Freddie Richardson v. LYDELL SHERRER On Appeal From the United States District Court For the District of…

BLD-266 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1966
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FREDDIE RICHARDSON,
Appellant
v.
LYDELL SHERRER
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.N.J. Civ. No. 06-cv-04699)
District Judge: Jose L. Linares
_______________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 30, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Filed: September 11, 2009)
_________
OPINION
_________
PER CURIAM
Freddie Richardson, an inmate at the Northern State Prison in Newark, New
Jersey, appeals pro se from the District Court’s dismissal of his complaint. Because we

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Richardson also complains that another inmate broke a sprinkler that caused1
Richardson’s cell to fill with water that lingered for two days as “further punishment.”
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conclude that this appeal presents no substantial question, we will summarily affirm. See
3d Cir. L.A.R. 27.4; I.O.P. 10.6
I.
Richardson filed an application to proceed in forma pauperis and a complaint
against Lydell Sherrer, Peggy Brooks, S.C.O. Westry, S.C.O. Rayford, and Sergeant
Nicolai, wherein he claimed that he was subjected to retaliatory discipline, searches, and
harassment, and placed in unsanitary conditions of confinement.
Richardson alleges that, while he working on garbage disposal duty, Westry
harassed him about what she believed to be his unauthorized “headwear.” Westry wrote a
disciplinary report, which was ultimately dismissed. After the dismissal, Richardson
alleges, Rayford and Nicolai placed him in a cold, unsanitary barber shop and strip-
searched him. They then searched his cell and claimed to have found a handcuff key.
Richardson states that he was placed in segregated housing in a cell without running
water until approximately three weeks later when the charges were dismissed.1
Richardson claims that Sherrer, the administrator of the prison, was aware of the
other defendants’ illegal actions, and failed to take any corrective action. He claims that
Brooks, the remedy form coordinator, failed to respond to his numerous remedy forms,
and disclosed information about the remedy forms to the correctional officers who in turn

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The District Court did not reach the issue of whether Richardson had exhausted his2
administrative remedies.
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harassed him. Richardson alleges that Westry initiated the harassment and retaliated
against him by filing a false misconduct report, which resulted in Richardson’s
confinement in segregated housing. He also alleges that Rayford and Nicolai, who were
both present when “the handcuff key was placed in [his] cell,” retaliated against him after
the disciplinary report was dismissed. He seeks compensatory and punitive damages, and
injunctive relief requiring all handcuff keys to be registered and kept in a “specific data
bank.”
The District Court granted Richardson leave to proceed in forma pauperis,
dismissed his Eighth Amendment verbal harassment and Fourteenth Amendment due
process claims with prejudice, and allowed his First Amendment retaliation claim to
proceed. In December 2008, the court granted Sherrer’s and Brooks’ motion to dismiss
for failure to state a claim upon which relief could be granted. In March 2009, the court2
granted the remaining defendants’ motion to dismiss for failure to exhaust administrative
remedies. The court also denied Richardson’s request for appointment of counsel.
Richardson timely appealed.
II.
We exercise plenary review over the District Court’s sua sponte dismissal of
Richardson’s Eighth and Fourteenth Amendment claims under sections 1915(e)(2)(B) and

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1915A(b)(1), see Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), and over the
orders granting the motions to dismiss, see Santiago v. GMAC Mortg. Group, Inc., 417
F.3d 384, 386 (3d Cir. 2005). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In deciding a motion to dismiss, a court must
determine whether the complaint “pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
III.
A. The District Court’s Sua Sponte Dismissal of 8th and 14th Amendment claims
The District Court correctly concluded that Richardson’s claim against Westry and
Nicolai regarding their alleged verbal abuse of him was not viable under 42 U.S.C. §
1983. Richardson alleges only that Westry made “idle threats of verbal harassment,” and
that Nicolai threatened to “shut [him] up” if he was not quiet. Verbal harassment of a
prisoner, without more, does not violate the Eighth Amendment. See, e.g., McBride v.
Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000).
The District Court considered Richardson’s allegation that he was subjected to
false discipline as a Fourteenth Amendment due process claim, and as part of his claim
for retaliation, which we will address separately. The District Court concluded that filing

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false disciplinary charges does not itself violate a prisoner’s constitutional rights, so long
as procedural due process protections were provided. See e.g., Freeman v. Rideout, 808
F.2d 949, 952-53 (2d Cir. 1986) (the filing of false charges does not constitute a claim
under § 1983 so long as the inmate was granted a hearing and an opportunity to rebut the
charges); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984). Richardson does not
allege that he was denied a hearing or an opportunity to present a defense. Therefore, to
the extent Richardson asserts a due process violation, the District Court properly
dismissed his claim.
B. Motion to Dismiss–Sherrer and Brooks
We agree with the District Court that Richardson failed to plead sufficient facts to
demonstrate Sherrer’s and Brooks’ personal involvement in any alleged retaliatory acts
against him. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal
involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Id. Richardson’s allegations against Sherrer–that Sherrer
did not stop to talk to Richardson during rounds, and that Sherrer failed to look into
Richardson’s complaints–do not qualify as “personal direction” or “actual knowledge or
acquiescence.” As the District Court pointed out, Richardson does not explain what
information he communicated to Sherrer, other than that he did not describe “the whole
incident.” Likewise, he does not allege any personal interaction with Brooks, nor does he
provide any descriptions of the remedy forms he claims he submitted. Finally,

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Richardson’s allegation that Brooks notified the other defendants that Richardson had
filed remedy forms, which incited retaliatory actions, does not suffice to show the
“personal involvement” by Brooks in the alleged retaliation.
C. Motion to Dismiss/for Summary Judgment–Westry, Rayford, and Nicolai
The remaining defendants filed a motion to dismiss, or, alternatively, for summary
judgment, on the ground that Richardson had failed to exhaust his administrative
remedies. Under the Prison Litigation Reform Act of 1995 (“PLRA”) a prisoner, prior to
seeking relief in federal court, must properly exhaust all available administrative remedies
at the prison. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006).
“[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).
In support of their motion, defendants attached the three administrative remedy
forms and one inmate request form that Richardson had filed while at Northern State
Prison, none of which relate to the allegations in his complaint. Richardson did not
submit a brief in opposition to the defendants’ motion, and he has not otherwise
addressed the issue of exhaustion or provided evidence that he has complied with the
prison’s grievance procedure. Under the circumstances, we agree that Richardson failed
to exhaust his available administrative remedies.
D. Motion for Counsel
Finally, we consider whether the District Court properly denied Richardson’s

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motion for appointment of counsel. An indigent plaintiff seeking the appointment of
counsel must present a claim having “some merit in fact and law.” Parham v. Johnson,
126 F.3d 454, 457 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
Richardson’s claims lack merit for the reasons already discussed. Additionally, through
his pro se submissions, Richardson has demonstrated an ability to present his case.
Tabron, 6 F.3d at 156. Accordingly, the District Court did not abuse its discretion in
denying Richardson’s motion.
IV.
For the foregoing reasons, we conclude that the appeal presents no substantial
question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d
Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
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