Samuel Cann v. GEORGE HAYMAN, Commissioner, Department of Corrections

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3032
___________
SAMUEL CANN,
Appellant
v.
GEORGE HAYMAN, Commissioner, Department of Corrections;
RONALD CATHEL, Administrator of New Jersey State Prison;
MICHELLE R. RICCI, Associate Administrator; PAMELA TRENT, Assistant
Administrator; DONALD MEE, Assistant Administrator;
SGT. NEWSOM, Custodial Official of NJSP; DANIEL MARTAIN, COR;
OFFICER OZVART, H/O Officer New Jersey State Prison
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-02416)
District Judge: Honorable Garrett E. Brown, Junior
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 20, 2009
Before: BARRY, SMITH and GARTH, Circuit Judge
(Opinion filed: September 30, 2009)
_________
OPINION
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PER CURIAM
Appellant Samuel Cann appeals from an order of the District Court dismissing his
civil rights complaint for failure to state a claim. For the reasons that follow, we will
affirm.
I.
Cann is an inmate at the New Jersey State Prison in Trenton. According to his
complaint, on September 15, 2005, Cann submitted a written grievance to the New Jersey
State Prison Administration, alleging that funds in his inmate account had been tampered
with by prison officials. The grievance “accused the officials of indifference,” and stated
that Cann “should not have to pay for the blunders of an incompetent social services
department.” (Pl. Comp. at 2.)
On November 8, 2005, Cann set off a metal detector three consecutive times upon
return from a morning prison yard exercise. He was escorted from the yard, and Appellee
Sgt. Newsom conducted a strip search and a “visual body cavity search.” (Pl. Comp. at
3.) Cann complied with both searches, and no contraband was found. Appellee Officer
Martain then gave an additional order to “squat and cough.” Cann stated to Martain that
“there was [no] policy that says he has to do that; and that the orders were completely un-
reasonable.” (Pl. Comp. at 4.) Cann then questioned Newsom as to whether that
particular order was permitted by institutional guidelines, and ultimately refused to
comply.

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“Body Orifice Security Scanner (“BOSS”) chair. The BOSS chair is a non-intrusive,1
high sensitivity detector designed to detect metal objects hidden in body cavities. It is
used to screen inmates for weapons and contraband objects that might be hidden in anal,
oral, vaginal, and nasal cavities. It will not pick up non-metallic items such as drugs,
cigarettes, or money. The BOSS Chair is not foolproof, but it enhances any other search
conducted on an arriving inmate.” Dodge v. County of Orange, 282 F. Supp. 2d 41, 53
(S.D.N.Y. 2003).
The characteristics of a “dry cell” were described by the District Court. (Dist. Ct.2
Op. at 3 n.1).
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Because of Cann’s noncompliance with the order, he was subsequently placed in
the BOSS chair , subjected to two additional searches by Martain, Newsom and an1
Officer Johnson, made to submit a urine sample administered by Appellee Pamela Trent,
and in the end was placed in a “dry cell” at the instruction of Trent. None of these2
measures resulted in the discovery of contraband. However, Cann was charged with two
disciplinary infractions: one based on his refusal to submit to a search and the other based
on his refusal to obey the “squat and cough” and order. (Dist. Ct. Op. at 3.)
Cann spent six days in the dry cell, and then was moved to a different detention
unit for several days before the disciplinary hearing was to commence. During that time,
he “received a copy of the grievance form that he submitted back in September of 2005;
although there was no documented resolution on this remedy form, [Trent’s] signature
was on the grievance.” (Pl. Comp. at 6.) After four continuances, a disciplinary hearing
was held before Appellee Officer Ozvart. Cann was adjudicated guilty on the charge of
refusing the order to squat and cough; the other charge was dropped. Ozvart imposed a

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fifteen-day detention and a ninety-day administrative segregation. (Dist. Ct. Op. at 3.)
After his administrative appeal of Ozvart’s decision was unsuccessful, Cann filed a
complaint in state court alleging deprivations of his civil rights in relation to his treatment
after setting off the metal detector. The Superior Court of New Jersey, Appellate
Division denied relief and the New Jersey Supreme Court denied certification. See
Cann v. Dep’t of Corr., 2006 WL 2714604 (N.J. Super. App. Div. Sep. 25, 2006), aff’d,
189 N.J. 428 (2007).
Cann then filed this pro se action in the United States District Court for the District
of New Jersey against several prison officials (“Appellees”), alleging violations of his
civil rights under 42 U.S.C. § 1983. Specifically, Cann alleged First Amendment
retaliation, Fourth Amendment unreasonable search, Eighth Amendment cruel and
unusual punishment, and Fourteenth Amendment due process/equal protection claims.
The District Court dismissed Cann’s complaint with prejudice for failure to state a claim
upon which relief may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). Cann appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s sua sponte dismissal for failure to state a claim. See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). When reviewing a complaint dismissed
under § 1915(e)(2)(B), we apply the same standard provided for in Federal Rule of Civil

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Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
Thus, we “accept as true the factual allegations in the complaint and all reasonable
inferences that can be drawn therefrom.” Allah, 229 F.3d at 223 (quotation omitted).
Moreover, we liberally construe the pleadings of pro se litigants. See Erickson v. Pardus,
551 U.S. 89 (2007) (per curiam).
To avoid dismissal, “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) (quotation omitted); see also United States Dep’t of Transp., ex rel.
Arnold v. CMC Eng’g, 564 F.3d 673, 676 (3d Cir. 2009). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at
1949. Furthermore, “[i]n the event a complaint fails to state a claim, unless amendment
would be futile, the District Court must give a plaintiff the opportunity to amend her
complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008); see also
Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
III.
As a preliminary matter, we see no indication in the record that the District Court
gave Cann an opportunity to amend his complaint after its initial screening. Nor does the
District Court speak to the inequity or futility of such an amendment in its opinion.
Nonetheless, we agree with the District Court that Cann’s complaint fails to state a viable

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For these same reasons, we find that amendment would have been futile.3
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claim under the First, Fourth, Eighth and Fourteenth Amendments, for substantially the
reasons given in the District Court’s thorough opinion.3
In short, the claims in Cann’s complaint lack facial plausibility, see Iqbal, 129 S.
Ct. at 1949, because the complained-of actions by the prison officials were not improper,
let alone unconstitutional, given Cann’s “triple triggering” of the metal detector in the
yard and his subsequent refusal to comply with Martain’s order to squat and cough. The
responsive actions take by prison officials were rationally related to legitimate
penological interests and goals. And despite his attempts to shift the focus from his
conduct to provisions of the New Jersey Administrative Code, Cann nevertheless
concedes that he did not comply with Martain’s order. The reasoning of the Appellate
Division, in rejecting one of Cann’s state law claims, provides a helpful analog for these
points:
It is undisputed that the inmate did not do what he was told to
do: squat and cough. Certainly, the guards were entirely
justified in giving such an order when the strip search failed to
produce the object that triggered the metal detector; not only for
their safety, but also that of other inmates. The command to
squat and cough was certainly less invasive than a digital or
instrumented inspection of his rectum. Furthermore, the DOC
had little choice but to put the inmate in a dry cell because of the
risk to the guards and other inmates from a secreted weapon.
Cann, 2006 WL 2714604, at *2.

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Cann maintains on appeal, as he did in the complaint, that the metal detector was
set off because it was malfunctioning. Even if that were the case, this fact does not
validate his noncompliance with Martain’s order to squat and cough. We emphasize here
the Supreme Court’s dictate that “prisoners have no legitimate expectation of privacy.”
Hudson v. Palmer, 468 U.S. 517, 530 (1984).
Accordingly, we will affirm the District Court’s order dismissing Cann’s
complaint for failure to state a claim.

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