Nazario Burgos v. Mary Canino

DLD-075 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3443
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NAZARIO BURGOS,
Appellant
v.
MARY CANINO; MARSHALL,
CORRECTION OFFICER; DAY, LIEUTENANT;
LEVI HOSBAND; TONY WOLFE;
CUDDEBACK, CORRECTION OFFICER;
DAVID DIGUGLIELMO; CORRETTE,
CORRECTION OFFICER; LIEUTENANT DOYLE;
LIEUTENANT SMITH; CORRECTION OFFICER CHO;
CORRECTION OFFICER BARRATA;
SCOTT DAVIES
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 06-cv-02497)
District Judge: Honorable Anita B. Brody
____________________________________
Submitted for Possible Dismissal for Jurisdictional Defect
or 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
December 17, 2009
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed: December 23, 2009)
_________
OPINION
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PER CURIAM
Nazario Burgos, proceeding pro se, filed a civil suit pursuant to 42 U.S.C.
§§ 1983, 1985, and 1986 against numerous officials and employees at the State
Correctional Institute at Graterford, where he is a prisoner. He presented claims under the
First, Fourth, Fifth, Eighth, and Fourteenth Amendments. The District Court, ruling on
motions filed by most of the defendants, granted summary judgment on each count in
favor of all defendants but a defendant named Lieutenant Smith. As the footnote to the
District Court’s order reads, “[t]he only remaining defendant is Lieutenant Smith who has
failed to move for summary judgment.” Burgos appeals.
After Burgos filed his notice of appeal, he requested an entry of final judgment
pursuant to Rule 54(b) (actually his request was not a true Rule 54(b) request, but a
request for judgment against the remaining defendant). The District Court denied the
request, noting that Burgos could withdraw his claim against Smith so that he could
proceed with his appeal.
The first issue is whether Burgos’s appeal should be dismissed for lack of
appellate jurisdiction. The answer is no. Although Burgos included claims against Smith
in his amended complaint, Smith was never served with process. See District Court
Docket Entry No. 87 (noting that the summons was returned unexecuted). Because Smith
was not served, he was never a party to the lawsuit within the meaning of Rule 54(b).
See United States v. Studivant, 529 F.2d 673, 675 n.2 (3d Cir. 1976). Accordingly, the

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District Court’s judgment is final (without Burgos withdrawing his claim against Smith),
and we have jurisdiction pursuant to 28 U.S.C. § 1291. See id.
Our review of the District Court’s decision to grant summary judgment is plenary.
See Abramson v. William Paterson College, 260 F.3d 265, 276 (3d Cir. 2001). On
review, we will affirm the District Court’s judgment because no substantial issue is
presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
As the parties are familiar with the facts (which were summarized on pages one
through five of the District Court’s opinion), we will discuss them as they become
relevant to our analysis of Burgos’s claims. We first address his claims of retaliation. To
prevail, Burgos had to prove that the conduct that led to the alleged retaliation was
constitutionally protected. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). He
needed also to show that, at the hands of prison officials, he suffered some adverse action
sufficient to deter a person of ordinary firmness from exercising his constitutional rights.
See id. Burgos also had to prove that his constitutionally protected conduct served as a
substantial or motivating factor for the adverse action. See id. Defendants could rebut by
showing by a preponderance of the evidence that they would have taken the adverse
action even in the absence of the protected activity. See id.
As the District Court did, we accept that Burgos engaged in constitutionally
protected activity when he filed his grievances and helped others file lawsuits and
grievances, but we conclude that his claims fail for other reasons. Burgos contended that

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Scott Davies retaliated against him by requiring him to submit to urinalysis testing and
threatening to issue a misconduct report if he refused to comply. In this case, the one
required urinalysis (also required of many inmates after a report about the odor of
marijuana) was not an adverse action. Also, because threats alone do not constitute
retaliation, the claim relating to the threat failed. See Maclean v. Secor, 876 F. Supp.
695, 699 (E.D. Pa. 1995) (collecting cases). For the same reason, Burgos’s retaliation
claims against Kyungkuk Cho, based on unfulfilled threats, did not survive the motion for
summary judgment.
Burgos also claimed that Lieutenant M. Doyle retaliated against him by denying or
delaying grievances he filed. Doyle presented evidence that he investigated and
responded to complaints and a grievance Burgos filed. Burgos himself submitted the
grievance and the response. Although Doyle rejected the grievance, he provided evidence
that he did so on the basis of an investigation. Doyle also admitted that he filed a late
response to a grievance simply because he forgot to sign a document. Burgos did not
raise a genuine issue of material fact in his opposing declaration relating to reasons for
the rejection of the grievance or any delay in a response. Accordingly, as the District
Court concluded, the claim for retaliation against Doyle also fails.
Burgos also alleged that Michael Baratta refused to provide him cleaning supplies
or to restore running water to his cell after his cell block flooded and the prison cut off
water flow to the affected cells in response. Baratta disputed the claims, and Burgos

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seems to have presented more evidence about his complaints about the water (or lack
thereof in his cell) than about the actual absence of water in his cell. Burgos (Second)
Decl. ¶ 7 & Collins Decl. ¶ 7 (a fellow inmate’s description of Burgos yelling about a
water interruption) & Ex. 2 to Burgos (Second) Decl. (complaining about a four-day
denial of hot water in a grievance filed contemporaneously with the incident). However,
even taking Burgos’s claims as true, under the undisputed circumstances, namely, an
emergency situation within the prison, we agree with the District Court that the temporary
inconveniences Burgos suffered did not amount to retaliation.
Burgos also alleged that Adriano Carrete denied him his one-hour recreation
period, tampered with his food, intercepted his mail, prevented him from subscribing to
the newspaper, and generally threatened and harassed him. As noted above, mere threats
do not constitute retaliation. Furthermore, Burgos did not pursue the mail interception
claim after he mentioned it in his complaint. Even assuming that Carrete deprived Burgos
of his recreation period (a contention that Carrete denied), there is evidence in the record
that for the time period in question, Burgos had ample opportunity to exercise when
Carrete was not on duty, Carrete Decl. ¶ 6; Burgos Dep. 53:15-17, such that any
deprivation caused by Carrete did not rise to the level of an adverse action. Carrete also
stated that he did not tamper with Burgos’s food. Burgos tried to counter that claim by
falsely stating that Carrete did not deny the allegations, Burgos (First) Decl. ¶ 36, and
with the declaration of a fellow inmate. However, the inmate did not aver that Carrete

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tampered with Burgos’s food. Instead, he stated that he once saw Carrete feed an inmate
food with goose feces on it. Collins Decl. ¶ 11. Accordingly, Burgos did not show that
there was a genuine issue of material fact. Similarly, he did not dispute the evidence that
he had a newspaper subscription during the time in question except for the one month.
Rosso Decl. ¶ 4. The defendants also implied that Burgos submitted his cash slip too late
for the newspaper. Id. However, even if Carrete somehow interfered with Burgos’s
submission of his payment for his newspaper subscription, the interference would not
deter a person of ordinary firmness. Accordingly, he did not show that Carrete retaliated
against him.
Burgos’s claims against Mary Canino relate to the disciplinary hearing at which he
was found guilty, based on the urinalysis results, of marijuana use in prison. After
reviewing the evidence in the record, we agree with the District Court that there is no
evidence that Canino’s decisions relating to the proceeding or her ultimate decision that
Burgos was guilty of misconduct were motivated by any animus for Burgos. Similarly,
his retaliation claim against Levi Hosband, Tony Wolfe, CO III Day, and David
DiGuglielmo, who reviewed Burgos’s appeal from the misconduct finding, fails because
Burgos cannot show that these defendants based their decision on anything other than the
hearing record.
Lastly, in regards to retaliation, judgment was properly entered in favor of CO I
Cuddeback because Burgos did not include specific claims against him and conceded that

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he had no claims against him. Burgos Dep. 25:4-8. In short, the District Court properly
entered judgment in favor of all the defendants on the Burgos’s claims of retaliation.
Burgos also asserted that Canino, DiGuglielmo, Hosband, Day, and Davies
violated 42 U.S.C. §§ 1985(2) & (3) and 1986 by intimidating a witness, obstructing
justice, and neglecting to prevent a conspiracy. However, Burgos’s claim of witness
intimidation failed when he admitted that he was not a witness in any civil litigation,
Burgos Dep. 9:1-9. See Malley-Duff & Assoc., Inc. v. Crown Life Ins. Co., 792 F.2d
341, 356 (3d Cir. Pa. 1986) (setting forth the elements of the cause of action). His charge
of obstruction of justice also fell because the evidence on which it was based – a single
incident in which Carrete used of a derogatory term when he told another inmate that the
derogatory term did not describe him, Carrete Decl. ¶ 8 – was not sufficient. See Brawer
v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). His action under § 1985(3) also did not
survive the motion for summary judgment because, against the evidence that the
defendants did not act or conspire to deprive him of his rights, he only presented his
allegations that there was a conspiracy against him. See Fed. R. Civ. P. 56(e)(2);
see also Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (setting forth the requirements
for a cause of action under the statute). Because his claims under § 1985(2) & (3) did not
survive, his claims under § 1986 could not either. See Brawer, 535 F.2d at 841; Rogin v.
Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980).
The District Court properly entered judgment in favor of the defendants on

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Burgos’s claim of a conspiracy under § 1983, too. In response to defendants’ evidence
that they did not agree to deprive him of a constitutional right, Burgos did not offer
sufficient evidence of an agreement. See Parkway Garage, Inc. v. City of Phila., 5 F.3d
685, 700 (3d Cir. 1993), overruled on other grounds, UA Theatre Circuit v. Twp. of
Warrington, 316 F.3d 392 (3d Cir. Pa. 2003). As the District Court concluded, his
unsubstantiated allegations as to most of the defendants, and his claim that a person who
is not a defendant asked Canino not to disclose his urinalysis results for security reasons
(and Canino’s compliance with the request), did not constitute proof of a conspiracy. See
Capogrosso v. The Supreme Court of New Jersey, ___ F. 3d ___, No. 08-3816, 2009 WL
411372, at *2-3 (3d Cir. Nov. 27, 2009). Furthermore, Burgos himself conceded that he
never observed the defendants discussing the issues he raised. Burgos Dep. 33:2-7.
Burgos also sued four defendants for violations of the Eighth Amendment’s
prohibition on cruel and unusual punishment. As the District Court explained in more
detail, even assuming that Burgos was occasionally denied an exercise period by Carrete
when he was in the RHU, he did not suffer cruel and unusual punishment in light of the
evidence of his ample opportunity to exercise, Carrete Decl. ¶ 6; Burgos Dep. 53:15-17.
Any limited deprivation of water and sanitary conditions after a flood at the prison also
did not violate Burgos’s Eighth Amendment rights. See Bell v. Wolfish, 441 U.S. 520,
547 (1979) (advising wise-ranging deference relating to how they resolve problems that
arise in the day-to-day operation of a prison). Furthermore, Burgos’s unsubstantiated

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claim of emotional harm from being yelled at in a humiliating or demeaning manner for
not following orders did not constitute an Eighth Amendment violation.
Burgos also brought an unreasonable intrusion claim under the Fourth Amendment
against six defendants, alleging that he was forced to submit a urine sample for an
unlawful, non-random analysis, the results were used to discipline him, and the
disciplinary sanctions were upheld. As the District Court explained, based on the
evidence in the record, the testing of Burgos’s urine was part of an investigation into drug
use after a prison official smelled marijuana near Burgos’s cell. Given the justification
for the testing, we agree with the District Court that under Bell there was no unreasonable
intrusion or Fourth Amendment violation. We also agree with the District Court that
Burgos’s related state law contract claim relating to the forced testing of his urine is
without merit. Also, as did the District Court, we conclude that he is not entitled to just
compensation under the Takings Clause for the urine used in the uranalysis.
The District Court also properly granted summary judgment in favor of the
defendants on Burgos’s procedural and substantive due process and equal protection
claims. First, Burgos did not suffer an atypical or significant hardship when he served 83
days of a 90-day RHU detention for being found guilty of marijuana use in prison.
See Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997). Moreover, the record is rife
with evidence that Burgos was afforded due process; he was provided with the charges,
he was permitted to retest his urine, and he was made aware of the evidence against him.

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We do not address Burgos’s claims of a First Amendment violation because they were1
only against a defendant that he dismissed from the action and Smith, who was never
served.
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Canino Decl. ¶¶ 4-9. Also, he was permitted to appeal the decision (which was based on
two lab reports indicating marijuana use). Accordingly, the District Court properly
granted judgment in favor of the defendants on Burgos’s procedural due process claims.
As the District Court concluded, the defendants were also entitled to judgment on the
substantive due process claims because not only did Burgos not specifically articulate a
substantive due process claim, but also to the extent that he alluded to one, it was better
considered under other more specific constitutional provisions. See County of
Sacramento v. Lewis, 523 U.S. 833, 843 (1998). Lastly, Burgos’s claim of a violation of1
equal protection, based on a broad allegation and no evidence in the face of the
defendants’ evidence to the contrary, properly did not survive the defendants’ motion for
summary judgment.
In conclusion, for the reasons given above (and for the reasons given by the
District Court), the District Court properly granted summary judgment in favor of the
defendants. Because no substantial issue is raised on appeal, we will summarily affirm
the District Court’s judgment.

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