leach did not suffer work-related adverse consequences. 13 Our holding today is a narrow one based on the record that the parties presented on appeal. We therefore express no view on whether an inmate could establish that a “No- Action” resolution constituted adverse action by providing evidence of collateral consequences flowing from the applicable notation on their “block and work reports,” such as negative treatment by prison officials, work supervisors, or other relevant people in the prison environment.

12 III. CONCLUSION

For the reasons discussed above, we will affirm the District Court’s order granting

Defendants’ motion for summary judgment.

13