Kareem Millhouse v. R. Arbasak , 373 F. App'x 135 ( 2010 )

CLD-157 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2709 & 09-2858
(cons.)
___________
KAREEM HASSAN MILLHOUSE,
Appellant
v.
R. ARBASAK, Lieutenant; D. DEMPSEY, Lieutenant; J. GIBBS, S.I.S. Lieutenant;
WILLIAM JEZIOR, Officer S.I.S. Investigator; KNOX, Captain; TROY LEVI; MR.
FREEMAN; SHIRLEY WHITE; DARREN HOWARD; TRACY V. BROWN; MRS.
SMITH; MR. BROWNS; MRS. BOARDMAN; K. MUSE; JAMIE MENDEZ; D. CRUZ;
DALMASI
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-07-01442)
District Judge: Honorable John P. Fullam
____________________________________
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 IOP 10.6
March 25, 2010
Before: BARRY, FISHER and STAPLETON, Circuit Judges
(Opinion filed : April 1, 2010)
_________
OPINION
_________
PER CURIAM
Kareem Hassan Millhouse, a federal prisoner, appeals the order of the District
Court dismissing his civil rights complaint. For the following reasons, we will affirm.
See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6.
Millhouse alleged that while he was incarcerated at the Federal Detention Center
(FDC) in Philadelphia, PA, prison officials violated his First, Fourth, Fifth, Eighth, and
Fourteenth Amendment constitutional rights. His claims ranged in seriousness from
sexual assault by a prison guard to deprivation of nail clippers. Many of the claims
stemmed from Millhouse’s placement in the Segregated Housing Unit (SHU).
Defendants filed a motion to dismiss arguing that Millhouse failed to exhaust his
administrative remedies. The District Court found several of the claims unexhausted and
dismissed the remaining claims as meritless. Millhouse filed a timely notice of appeal
challenging the District Court’s order. After the District Court dismissed Millhouse’s
claims, he filed a motion to amend his complaint and a “motion of sovereignty under the
Uniform Commercial Code.” The District Court dismissed Millhouse’s motions without
prejudice. Millhouse filed a timely notice of appeal from that order. The Clerk
consolidated the two appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. When considering a district
court's grant of a motion to dismiss under Rule 12(b)(6), we “accept all factual allegations
as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips
v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). We review the District Court’s denial of a motion to amend for abuse of
discretion. Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007).
We agree with the District Court and will adopt its reasoning. First, we find that
Millhouse has failed to exhaust a majority of his claims. The Prison Litigation Reform
Act provides that “[n]o action shall be brought with respect to prison conditions until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Under Bureau of Prison (BOP) regulations, Millhouse’s first remedy is to resolve the
issue informally. See 28 C.F.R. § 542.13(a). If the informal resolution fails, he would be
required to file a formal Administrative Remedy Request. See 28 C.F.R. § 542.14. If the
Warden denied the request, Millhouse would then be required to appeal to the Regional
Director and then, finally, to the General Counsel in the Central Office of the BOP. See
28 C.F.R. § 542.15(a); Nyhuis v. Reno, 204 F.3d 65, 77 n.12 (3d Cir. 2000).
Of the fifty-one administrative grievances Millhouse filed, it appears that he only
appealed two to the General Counsel.1 While Millhouse asserts that Appellees are
withholding his appeals to the General Counsel, he has not presented evidence that he
filed such appeals. Millhouse also alleges that his appeals were “stonewalled,” but he
does not give specific examples of officials’ obstruction. One exception is his assertion
that prison officials dissuaded him from filing a sexual assault grievance by telling him
1
The administrative remedy numbers for these claims are 449578 and 449581.
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that the investigating was on-going. Despite officials’ assurances, however, Millhouse
filed a grievance regarding the alleged assault and, when the grievance was unsuccessful,
he appealed to the Regional Office but not to the General Counsel. Thus, this is not a
case where exhaustion could be excused because prison officials’ misdirection deprived
Millhouse of his administrative remedy. See Brown v. Croak, 312 F.3d 109, 112 (3d Cir.
2002). Rather, Millhouse was aware that the grievance procedure could be utilized but he
failed to fully avail himself of it.2
We also agree with the District Court that Millhouse’s exhausted claims, as
pleaded, are meritless. One of Millhouse’s claims alleges prison officials violated his
First Amendment rights by denying him access to the prison law library. In order to
recover on such claim, he must show that he suffered actual injury. Lewis v. Casey, 518
U.S. 343, 350 (1996). Millhouse has failed to plead any injury from the alleged denial of
access to the law library. In another claim, Millhouse alleges that prison officials
routinely subjected him to strip searches when entering and exiting his cell in the SHU
and that, during one search, a guard “focused on his chest and penis while other
employees were present.” The Supreme Court has held that prison officials may conduct
visual body cavity searches in a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 559-
60 (1979). Assuming the truth of Millhouse’s allegations, the searches, even if
2
We also agree that Millhouse has not shown that prison officials have retaliated
against him for filing grievances.
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embarrassing and humiliating, do not violate the constitution.3 See, e.g., Del Raine v.
Williford, 32 F.3d 1024, 1038-41 (7th Cir. 1994) (rejecting claim that rectal probe
performed in lobby area of prison hospital was “unnecessarily brutal, painful and
humiliating”); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (upholding
policy of conducting visual bodily cavity searches every time prisoner leaves or returns to
maximum security unit or moves within unit). Moreover, we agree with the District
Court that Millhouse’s placement in the SHU dose not constitute atypical and significant
hardship which would violated the Fifth Amendment’s Due Process clause. See, e.g.,
Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (holding that a Pennsylvania
prisoner’s confinement in administrative segregation for 15 months did not implicate a
liberty interest).
Millhouse’s Eighth Amendment claims are also without merit. Millhouse claims
that he was denied recreation on January 11, 2007. While the denial of exercise and
recreation may result in a constitutional violation, a temporary denial is insufficiently
serious to implicate the Eighth Amendment. See, e.g., Knight v. Armontrout, 878 F.2d
1093, 1096 (8th Cir. 1989). Also meritless is Millhouse’s claim that a prison worker
placed his food tray on the floor. See Ramos v. Lamm, 639 F.2d 559, 570-71 (10th Cir.
1980).
3
We note that Millhouse brought these searches on himself by possessing illegal
weapons and attempting to sexually assault his attorney.
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Finally, we agree with the District Court that any attempt by Millhouse to amend
his complaint would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). Millhouse’s May 14, 2009 attempt to amend the complaint did not cure
any of the exhaustion deficiencies in his original complaint or demonstrate that prison
officials were “stonewalling” his attempts to exhaust. The District Court also did not
abuse its decision by denying Millhouse’s attempt to add defendants and claims to his
complaint two weeks after the entry of final judgment. See Werner v. Werner, 267 F.3d
288, 296 (3d Cir. 2001) (after final judgment, leave to amend will be granted only
sparingly and will be the “long-odds exception.”) The District Court also properly denied
Millhouse’s “motion of sovereignty under the Uniform Commercial Code.”
For the foregoing reasons, we will summarily affirm the order of the District
Court. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Millhouse’s motion to amend grounds
for appeal is denied.4
4
Millhouse argues in the motion that he is currently in the process of exhausting his
sexual assault claim. Exhaustion, however, must occur before a prisoner files a lawsuit.
See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003).
6