PER CURIAM

BLD-135

NOT PRECEDENTIAL

On Appeal from the United States District Court for the Western District of Pennsylvania
(D.C. Civil No. 3-14-cv-00005)
District Judge: Honorable Kim R. Gibson Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
February 16, 2017
Before: AMBRO, GREENAWAY, Jr., and SCIRICA, Circuit Judges OPINION PER CURIAM

Gabriel Rosa-Diaz appeals pro se from the judgment of the United States District Court for the Western District of Pennsylvania entered following a jury trial in his 42 U.S.C. § 1983 action. We will summarily affirm.

I.

Rosa-Diaz initiated this action in 2014 against various employees of the Pennsylvania Department of Corrections—mostly officials at SCI-Cresson—alleging that they failed to protect him from being assaulted by another inmate (Peter Robinson), and then improperly adjudicated related misconduct reports and a grievance he filed after the incident.

According to Rosa-Diaz's complaint, Defendant Sergeant Dow was aware of Robinson's history of violence, but nonetheless permitted Robinson "to run back and forth freely from A-wing to B-wing," where Rosa-Diaz was housed. On April 8, 2012, Robinson allegedly confronted Rosa-Diaz on B-wing about an unpaid debt—advising that he would return the next day to collect, using force if necessary. Rosa-Diaz claimed that he reported this threat to Dow, telling him that he (Rosa-Diaz) "didn't feel comfortable with Robinson continuing to be allowed to enter B-wing from A-wing chasing [him] down trying to extort him." Rosa-Diaz claimed that Robinson returned the next day, as promised, and stabbed him in the head with a shank, and that Defendant Corrections Officer Sheridan, after witnessing the attack, "took off running in the opposite direction." Rosa-Diaz claimed that he ultimately fended off the attack and then stabbed Robinson in self-defense. Dow later intervened and separated the inmates.

As a result of this incident, Rosa-Diaz was issued two misconduct reports—one issued by Sheridan for fighting, and the other issued by Dow for allegedly threatening Dow after he attempted to restrain Rosa-Diaz. Defendant Hearing Examiner Robert Reed later found Rosa-Diaz guilty on both reports, sentencing him to a total of 360 days' disciplinary time, and ordering him to pay costs associated with the incident. Rosa-Diaz fully appealed these decisions to Defendant Donna Varner, the DOC's Chief Grievance Officer, and she affirmed Reed's decisions. Rosa-Diaz also unsuccessfully filed a grievance against Dow, alleging that Dow improperly permitted Robinson to access B-wing. Defendant Unit Manager Bearjar rejected this grievance, concluding that Robinson had authorization to access B-wing because he was a representative for the Inmate Betterment Organization. Defendant Superintendent Cameron, and eventually Varner, affirmed Bearjar's determination on this basis.

Rosa-Diaz asserted failure-to-protect and due process claims against Dow and Sheridan; a due process claim against Reed premised on the alleged improper adjudication of his misconduct report; and due process and "supervisor liability" claims against the remaining Supervisor Defendants—Bearjar, Cameron, Varner, Business Officer Beck, Chief Hearing Examiner Lewis, and Secretary of Corrections Wetzel—premised on their alleged failure to appropriately resolve his misconduct reports and grievance. He also asserted state negligence and intentional-infliction-of-emotional-distress claims.

Early in the litigation, the District Court granted Defendants' partial motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6), and dismissed all claims except the failure-to-protect claim against Dow. Ultimately a jury found that Dow did not act with deliberate indifference in failing to protect Rosa-Diaz from Robinson's attack. Rosa-Diaz timely appealed from the District Court's entry of judgment following the jury verdict.

II.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court's dismissal under Rule 12(b)(6), W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 (3d Cir. 2010), and ask whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). We may summarily affirm the District Court where "it clearly appears that no substantial question is presented." 3d Cir. I.O.P. 10.6 (2015).

The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust available administrative remedies before filing suit, see 42 U.S.C. § 1997e(a), and this "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust administrative remedies is an affirmative defense, but was appropriately raised here in Defendants' motion to dismiss—with respect to the failure-to-protect claim against Sheridan—because Rosa-Diaz "did not even attempt to file a grievance [against Sheridan] for 'initial review.'" Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Rosa-Diaz does not dispute that he failed to name Sheridan in his grievance related to the assault—and because it would have been "practicable" for him to do so—his failure-to-protect claim is procedurally defaulted. See Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004). The District Court properly dismissed it because no basis exists to excuse this default.

Rosa-Diaz also claimed that Reed denied him due process in adjudicating his misconduct reports because he "disregarded evidence that clearly place[d] liability [on] inmate Robinson." In other words, he claimed that Reed improperly weighed the evidence. But "a reviewing court need only find that the [] decision had 'some basis in fact' in order to affirm the decision as comporting with the Due Process Clause." Denny v. Schultz, 708 F.3d 140, 145 (3d Cir. 2013) (quoting Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 456 (1985)). This standard was met here. Reed specifically relied on the written reports provided by Dow and Sheridan, and credited these reports over the evidence provided by Rosa-Diaz.

He also asserted a due process claim based on the assessment of damages arising from the misconduct reports. He did not, however, identify any particular procedural problems with the Holloway hearing itself, the subsequent calculation of damages, or the prison's right to charge him for medical costs he caused; he merely claimed—like his other due process claim—that any assessment was improper because Robinson was the responsible party. This claim fails for the same reason as his weight-of-the-evidence claim, and it is clear that Defendants otherwise afforded him appropriate process in assessing damages. See Wolff v. McDonnell, 418 U.S. 539, 563 (1974) (due process, in the prison context, generally requires only "advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the [] action taken").

As to the other claims against the Supervisor Defendants, in the absence of "policy, practice, or custom"—which Rosa-Diaz did not allege here—supervisory liability may exist under § 1983 only if a defendant "participated in violating plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates' violations." Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)). The District Court properly dismissed his Eighth Amendment claims because he premised them solely on the Supervisor Defendants' after-the-fact participation in reviewing grievances or appeals, generally an insufficient basis to establish "personal knowledge" for purposes of § 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988); see also George v. Smith, 507 F.3d 605, 609 (7^th Cir. 2007) ("Ruling against a prisoner on an administrative complaint does not cause or contribute to the [constitutional] violation.").

The District Court also properly dismissed the due process claims against the Supervisor Defendants because they afforded Rosa-Diaz appropriate process in resolving his misconduct reports, see Wolff, 418 U.S. at 563, and "a state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause." Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7^th Cir. 1996). In any event, Rosa-Diaz has not identified any genuine problem with the grievance-resolution procedures, beyond his dissatisfaction with the outcome.

Finally, we have reviewed the District Court's order disposing of the pretrial motions in limine and perceive no abuse of discretion. See Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005) ("[D]eterminations concerning the admissibility of evidence are reviewed for an abuse of discretion."). And because Rosa-Diaz failed to file post-verdict motions, we are "without power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01 (2006) (quoting Cone v. W. Va. & Paper Co., 330 U.S. 212, 218 (1947)). Accordingly, we will summarily affirm.