Petition for Writ of Certiorari — Ricardo Noble, Petitioner v. John E. Wetzel, Secretary, Pennsylvania Department of Corrections, et al.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-1328

RICARDO NOBLE,

Appellant

v.

JOHN E. WETZEL, Secretary of PA D.O.C.; ROBERT GILMORE, SCI Greene

Superintendent; MARIA BALESTRIERI, Greene Prison Counselor; STEVE

LONGSTRETH, SCI Greene Prison Counselor; MICHAEL STELLA, SCI Greene Prison

Counselor; SETH ERICKSON, SCI Greene Prison Counselor

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. Civil Action No. 2:18-cv-01160)

District Judge: Honorable Marilyn J. Horan

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 2, 2022

Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges

(Opinion filed: November 4, 2022)

OPINION*

PER CURIAM

Pro se appellant Ricardo Noble appeals from the District Court’s dismissal of

several of his claims and its grant of summary judgment in favor of the remaining

defendants in an action Noble brought pursuant to 42 U.S.C. § 1983. For the reasons that

follow, we will affirm the District Court’s judgment.

I.

Noble is an adherent of the “Nation of Gods and Earth” (“NGE”), also referred to

as “the 5%.”r See Am. Compl. at p. 4. He is incarcerated based on a 1992 conviction for

second-degree murder and is serving a sentence of 40 years to life imprisonment.

Between roughly 2001 and 2013, and then again since 2014, Noble has been housed in

SCI-Greene’s Restricted Housing Unit (“RHU”).

In 2013, Noble was released from the RHU and housed in the general population

. of SCI-Greene. Then in August 2014, Noble violently assaulted a unit manager, striking

him repeatedly in the head arid neck with a combination lock attached to a sock; Noble

denies some facts about the incident. He was sentenced to 450 days in disciplinary

* This disposition is not an opinion of the full Court and pursuant to I.OP. 5.7 does not

constitute binding precedent.

1 Because we write primarily for the parties, we will recite only the facts necessary for

our discussion. These facts are undisputed unless otherwise noted.

2

custody as a result of the attack. In October 2014, staff recommended that Noble be

placed on the Restrictive Release List (“RRL”)2 because of five prior assaults against

prison staff and inmates, where the victims all required hospital treatment; Noble denies

the facts of these incidents. Staff believed assaults in 2003 and 2006 to be gang-related,

which Noble also denies.

In 2018, Noble received a copy of a sentencing memorandum prepared by the

Commonwealth, which indicated that he had been classified as a member of a Security

Threat Group (“STG”). He submitted a grievance to the Pennsylvania Department of

Corrections (“DOC”) later that year claiming that his STG classification had been falsely

made solely because he is an NGE adherent.3 Stephen Longstreth, the manager of SCIGreene’s RHU, denied the grievance, explaining that the DOC had properly documented

Nobje’s history of violence against inmates and staff. Robert Gilmore, the superintendent

of SCI-Greene, upheld the denial.

In August 2018, Noble filed a lawsuit in the District Court, challenging his STG

classification, the denial of NGE-related materials in prison, and his commitment in the

RHU. He named Longstreth and Gilmore as defendants, as well as John Wetzel, the

Secretary of the DOC, and three prison counselors, Michael Stella, Seth Erickson, and

2 The RRL is a list of prisoners who are restricted from being released into the general

population of the prison for an indefinite period of time.

3 According to an affidavit by a DOC employee regarding STGs, prisons track inmates’

STG status to monitor groups that are known to cause disturbances. STG status is not

limited to major gangs. NGE adherents were not recognized as an STG at, the time of the

affidavit, and as of 2021, Noble was categorized as a suspected member of an STG.

3

Maria Balestieri.4 He brought the following claims pursuant to § 1983: (1) a conditions

of confinement claim under the Eighth Amendment; (2) a conditions of confinement

claim under the Fourteenth Amendment; (3) a claim under the Equal Protection Clause;

(4) claims under the First Amendment and the Religious Land Use and Institutionalized

Persons Act of 2000 (“RLUIPA”), see 42 U.S.C. § 2000cc-l; and (5) a conspiracy claim.5

Defendants moved to dismiss Noble’s complaint. The District Court granted their

motion, dismissing with prejudice Noble’s claims against Stella, Erickson, and Balestieri,

as well as his claims brought against any defendant in an official or supervisory capacity,

and his Fourteenth Amendment conditions of confinement claim. Noble was granted

leave to amend his other claims. Defendants then moved to dismiss Noble’s amended

complaint, which the District Court granted in part and denied in part it dismissed

Noble’s equal protection claim with prejudice, but Noble’s remaining four claims against

Longstreth, Gilmore, and Wetzel survived. Ultimately, the District Court granted

summary judgment in favor of Longstreth, Gilmore, and Wetzel on Noble’s Eighth

Amendment, First Amendment, RLUIPA, and conspiracy claims. Noble sought

reconsideration, which was denied, and timely appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

4 Noble named an additional defendant in his initial complaint — the Program Review

Committee — but he did not name this defendant in his subsequent amended complaint

and does not discuss this defendant on appeal.

5 Noble brought two additional constitutional claims that he has not discussed in his

detailed appellate brief. He has thus forfeited any challenge to the resolution of those

issues on appeal. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016).

j

4

over the District Court’s dismissal of Noble’s claims. See Fowler v. UPMC Shadyside,

578 F.3d 203, 206 (3d Cir. 2009). In reviewing a dismissal for failure to state a claim,

“we accept all factual allegations as true [and] construe the complaint in the light most

favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011). Dismissal is appropriate “if, accepting all well-pleaded allegations in the

complaint as true and viewing them in the light most favorable to the plaintiff, a court

finds that [the] plaintiffs claims lack facial plausibility.” Id

We also exercise plenary review over the District Court’s grant of summary

judgment. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A genuine dispute of material fact exists if the evidence is sufficient for a

reasonable factfinder to return a verdict for the nonmoving party. Anderson v. Liberty

Lobby. Inc.. 477 U.S. 242, 248 (1986).

III.

We agree with the District Court’s disposition of Noble’s claims. First, Noble’s

claims against Longstreth, Gilmore, and Wetzel in their official capacities were all barred

by Eleventh Amendment immunity, which protects a state or a state agency from suit

unless Congress has specifically abrogated the state’s immunity or the state has waived

its immunity. See Pennhurst State Sch. & Hosp. v. Halderman. 465 U.S. 89, 100, 120-21

(1984) (“The Eleventh Amendment bars a suit against state officials when the state is the

real, substantial party in interest.”) (internal quotation marks and citation omitted). Noble

5

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does not meaningfully address this issue in his appellate brief, and he has identified no

waiver of immunity that may be applicable in this case. Further, to the extent that Noble

sought to bring claims against these defendants solely in a supervisory capacity, such

claims are not cognizable under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988) (“A defendant in a civil rights action must have personal involvement in

the alleged wrongs; liability cannot be predicated solely on the operation of respondeat

superior.'”)

Next, Noble’s claims against prison counselors Balestieri, Stella, and Erickson

were filed outside of the statue of limitations for civil rights claims, which is two years in

this case. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); see also 42 Pa. Cons.

Stat. § 5524(2). Noble made allegations about these defendants’ actions in 2013, 2015,

and July 2016, respectively, claiming that Balestieri, Stella, arid Erickson were his prison

counselors at those times and that they compiled allegedly inaccurate information about

his STG status. But Noble filed this lawsuit on August 31, 2018, more than two years

later. Although he maintains that he did not discover their actions until January 2018, he

did not allege that Balestieri, Stella, or Erickson took any action relating to his STG

classification after July 2016.6

6 Noble argues in his appellate brief that the statute of limitations should be tolled due to

these defendants’ fraudulent concealment of their actions, but he has made no factual

allegations of either fraud or concealment by Balestieri, Stella, or Erickson. See Mest v.

CaEot Corp.. 449 F.3 J 5'027Tlb ^Jd CTn^OObTrTTis argument that the continuing

violation doctrine tolls the limitations period is aTso unavailing, as that doctrine focuses

on “affirmative acts” of defendants. and~No1ile alleged no sucfi~acts~a'fter_Juiy 2016. See

Tearpock-Martini v. BoroughTT^luckshfrihv. 756 F.3d 2T2, 236-37 (3d~Cir. 20141.

6

j

The District Court also appropriately dismissed Noble’s Fourteenth Amendment

claim against Longstreth, Gilmore, and Wetzel in their personal capacities, relating to his

RHU confinement. To the extent that he sought to bring a procedural due process claim,

he never specifically alleged that any “procedures Defendants made available to him did

not provide due process of law.” See Steele v. Cicchi. 855 F.3d 494, 507 (3d Cir. 2017).

To the extent that Noble was seeking to assert a substantive due process claim, he has

acknowledged that he was moved back to the RHU after he was found to have assaulted a

prison staff member in 2014, and that he had a lengthy history of violent incidents,

although he vaguely denies some of the circumstances underlying those incidents.

Accordingly, Noble has not alleged that these defendants’ actions were so arbitrary, illconceived, or malicious as to “shock the conscience.” See Mulholland v. Gov’t Cnty. of

Berks. Pa.. 706 F.3d 227, 241 (3d Cir. 2013) (citation omitted).

Noble’s equal protection claim was similarly properly dismissed, after Noble was

given an opportunity to amend this claim.7 At no point has Noble alleged that he was

treated differently than similarly situated individuals. See Phillips v. County of

Allegheny. 515 F.3d 224.

243 (3d Cir. 2008) (“To state a claim foi^class of onelequal^

protection, a plaintiff must at a minimum allege that he was intentionally treated

differently from others similarly situated by the defendant.”).

Wetzel, Gilmore, and Longstreth were entitled to summary judgment on Noble’s

_otion to striked

7 The District Court did not abuse its discretion in granting defendants /rry

portions of Noble’s amended complaint, as those allegations referencedclaims that were

already dismissed with prejudice in his original complaint. See United States v. Ancient

Coin Collectors Guild. 899 F.3d 295, 312 (4th Cir. 2018).

7.

claims that survived dismissal. First, “[t]o determine whether prison officials have

violated the Eighth Amendment, we apply a two-prong test: (1) the deprivation must be

objectively, sufficiently serious; a prison official’s act or omission must result in the

denial of the minimal civilized measure of life’s necessities; and (2) the prison official

must have been deliberate[ly] indifferen[t] to inmate health or safety.” Porter v. Pa.

Dep’t of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (alterations in original) (internal

quotation marks and citation omitted).

After careful review of the record, we agree with the District Court that although

Noble’s lengthy detention in solitary confinement met the objective first prong of that

test, no genuine issue of material fact existed as to whether he could meet the subjective

second prong. As the District Court explained in further detail, Noble cannot point to

evidence in the record showing that he was housed in the RHU for any reason Other than

a pattern of violent behavior against staff and other inmates, most recently in 2014, after

he was released from the RHU and housed with the general population. See id. at 446

(explaining that “[i]n evaluating the subjective prong of the Eighth Amendment test, we

may .. . consider whether officials had a legitimate penological purpose behind their

conduct,” such as whether defendants “offered any evidence aboutthe

risk

thaty [the

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plaintiff] specifically poses”) (internal quotation marks and citation omitted); see also

Williams v. Borough of W. Chester. Pa.. 891 F.2d 458, 460 (3d Cir. 1989) (noting that a

nonmoving party “cannot simply reassert factually unsupported allegations” to overcome

summary judgment).

For Noble’s First Amendment claim, the record evidence demonstrates that Noble

8

was placed on the RRL and in the RHU because of his pattern of violent conduct, rather

than any religious belief or practice. See Pell v. Procunier, 417 U.S. 817, 822 (1974)

(“[A] prison inmate retains those First Amendment rights that are not inconsistent with

his status as a prisoner or with the legitimate penological objectives of the corrections

system.”). The evidence also shows that requests for NGE adherents — including NGE

books, communal viewing or listening to certain resources, and access to a religious

advisor — have been approved. Noble’s speculative allegation that he stopped

requesting NGE materials because he fears they could be confiscated is not factual

evidence in support of his asserted First Amendment claim. See Bell v. United Princeton

Props.. Inc.. 884 F.2d 713, 720 (3d Cir. 1989).

Next, RLUIPA does not permit actions for damages against state officials in their

individual capacities, and Noble has identified no waiver of immunity that may be

applicable in this case. See Sharp v. Johnson, 669 F.3d 144, 153-55 (3d Cir. 2012). And

because Noble has been transferred from SCI-Greene to a different facility, he cannot

pursue his remaining requests for injunctive or declaratory relief under RLUIPA.8 See

Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003), as amended (May 29, 2003) (“An

inmate’s transfer from the facility complained of generally moots . . . equitable and

declaratory claims.”).

Finally, beyond his own unsupported conjecture. Noble cannot point to evidence

8 Because the record does not suggest that Noble will be transferred back to SCI-Greene,

this general rule applies here. Additionally, the elements necessary to invoke the

“capable of repetition” exception to the mootness doctrine are not present in this case.

See Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

9

that any set of defendants came to an understanding or agreement to conspire against

him.9 See Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008) (“To

constitute a conspiracy [under § 1983], there must be a ‘meeting of the minds.’”) (citation

omitted).

For these reasons, we will affirm the judgment of the District Court.

9 Noble does not appear to challenge the District Court’s denial of his.motion for

reconsideration in his appellate brief, but in any event, we perceive no abuse of discretion

in the District Court’s decision. See Max’s Seafood Cafe ex rel. Lou-Ann, Inc, v.

Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

10

Case: 22-1328

Document: 27

Page: 1

Date Filed: 12/29/2022

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-1328

Ricardo Noble,

Appellant

v.

John E. Wetzel, Secretary of PA D.O.C.; Robert Gilmore, SCI Greene Superintendent;

Maria Balestrieri, Green Prison Counselor; Steve Longstreth, SCI Greene Prison

Counselor; Michael Stella, SCI Greene Prison Counselor; Seth Erickson, SCI Green

Prison Counselor

(W.D. of Pa. No, 2-18-cv-Ol 160)

Before: CHARAGRE, Chief Judge, AMBRO, JORDAN, HARDIMAN,

GREENAWAY, SHWARTZ, KRAUSE, RESTREPO, BIBAS PORTER, MATEY,

PHIPPS, and FREEMAN, Circuit Judges and SCIRICA*, Senior Judge

ORDER

The petition for panel rehearing and rehearing en banc filed by the Appellant in

the above-entitled case having been submitted to the judges who participated in the

decision of this Court and to all the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in regular active service not having

voted for rehearing by the court en banc, the petition for rehearing is denied. Judge

Rendell voted for rehearing.

By the Court,

s/ THOMAS L. AMBRO

Circuit Judge

Dated: December 29, 2022

Lmr/cc: Ricardo Noble

Anthony T. Kovalchick, Esq.

* Judge Scirica’s vote is limited to panel rehearing only.