Gregory Thomas v. Michael Clark ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1768
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GREGORY THOMAS,
Appellant
v.
MICHAEL CLARK, Superintendent; PATRICIA THOMPSON, Major; D. VARNER,
Grievance Officer; CHIEF OF BHCS, Clinical Services
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1:21-cv-00230)
District Judge: Honorable Richard A. Lanzillo
____________________________________
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
on June 29, 2023
Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges
(Opinion filed: July 20, 2023)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Gregory Thomas, proceeding in forma pauperis, appeals from the District
Court’s judgment in favor of Defendants in this 42 U.S.C. § 1983 action. Since Thomas
does not present a substantial question, we will summarily affirm.
I.
Thomas alleges that Defendants violated his First Amendment rights through a
prison regulation involving the deletion of phone numbers that appeared on two or more
inmates’ phone lists. Thomas, who suffers from a skin disease known as acne keloids, also
alleges a violation of his Eighth Amendment and Fourteenth Amendment rights due to the
prison’s alleged refusal to provide him with an electric razor. Defendants filed a motion
for summary judgment, which the District Court granted. Thomas filed a motion for re-
consideration, which the District Court denied. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See Batoff v. State Farm Ins.
Co., 977 F.2d 848, 851 n. 5 (3d Cir. 1992); see also Borelli v. City of Reading, 532 F.2d
950, 951-52 (3d Cir. 1976) (per curiam). We exercise plenary review under
§ 1915(e)(B)(ii) with respect to the grant of summary judgment. See Allah v. Ricci, 532
Fed. App’x. 48, 50 (3d Cir. 2013); see also Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 265 (3d Cir. 2014). We review for an abuse of discretion with respect to the denial of
reconsideration. See Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 673 (3d Cir. 1999).
We must dismiss this appeal if we find that it is frivolous or fails to state a claim on
which relief may be granted. See 28 U.S.C. § 1915(e)(B)(i)-(ii). We may summarily af-
firm the District Court’s order if we find that Thomas has not presented a substantial
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question, or that subsequent precedent or a change in circumstances warrants such action.
See 3d Cir. LAR 27. 4 and IOP 10.6.
II.
To determine whether a prison regulation is reasonable, the Supreme Court has di-
rected courts to use a test involving four factors: whether the regulation has a “valid, ra-
tional connection” to the legitimate interest justifying its use; whether prisoners possess
alternative means of exercising their rights; how the accommodation of the asserted con-
stitutional right will impact guards and other inmates as well as prison resources generally;
and whether alternatives exist that fully accommodate the exercising of the asserted right
while only bearing a de minimis cost to valid penological interests. See Turner v. Safley,
482 U.S. 78, 93 (1987).
The prison regulation at issue in this case called for the deletion of telephone num-
bers on inmates’ list of approved numbers in cases in which those numbers were duplicated
on other inmates’ lists. Thomas argues that the deletion of phone numbers on his list vio-
lated his First Amendment rights. We disagree. We find no fault in the District Court’s
application of the Turner test in this case, including its conclusions that the regulation was
rationally connected to a legitimate security interest—namely combating the abuse of the
telephone system by a large number of prisoners, many of whom were affiliated with
gangs—and that nothing in the record suggests the availability of a less restrictive option
for advancing that interest. Similarly, nothing suggests that Thomas was unable to com-
municate with his contacts through alternative means such as emails or letters. The regu-
lation also established a vetting process for authorizing the re-inclusion of duplicative
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phone numbers on prisoners’ contact lists, provided the numbers belonged to the prisoners’
legitimate personal contacts. This administrative approval process for evaluating excep-
tions to the rule lends further support for the District Court’s conclusion that the regulation
was reasonable.
Turning to Thomas’ Eighth Amendment claim, the District Court correctly noted
that, to win on this claim, Thomas needed to establish “(i) a serious medical need and (ii)
acts or omissions by prison officials that indicate deliberate indifference to that need.”
Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016). Thomas received a prescription for
a topical lotion, was medically cleared for an electric razor, and was offered an electric
razor that had been ordered by the prison. Given these facts, we find no fault in the District
Court’s conclusions that Thomas failed to demonstrate that he possessed a serious medical
need and that a case of acne keloids without any other complicating factors does not qual-
ify.
Accordingly, we conclude that Thomas has not presented a substantial question and
thus summarily affirm the District Court’s order. In light of this conclusion, we hereby
deny Thomas’ motion for appointment of counsel.
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