Robert North v. KIM WHITE, Warden, FCI Fairton

BPS-359 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3480
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ROBERT NORTH; BRIAN TURK; HAO ZHU ZHU; MIN HU;
JEFF HUNTER; MIKE RAMOS; JOHN FONTANES; MIKE GALLO; RAFAEL
GONZALEZ; HERBERT HAITHCOACH; WAYNE BRYCE; CECILIO
MCDONALD; WILLIAM FRANCISCO; CHARLES CAIN; SETH FERRANTI;
RONALD G. BAILEY-EL; JESUS TINEO;
ADRIAN WILLIAMS-EL SWEAREE; FRANKLIN MCNAIR; DARRYL J.
GLOVER; JOHNNY VALENTINE; STEVEN TAYLOR; CHRISTOPHER HINES;
CARLOS HERRERA; FLOYD PORTER; JESSE MCKINLEY CARTER, JR.;
HERMAN WOODEN
v.
KIM WHITE, Warden, FCI Fairton; FEDERAL BUREAU OF PRISONS;
FEDERAL CORRECTIONAL INSTITUTE, FAIRTON, N.J.,
UNITED STATES DEPARTMENT OF JUSTICE
Jesse McKinley Carter, Jr.,
Appellant
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On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-03218)
District Judge: Honorable Jerome B. Simandle
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
September 9, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, Circuit Judges
(Filed: October 6, 2005)

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Bivens v. Six Unknown Named Agents of Fed. Bur. Of Narcotics, 403 U.S. 3881
(1971).
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OPINION
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PER CURIAM
Jesse McKinley Carter, Jr., pro se, appeals an order of the United States District
Court for the District of New Jersey dismissing his civil rights action pursuant to Federal
Rules of Civil Procedure 56©.
The procedural history and factual background of this matter are well known to the
parties and thus, we need only provide a summary here. Carter and another inmate,
Robert North, filed a counseled Bivens complaint, amended in April 2003 (“second1
amended complaint”), claiming that Warden Kim White, in her individual and official
capacities, the Bureau of Prisons, Fairton-FCI, and the Department of Justice (collectively
the “defendants”) violated their Eighth Amendment rights by engaging in triple-bunking
in the Special Housing Unit (“SHU”) and in general population at FCI-Fairton. They
alleged that triple-bunking resulted in increased tension and hostility among inmates,
reduced medical attention, decreased safety and security caused by limitations in staffing,
and a general reduction in the availability of services such as education, recreation, and
vocational training. In addition to their claim of triple-bunking in the SHU, Carter and
North also complained of other prison conditions in the SHU, namely the use of opaque

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window coverings that obstructed the inmates’ view of the outdoors, and the lack of
radios in SHU cells. They alleged that the requirement that inmates reside in the SHU for
at least eighteen months before they could be transferred to another institution violated
Due Process. They sought injunctive relief and damages.
The District Court sua sponte dismissed the Fifth Amendment Due Process claim
pursuant to 28 U.S.C. § 1915(e)(2)(B), but allowed the Eighth Amendment prison
conditions claims to proceed. The defendants filed a joint motion for summary judgment.
The District Court granting the summary judgment motion, holding that (1) Kim White
was not properly served in her individual capacity; (2) Carter lacked standing to seek
injunctive relief; (3) all of the defendants were immune from suit in their official
capacities; (4) Carter failed to exhaust his administrative remedies as to all claims except
the Eighth Amendment claim of triple-bunking; and (5) viewing the undisputed material
facts in the light most favorable to Carter, the facts failed to establish an Eighth
Amendment violation. By order entered July 29, 2004, the District Court granted
summary judgment in the defendants’ favor and dismissed the second amended complaint
with prejudice. Carter timely appealed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Carter’s appeal was
terminated for failure to pay fees. He has filed a motion to reopen the appeal and
supporting “notice”, and a motion to proceed in forma pauperis. We grant both motions.
Because the appeal lacks an arguable basis in law or fact, however, we will dismiss it

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pursuant to § 1915(e)(2)(B)(I). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
After a thorough review of the record and for essentially the same reasons set forth
by the District Court, we conclude that the Defendants were entitled to summary
judgment on all of Carter’s claims. All of the defendants are immune from suit in their
official capacities. See 28 U.S.C. §§ 2679(a) & (b)(2). Warden White is the only
defendant who is sued in her individual capacity. We agree with the District Court that
Carter failed to show good cause for failing to properly serve Warden White in her
individual capacity. However, even assuming that Warden White was properly served,
and assuming that Carter has standing, we conclude that the District Court properly
dismissed the Eighth Amendment triple-bunking claim pursuant to Rule 56©.
As the District Court correctly noted, a prison conditions claim rises to the level of
an Eighth Amendment violation only where the allegedly poor conditions seriously
deprived inmates of a basic human need such as food, clothing, shelter, medical care, and
safety. See DeShanney v. Winnebago County Dep’t of Social Services, 489 U.S. 189,
199-200 (1989). Double or triple-bunking of cells, alone, is not per se unconstitutional.
Union County Jail Inmates v. DiBuono, 713 F.2d 984, 1000 (3d Cir. 1983).
According to the undisputed facts, the temporary influx of inmates from
Washington D.C. resulted in triple-bunking of inmates in one-third of the cells in each
housing unit at FCI-Fairton. An independent corrections accrediting authority reviewed
FCI-Fairton’s conditions during the relevant time period, finding that staffing was

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sufficient to handle the temporary conditions, environmental conditions were very good,
the physical plant was very well maintained, and ventilation and light met the applicable
standard. FCI-Fairton received high commendations for it sanitation, food service and
food quality, and medical care. Notably, Carter did not allege that he was personally
denied medical care, that he was denied rehabilitation or vocational services, or that he
was physically harmed as a result of the temporary triple-bunking. Carter himself was
exposed to triple-bunking for less than a month. Absent any personal deprivation or harm
to him, Carter’s general allegations of tension, stress, and fear of increased hostility and
injury, given the totality of the circumstances, failed to constitute the kind of serious
deprivation of basic human needs required to establish an Eighth Amendment violation.
See Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997).
Likewise, assuming that Carter’s other prison conditions claims are exhausted, the
obstruction of Carter’s view of the outdoors by opaque window coverings and the lack of
radios in the SHU for the short period that he was housed in SHU fail to show that he has
been deprived of “the minimal civilized measure of life’s necessities” in violation of the
Eighth Amendment. Id.
We have considered the remaining arguments Carter makes on appeal and find
them to be meritless. This Court is required to dismiss an in forma pauperis appeal if it is
“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(I). An appeal is frivolous where none of the legal
points is arguable on its merits. See Nietzke v. Williams, 490 U.S. 319, 325 (1989).

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Carter has no arguable legal basis upon which to appeal the District Court’s order. His
appeal is therefore, frivolous and will be dismissed as such pursuant to 28 U.S.C. §
1915(e)(2)(B)(I). Appellant’s motions to reopen and to proceed in forma pauperis on
appeal are granted. Appellee’s motion to dismiss the appeal for failure to pay fees is
denied.

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