Archie Tindell v. Jeffrey Beard

ALD-028 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3063
___________
ARCHIE TINDELL,
Appellant
v.
JEFFREY BEARD; HARRY WILSON; LINDA HARRIS;
SCOTT NICHOLSON; MR. MANCHEZ; CAPT. LEGGETT; A. CRUMB;
G. KEPOSKY; ROBERT TRETINIK; MICHAEL HERBIK; THE STATE
CORRECTIONAL INSTITUTION AT FAYETTE; SGT. RUVO; KERRI KROSS;
JOSEPH DUPONT; CORRECTIONS OFFICER CADWELL
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-cv-01230)
District Judge: Honorable Terrence F. McVerry
____________________________________
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
October 29, 2009
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: November 10, 2009 )
_________
OPINION
_________
PER CURIAM
Archie Tindell, an inmate at the State Correctional Institution at Fayette, appeals

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from orders by the District Court granting defendants’ motions to dismiss and for
summary judgment. For substantially the same reasons as given by the District Court, we
will affirm.
I.
In 2007, Tindell filed a complaint alleging various causes of action pursuant to 42
U.S.C. § 1983 against numerous named defendants. Tindell alleged that several incidents
provided the basis for relief under the First, Fourth, Eighth, and Fourteenth Amendments,
as well as under the state constitution and state law.
First, Tindell alleges that his cell was searched without justification and his legal
property was improperly removed without due process of law and in violation of the
Fourth Amendment. Tindell claims that the search occurred in retaliation for pending
civil litigation against prison officials, was racially motivated, and because defendants
were engaged in a conspiracy against him. Tindell argues that the improper seizure of his
legal materials denied him access to the courts. Tindell also alleges that in the course of
seizing property from his cell, a prison officer used excessive force in removing him from
his cell.
Second, Tindell asserts that prison officials and medical staff were deliberately
indifferent to his serious medical needs in violation of the Eighth Amendment. Tindell,
an insulin-dependent diabetic, was sent to the prison’s medical facility where he was
force fed by medical staff. Tindell alleges that he was placed in a “hard cell” after he

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requested that his sugar level be tested. He asserts that this incident violated his rights
under the Equal Protection Clause of the Fourteenth Amendment and his right to due
process.
Third, Tindell alleges that he was denied due process when misconduct charges
were filed against him. He alleges that the hearing examiners conspired against him by
delaying his hearing and by denying his requests for “video cameras under exculpable
evidence.”
Defendants filed two motions to dismiss: one on behalf of defendant Herbik and
one on behalf of all remaining defendants (“DOC” defendants). Tindell did not respond
to either. Based on a report by the Magistrate Judge, the District Court dismissed many of
the named defendants from Tindell’s suit and all but two of his claims. The two claims
that survived dismissal were a retaliation claim against defendants Leggett, Crumb, Ruvo,
Caldwell, and Kremposky, and an excessive force claim against defendant Crumb. In
addition, the District Court denied Tindell’s motion to amend because the court could
discern no new claims in the proposed amended complaint, and denied his motion to
remand.
After discovery, defendants filed a motion for summary judgment and provided
evidence demonstrating that no genuine issue existed. The Magistrate Judge issued a
second report recommending a grant of summary judgment in favor of defendants, which
the District Court adopted and denied Tindell relief. Tindell timely appealed.

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We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if
Tindell’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir.
I.O.P. 10.6. Our review is plenary. See Miller v. Fortis Benefits Ins. Co., 475 F.3d 516,
519 (3d Cir. 2007) (motion to dismiss); Kaucher v. County of Bucks, 455 F.3d 418, 422
(3d Cir. 2006) (summary judgment).
II.
We consider first the District Court’s order dismissing Tindell’s claims against
defendant Herbik, and dismissing claims against the remaining state defendants stemming
from the cell search, confiscation of legal property, misconduct charges, and medical
treatment. Dismissal is proper if a party fails to allege sufficient factual matter, which, if
accepted as true, could “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
First, Tindell fails to state a claim for relief when he alleges that the cell search and
confiscation of his legal property violated his constitutional rights. Prisoners do not have
a right to privacy and freedom from unreasonable searches during incarceration. See
Hudson v. Palmer, 468 U.S. 517, 526 (1984); Doe v. Delie, 257 F.3d 309, 316 (3d Cir.
2001). Seizure of Tindell’s legal property thus cannot constitute a Fourth Amendment
violation. Nor is there a due process violation if a meaningful post-deprivation remedy
for the loss is available. Hudson, 468 U.S. at 533. We have previously held that the

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It is unclear whether Tindell’s allegations relate to misconduct charges filed based on1
the cell search or another incident.
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prison’s grievance program and internal review provide an adequate post-deprivation
remedy to satisfy due process. Tillman v. Lebanon County Corr. Facility, 221 F.3d 410,
422 (3d Cir. 2000). Tindell has not shown that this post-deprivation procedure was not
meaningful. To the extent that Tindell claims that his delayed misconduct hearing
deprived him of due process, he does not state a claim for relief. See Sandin v. Conner,1
515 U.S. 472 (1995); see also Wolff v. McDonnell, 418 U.S. 539, 565-72 (1974) (setting
forth due process protections for prison disciplinary hearings). Tindell also does not state
a claim for relief when he alleges that hearing examiners denied his requests for “video
cameras.” See Wolff, 418 U.S. at 566-67.
Tindell also fails to allege a violation under the First Amendment. Although he
asserted that some legal property was confiscated, he does not set forth any facts showing
that this resulted in an “actual injury.” See Christopher v. Harbury, 536 U.S. 403, 415
(2002). His claims are insufficient to show that he was denied access to the courts. Id.
Although not addressed by the District Court, Tindell also alleges that some of the items
confiscated were his religious materials. To the extent he asserts a First Amendment
violation, he fails to allege with any specificity how the removal of these items
substantially burdened his ability to observe a central religious belief or practice. See
Hernandez v. Comm’r, 490 U.S. 680, 699 (1989).

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Additionally, Tindell’s bare conclusory allegations are insufficient to sustain a
conspiracy claim. See D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch.,
972 F.2d 1364, 1377 (3d Cir. 1992) (“[m]ere conclusory allegations of deprivations of
constitutional rights” are insufficient to state a conspiracy claim (citation omitted)); Rose
v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (allegations supporting a conspiracy claim
under civil RICO must be sufficiently specific).
Tindell’s claims of deliberate indifference were also properly dismissed. He
argues that the course of treatment was improper, which does not state a claim under the
Eighth Amendment. Spruill v. Gillis, 372 F. 3d 218, 235 (3d Cir. 2004) (“mere
disagreement as to the proper medical treatment” is insufficient to state a constitutional
violation). He also failed to allege some basis for concluding that defendants had a
“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). His
allegations neither provide a basis to conclude that his due process rights were violated in
the course of his medical treatment nor show how the medical staff violated the Equal
Protection Clause. His state law medical malpractice claim must also be dismissed for
failure to present the elements necessary to establish a prima facie case of negligence.
See Mitzelfelt v. Kamrin, 584 A.2d 888, 891 (Pa. 1990) (listing elements of medical
malpractice claim).
Tindell’s general claims against defendants who act as supervisors were also
properly dismissed. He failed to allege any personal involvement and instead premised

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liability on a theory of respondeat superior. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988). To the extent that Tindell alleged a state law tort claim, sovereign
immunity protects the DOC defendants from being sued in their official capacities in
federal court. See 42 Pa. Cons. Stat. Ann. § 8521(b); Chittister v. Dep’t of Community &
Economic Dev., 226 F.3d 223, 226-27 (3d Cir. 2000).
Finally, after reviewing Tindell’s motion to amend, we agree that the District
Court properly denied him leave to file the proposed amended complaint, as it was no
different than the original complaint. Denial of his motion to remand was also proper.
See 28 U.S.C. § 1441.
III.
We consider next the District Court’s order granting summary judgment on the
remaining two claims: (1) that the cell search was retaliatory and (2) that it involved the
use of excessive force. Summary judgment will be affirmed if the record demonstrates
that there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
To show retaliation, a prisoner must demonstrate that he was engaged in
constitutionally protected conduct, that the prison officials caused him to suffer “adverse
action,” and that his constitutionally protected conduct was a motivating factor in the
officials’ decision to discipline him. Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir.
2002) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). However, prison

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officials may still prevail by proving that they would have made the same decision even if
the prisoner were not engaging in constitutionally protected conduct. Rauser, 241 F.3d at
334.
Although there is a dispute over whether Tindell’s cell property exceeded
institutional rules, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) (relying on a videotape in
assessing summary judgment evidence). Here, defendants provided a video showing
officers removing all of the personal, non-essential property from Tindell’s cell. The
video shows that defendants removed two full boxes, in addition to various other items,
including a tall stack of books. Defendants also attest that Tindell refused orders to
remove excess property and come into property compliance with the institutional rules.
Tindell does not present any evidence to show that defendants acted with a retaliatory
motive aside from his own personal beliefs. Because defendants provided evidence to
show that they would have made the same decision regardless of whether Tindell had
pending litigation, summary judgment was proper.
To determine whether the force used by a prison official amounts to a
constitutional violation, “the core judicial inquiry is . . . whether the force was applied in
a good-faith effort to maintain or restore discipline, or maliciously and sadistically to

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cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). In evaluating whether an
officer used excessive force, courts will look to several factors including the need for
force, the relationship between the need and amount of forced used, the extent of injuries
inflicted, the extent of the threat to the safety of staff and inmates, and any efforts to
temper the severity of the forceful response. Smith v. Mensinger, 293 F.3d 641, 649 (3d
Cir. 2002).
Here, the videotape refutes Tindell’s assertion that defendant Crumb used
excessive force when confiscating Tindell’s excess property. Crumb gave Tindell a direct
order, Tindell resisted, and he was further directed to comply. When Tindell continued to
disobey, Crumb used the amount of force necessary to control Tindell’s movement. The
video shows that Tindell did not suffer any physical distress, and a medical report
indicates that he had no visible swelling or injuries on his right wrist, although he did
complain of shoulder pain. Again, viewing the evidence in the light most favorable to
Tindell, no reasonable finder of fact could view the video of the incident and determine
that Crumb acted maliciously and sadistically. Rather, a reasonable jury would have to
conclude that force was reasonable under the circumstances and, therefore, summary
judgment was proper on this claim.
IV.
As the appeal presents no substantial question, we will summarily affirm the
District Court judgment. Tindell’s motion for appointment of counsel is denied.

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