Gregory Bonaparte v. Debbie Beck, sued in her individual

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3118
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GREGORY BONAPARTE,
Appellant
v.
DEBBIE BECK, sued in her individual and official capacity;
JAY LITZINGER, sued in his individual and official capacity;
J. BOWE, sued in his individual and official capacity;
STEVE JASO, sued in his individual and official capacity; M. MILLER;
JOHN YOST, sued in his individual and official capacity;
D. SCOTT DODRILL, sued in his individual and official capacity; L. FENCHAK
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 3:07-cv-00294)
District Judge: Honorable Kim R. Gibson
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Submitted Pursuant to Third Circuit LAR 34.1(a)
March 16, 2010
Before: MCKEE, FUENTES and NYGAARD, Circuit Judges
(Opinion filed: March 22, 2010)
_________
OPINION
_________
PER CURIAM

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Gregory Bonaparte, a pro se inmate, appeals the order of the District Court (1)
granting summary judgment for Appellants on eleven counts for failure to exhaust
administrative remedies, and (2) dismissing the remaining two counts of his complaint for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons that
follow, we will affirm in part, vacate in part, and remand for further proceedings.
I.
In November 2007, Bonaparte, then a prisoner at Federal Correctional Institution –
Loretto (“Loretto”) in Pennsylvania, filed a Bivens action in the District Court against
seven Loretto prison officials. Bonaparte’s complaint set forth more than 100 paragraphs
of factual allegations and thirteen counts of constitutional violations. Bonaparte claimed
that in retaliation for filing grievance forms, defendants reassigned him to a degrading
job, filed false incident reports, failed to timely file his administrative appeal, terminated
his job, and segregated him in confinement. He claimed that the defendants violated his
Due Process and Equal Protection Rights, as well as his rights under the First
Amendment. Bonaparte also raised general claims of racial harassment, alleging that the
above actions were never imposed on white inmates who filed grievances against
Defendant Beck.
Defendants moved to dismiss Bonaparte’s complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. The matter was referred to a Magistrate Judge who
recommended that the court, sua sponte, convert defendants’ Rule 12(b)(6) motion to

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dismiss into a motion for summary judgment. In April 2009, the Magistrate Judge
submitted a Report and Recommendation, recommending that the court grant summary
judgment for defendants on eleven counts for failing to exhaust administrative remedies
and dismiss the remaining two counts for failing to state a claim under 28 U.S.C. §
1915(e)(2)(B). By order entered May 27, 2009, the District Court adopted the report and
recommendation, dismissing Bonaparte’s claims against all defendants. The District
Court received Bonaparte’s objections to the Magistrate Judge’s Report after issuing the
order. On Bonaparte’s motion, the court reconsidered the matter de novo on June 19,
2009, and reached the same result, vacating and reinstating the May 27, 2009 order.
Bonaparte now appeals from the District Court’s order.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s entry of summary judgment and dismissal for
failure to state a claim. See Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 172 (3d Cir.
2009); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We may affirm on
any grounds supported by the record. Id.
Defendants brought a motion to dismiss, but referred to matters outside the
pleadings, and thus, the District Court partially treated their motion as one for summary
judgment under Rule 56. See Fed. R. Civ. P. 12(d). A district court must provide notice
of its intention to convert a motion to dismiss and allow a plaintiff a “reasonable

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The Government argues that the District Court dismissed the remaining two1
claims under a summary judgment standard. However, the Magistrate Judge’s Report,
which was adopted by the District Court, recommends dismissing Counts I and II for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). (See Report, p. 1.) To the
extent that Bonaparte argues that the Magistrate Judge lacked authority to issue a Report
and Recommendation, a district judge may authorize a magistrate judge to prepare
findings and recommendations on dispositive matters. See 28 U.S.C. § 636(b)(1);
N.L.R.B. v. Frazier, 966 F.2d 812, 816 (3d Cir. 1992).
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opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d); see also Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989). The failure to give
adequate notice does not, however, require automatic reversal; it may be excused if the
failure was a “harmless error.” Id. at 342. To the extent that the District Court may have
failed to give Bonaparte adequate opportunity to respond to its conversion, we conclude
that any such error was harmless, as Bonaparte concedes that he did not properly exhaust
administrative remedies and abandons all claims against all Defendants other than
Defendant Beck. (See Appellant Br., p. 2, n. 1.)
The District Court dismissed Bonaparte’s remaining two claims - retaliation claims
the Defendants concede were exhausted - for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e). (See Report, p. 1.) When reviewing a complaint dismissed under § 1915, this1
Court applies the same standard provided in Rule 12(b)(6). See Tourscher, 184 F.3d at
240. In determining whether a district court properly dismissed a complaint under Rule
12(b)(6), this Court must “accept all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine whether, under any reasonable

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reading of the complaint, the plaintiff may be entitled to relief.” 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 claim that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A prisoner bringing a retaliation claim must show that: (1) the conduct that
triggered the alleged retaliation was constitutionally protected; (2) he suffered an adverse
action at the hands of prison officials that “was sufficient to deter a person of ordinary
firmness from exercising his [constitutional] rights”; and (3) there is “a causal link
between the exercise of his constitutional rights and the adverse action taken against
him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229
F.3d 220, 225 (3d Cir. 2000)). The District Court concluded that Bonaparte did not meet
the first prong of this test because the grievance he filed against Defendant Beck, in
which he asked for a transfer, was not constitutionally protected conduct. (See Report, p.
7.)
Having carefully reviewed the record and the parties’ submissions, we conclude
that the facts that Bonaparte alleged were sufficient to state at least the first two prongs of
a claim of retaliation, especially given that Bonaparte is proceeding pro se. See Alston v.
Parker, 363 F.3d 229, 234 (3d Cir. 2004) (stating that courts should construe pro se
complaints liberally). Bonaparte’s complaint specifically alleges that he filed a grievance

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requesting a transfer to another cable line because his supervisor “was disrespectful when
communicating with him” and because she “did not favor him leaving his job to go and
prepare his legal materials.” (See Complaint, p. 3.) Bonaparte further alleged that in
retaliation for filing the grievances, his supervisor filed a false incident report against
him. (See Complaint, p. 8.) Unlike the Magistrate Judge, we believe these allegations are
sufficient to meet the pleading requirements for the first and second prongs of the Rauser
test. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (holding that pro se
prisoner’s allegations that he was falsely charged with misconduct in retaliation for filing
a complaint against a prison officer stated claim for retaliation in violation of the First
Amendment). The Magistrate Judge did not make a determination as to whether
Bonaparte met the third prong of the Rauser test, and we will remand for such a
determination.
If, on remand, the District Court determines that the facts alleged in the complaint
are insufficient to meet the third prong of a retaliation claim, Bonaparte should be
provided an opportunity to file an amended complaint. An indigent plaintiff who has
filed a complaint subject to dismissal under 28 U.S.C. § 1915 should be given an
opportunity to file an amended complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002).
III.
In light of the above, we will vacate the District Court’s order dismissing Counts I

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and II for failure to state a claim, and we will remand for further proceedings. We will
affirm the District Court’s order granting summary judgment as to Bonaparte’s remaining
claims for failure to exhaust administrative remedies.

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