Smith v. Mensinger, 99-1382

99-1382 | 3rd Cir. | Jun 11, 2002

Before: BECKER, Chief Judge, and McKEE and(cid:13) WEIS, Circuit Judges.(cid:13) (Opinion filed: June 11, 2002)(cid:13) DEENA J. SCHNEIDER, ESQ. (Argued)(cid:13) MATTHEW B. HOLMWOOD, ESQ.(cid:13) Schnader Harrison Segal &(cid:13) Lewis LLP(cid:13) 1600 Market Street, Suite 3600(cid:13) Philadelphia, PA 19103-7286(cid:13) Attorneys for Appellant(cid:13) CALVIN R. KOONS, ESQ. (Argued)(cid:13) JOHN G. KNORR, III, ESQ.(cid:13) Office of Attorney General(cid:13) Appellate Litigation Section(cid:13) 15th Floor, Strawberry Square(cid:13) Harrisburg, PA 17120(cid:13) Attorneys for Appellees(cid:13) OPINION OF THE COURT(cid:13) McKEE, Circuit Judge.(cid:13) Carl M. Smith, an inmate at the Pennsylvania State(cid:13) Correctional Facility at Frackville ("SCI-Frackville") filed this(cid:13) civil rights action under 42 U.S.C. S 1983 alleging that(cid:13) certain corrections officers and prison employees denied(cid:13) him due process of law and/or violated his Eighth(cid:13) Amendment right to be free from cruel and unusual(cid:13) punishment. The district court dismissed Smith’s due(cid:13) process claims against some of the defendants under FED.(cid:13) R. CIV. P. 12(b)(6), but Smith was allowed to proceed on his(cid:13) Eighth Amendment claims. The court subsequently granted(cid:13) summary judgment against Smith and in favor of the(cid:13) defendants on all of Smith’s claims. For the reasons that(cid:13) follow, we will reverse in part and affirm in part, and(cid:13) remand for further proceedings consistent with this(cid:13) opinion.(cid:13) I. Background(cid:13) A. The Misconduct Reports (cid:13) Sometime during the morning of June 3, 1995,(cid:13) Corrections Officer Robin Mensinger issued a misconduct(cid:13) report citing Smith with refusing to obey an order to return(cid:13) to his cell after cell cleanup, and for using foul language(cid:13) towards a corrections officer. Later that afternoon,(cid:13) Mensinger cited Smith in a second misconduct report for(cid:13) allegedly punching her in the eye. That evening, Sergeant(cid:13) Paulukonis issued a third misconduct report against Smith.(cid:13) That report cited Smith for assaulting corrections officers(cid:13) 2(cid:13) as they were escorting him to the Restricted Housing Unit(cid:13) ("RHU").(cid:13) Smith denies that he assaulted Mensinger or struggled(cid:13) with other corrections officers later that evening. He admits(cid:13) that he did not return to his cell when Mensinger requested(cid:13) him to, but claims that he only refused because his cell(cid:13) was still wet. According to Smith, Mensinger was drunk(cid:13) and out of control when she issued the first misconduct(cid:13) report. He claims that as he was leaving his cell during an(cid:13) organized prisoner movement later that day, he heard a(cid:13) whistle blow and looked up to see Mensinger pointing at(cid:13) him. A few seconds later, Corrections Officers Jones and(cid:13) Yoder purportedly arrived on the cell block. Smith claims(cid:13) that Mensinger told the corrections officers that Smith had(cid:13) punched her in the eye. Smith maintains that Yoder then(cid:13) handcuffed him behind his back, and walked him to a(cid:13) bench where Smith was ordered to sit down. According to(cid:13) Smith, other corrections officers (including Androshick,(cid:13) Zubris and McCole) entered the area a few minutes later.(cid:13) The officers then purportedly grabbed Smith by both arms(cid:13) and followed Corrections Officer Novitsky to the Unit(cid:13) Manager’s Office. There, Smith claims that Yurkiewicz and(cid:13) Jones joined the group and Yoder left.(cid:13) Once inside the Unit Manager’s Office, the officers(cid:13) allegedly rammed Smith’s head into walls and cabinets and(cid:13) knocked him to the floor. He claims that while he was on(cid:13) the floor, Yurkiewicz kicked and punched him, and(cid:13) Novitsky "pulled him to his feet, pushed him against the(cid:13) wall, punched him in the stomach, and choked him with(cid:13) both hands. . . ." Brief for Appellant at 15. Smith alleges(cid:13) that Paulukonis saw the beating, but did nothing to(cid:13) intervene or restore order.(cid:13) Smith further alleges that after the beating in the Unit(cid:13) Manager’s office, two or three guards took him to the RHU(cid:13) where Yurkiewicz placed him face-down on a bench,(cid:13) tightened the handcuffs as much as possible, and hit him(cid:13) on the back of the head while verbally threatening him and(cid:13) showering him with racial epithets.(cid:13) B. Smith’s Injuries(cid:13) Smith alleges that his head was bleeding and the beating(cid:13) also resulted in pain in his ribs, ears, and right eye. His(cid:13) 3(cid:13) ribs were purportedly red and bruised and remained sore(cid:13) for a couple of weeks after the beating. Smith was seen by(cid:13) the medical staff each of the following two days, but(cid:13) according to the medical records, he was treated only for(cid:13) chronic asthma. In his deposition, Smith stated that a(cid:13) doctor gave him ice for his ribs and told him to keep a wet(cid:13) towel against them the day after the incident. However, a(cid:13) report prepared by the defendants’ medical expert states(cid:13) that an examination of Smith soon after the incident failed(cid:13) to disclose any wounds, marks, or bruises near his rib cage(cid:13) or anywhere else.(cid:13) C. The Aftermath of the June 3, 1995 Incident(cid:13) On June 4, 1995, Pennsylvania State Trooper Leo Luciani(cid:13) interviewed Smith regarding Smith’s alleged attack of(cid:13) Mensinger. During that interview Luciani purportedly(cid:13) showed Smith a photograph of Mensinger that Smith(cid:13) claims supports his claim that he never hit her in the face.(cid:13) Nevertheless, the Commonwealth filed a criminal complaint(cid:13) against Smith based upon Mensinger’s allegation, and(cid:13) Luciani testified for the prosecution at the preliminary(cid:13) hearing on those charges. The charges included assault,(cid:13) assault by a prisoner, and retaliation for past official action.(cid:13) The Commonwealth subsequently added the charge of(cid:13) disorderly conduct, and Smith eventually pled nolo(cid:13) contendere to that charge. The trial court then granted the(cid:13) Commonwealth’s request to nol pros the remaining charges.(cid:13) Meanwhile, a hearing on the three misconduct reports(cid:13) was scheduled at SCI-Frackville, and Smith completed a(cid:13) "Request for Representation" form listing two inmates he(cid:13) wanted to call as witnesses at that hearing. He claims that(cid:13) those two inmates would have testified that he did not(cid:13) strike Mensinger as she had charged. When Smith arrived(cid:13) at the hearing, Hearing Officer Mary Canino informed him(cid:13) that his witnesses were not available and that the hearing(cid:13) would be delayed until that afternoon.1 However, the(cid:13) _________________________________________________________________(cid:13) 1. Smith contends that his witnesses were not available because they(cid:13) were waiting for their own hearings on misconduct notices which "the(cid:13) drunk and outer [sic] control" Mensinger had also issued to them on(cid:13) June 3, 1995. App. at 61.(cid:13) 4(cid:13) hearing did not proceed that afternoon, and Smith was(cid:13) transferred to the State Correctional Institution at Mahoney(cid:13) ("SCI-Mahoney") the next day.(cid:13) Smith’s misconduct hearing reconvened at SCI-Mahoney(cid:13) a few days later. However, since Smith’s witnesses(cid:13) remained at SCI-Frackville, Canino offered to continue the(cid:13) hearing to afford Smith an opportunity to submit written(cid:13) statements from his witnesses. Smith refused the offer(cid:13) because he did not trust that prison officials would obtain(cid:13) accurate statements. Rather than submit those statements,(cid:13) Smith sought a continuance in order to attempt to recover(cid:13) the allegedly exculpatory photograph that Trooper Luciani(cid:13) had shown him. Canino denied Smith’s request for a(cid:13) continuance, and Smith’s hearing on the misconduct(cid:13) reports proceeded without his witnesses.(cid:13) Canino credited the testimony against Smith, and found(cid:13) Smith guilty of the conduct charged in all three misconduct(cid:13) reports. He received seven months disciplinary confinement(cid:13) for assaulting Mensinger and for resisting the officers who(cid:13) were escorting him to the RHU. Canino also ordered that(cid:13) Smith’s prison account be assessed for "medical and other(cid:13) expenses" to pay for contact lenses for Officer Mensinger(cid:13) even though no evidence of any such expenses had been(cid:13) produced at the hearing. App. at 63. Accordingly, $165.00(cid:13) was deducted from Smith’s inmate account. Smith(cid:13) challenged that action by filing a grievance in which he(cid:13) complained that there was insufficient evidence to debit his(cid:13) account to buy Mensinger lenses. He also unsuccessfully(cid:13) appealed to the Program Review Committee, and to(cid:13) Superintendent Dragovich.(cid:13) II. Procedural History(cid:13) On May 23, 1997, Smith filed the instant pro se civil(cid:13) rights action under 42 U.S.C. S 1983 against Corrections(cid:13) Officers Mensinger, Novitsky, and Paulukonis; as well as(cid:13) Hearing Officer Canino, and Business Manager Burgard.(cid:13) The defendants were each sued individually and in their(cid:13) official capacity. Smith later joined Corrections Officers(cid:13) Yurkiewicz, Androshick, McCole, Zubris, and Jones as well(cid:13) as Superintendent Dragovich.(cid:13) 5(cid:13) Smith claimed that several corrections officers used(cid:13) excessive force during the June 3 incident, and that they(cid:13) thereafter falsified reports regarding that incident in order(cid:13) to cover up their use of excessive force. Smith also claimed(cid:13) that Canino violated his due process rights by improperly(cid:13) assessing his inmate account, and that Burgard and(cid:13) Dragovich did not adequately investigate his grievance on(cid:13) appeal.(cid:13) Although the district court granted Smith’s request to(cid:13) amend his Complaint to join Dragovich as a defendant, the(cid:13) court later dismissed the claim against Dragovich as well as(cid:13) Smith’s claim against unknown defendant, "John Doe."(cid:13) Mensinger, Paulukonis, Canino, and Burgard thereafter(cid:13) moved to dismiss Smith’s claims against them pursuant to(cid:13) FED. R. CIV. P. 12(b)(6). The district court granted that(cid:13) motion. In an unreported opinion, Smith v. Luciani, Nos.(cid:13) CIV.A. 97-3037, CIV.A. 97-3613, 1998 WL 151803 (E.D. Pa.(cid:13) March 31, 1998) (hereinafter "Smith I"), the district court(cid:13) explained that since Smith did not have a liberty interest in(cid:13) remaining in the general prison population, he could not(cid:13) establish a due process claim based upon being placed in(cid:13) disciplinary custody. The court also dismissed Smith’s(cid:13) claim against Mensinger based in part upon its belief that(cid:13) the claim constituted an improper collateral attack on(cid:13) Smith’s disorderly conduct conviction.(cid:13) The district court allowed Smith to proceed against the(cid:13) remaining corrections officers on his Eighth Amendment(cid:13) claim, but later granted defendants’ motion for summary(cid:13) judgment, dismissing that claim, as well. In a second(cid:13) unreported opinion, Smith v. Mensinger, No. CIV.A. 97-(cid:13) 3613, 1999 WL 178539 (E.D. Pa. March 31, 1999)(cid:13) (hereinafter "Smith II"), the court concluded that Smith(cid:13) could not prevail under the Eighth Amendment because the(cid:13) minimal nature of his injuries established that any force(cid:13) that may have been used against him must have been de(cid:13) minimis and therefore insufficient to constitute an Eighth(cid:13) Amendment violation. The court also concluded that(cid:13) whatever force the corrections officers had used was(cid:13) justified by Smith’s assault of Mensinger, and the fact that(cid:13) he struggled with the other corrections officers. The court(cid:13) did note that Smith denied assaulting Mensinger and(cid:13) 6(cid:13) struggling with corrections officers. However, the court(cid:13) refused to credit that denial because Smith offered nothing(cid:13) to support it, and the hearing officer had found him guilty(cid:13) of the charged misconduct. This appeal followed. 2(cid:13) III. Discussion(cid:13) Smith argues the district court erred in dismissing both(cid:13) his due process claim, and his Eighth Amendment claim. In(cid:13) addressing Smith’s challenge to the dismissal of his Eighth(cid:13) Amendment claim, we must first decide if he can prevail(cid:13) despite the de minimis nature of his injuries. If we decide(cid:13) that he can, we must then decide if a corrections officer(cid:13) (Paulukonis) can be found liable under the Eighth(cid:13) Amendment "merely" because he failed to intervene in the(cid:13) beating allegedly administered by his fellow corrections(cid:13) officers.3(cid:13) A. Standard of Review(cid:13) In reviewing a grant of summary judgment, we must view(cid:13) the facts in the light most favorable to the non-moving(cid:13) party. See Brooks v. Kyler, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d 102, 105 n.5 (3d Cir.(cid:13) 2000). Summary judgment is appropriate only if "there is(cid:13) no genuine issue as to any material fact and . . . the(cid:13) moving party is entitled to a judgment as a matter of law."(cid:13) Fed. R. Civ. P. 56(c).(cid:13) _________________________________________________________________(cid:13) 2. The parties have since successfully mediated the claims arising from(cid:13) the debit of Smith’s account. Accordingly, they are not before us.(cid:13) 3. Smith alleges that he was beaten on June 3, 1995, and he filed suit(cid:13) May 23, 1997. The Prison Litigation Reform Act ("PLRA") became effective(cid:13) on April 26, 1996, before Smith sued. The PLRA requires that inmates(cid:13) exhaust claims challenging prison conditions before filing suit under(cid:13) S 1983. See Ghana v. Holland, 226 F.3d 175" date_filed="2000-08-29" court="3rd Cir." case_name="Dr. Emory M. Ghana v. J. T. Holland">226 F.3d 175, (3d Cir. 2000). Smith’s(cid:13) Eighth Amendment claim is subject to that requirement. See Booth v.(cid:13) Churner, 532 U.S. 731" date_filed="2001-05-29" court="SCOTUS" case_name="Booth v. Churner">532 U.S. 731, 741 (2001). However, exhaustion is an(cid:13) affirmative defense which can be waived if not properly preserved by a(cid:13) defendant. See Ray v. Kertes, 285 F.3d 287" date_filed="2002-04-03" court="3rd Cir." case_name="Frederick T. Ray v. C.O. Kertes C.O. Stolz C.O. Reed C.O. Rogers Lt. Nash Lt. Hicks Lt. A. Smith Capt. Almanshifer R. Norris Tim Launtz, Frederick Ray">285 F.3d 287 (3d. Cir. 2002). Defendants(cid:13) here have not raised any issues relating to exhaustion. Accordingly, even(cid:13) assuming that any such issue exists here, it has clearly been waived and(cid:13) we therefore need not address whether Smith has properly exhausted(cid:13) under the PLRA.(cid:13) 7(cid:13) A motion to dismiss under Fed. R. Civ. P. 12(b)(6), on the(cid:13) other hand, should not be granted unless it appears that(cid:13) the plaintiff can prove no set of facts that would entitle(cid:13) him/her to relief. See Conley v. Gibson, 355 U.S. 41" date_filed="1957-11-18" court="SCOTUS" case_name="Conley v. Gibson">355 U.S. 41, 45-6(cid:13) (1957). In undertaking that analysis, we must construe(cid:13) complaints of pro se litigants liberally. See Zilich v. Lucht,(cid:13) 981 F.2d 694" date_filed="1992-12-17" court="3rd Cir." case_name="Wayne M. Zilich v. Gary Lucht, Warden">981 F.2d 694, 694 (3d Cir. 1992). The issue of an officer’s(cid:13) duty to intervene presents a question of law, which we(cid:13) review de novo. See Holland v. New Jersey Dep’t of(cid:13) Corrections, 246 F.3d 267" date_filed="2001-04-04" court="3rd Cir." case_name="Holland v. New Jersey Department of Corrections">246 F.3d 267, 281 (3d Cir. 2001) (stating that(cid:13) questions of law are reviewed de novo).(cid:13) We will first address Smith’s Eighth Amendment claims(cid:13) and then examine his due process claim.(cid:13) B. The Eighth Amendment Claim Based Upon(cid:13) Excessive Force(cid:13) The district court correctly noted that prison guards who(cid:13) maliciously and sadistically use force against an inmate(cid:13) violate "contemporary standards of decency even if the(cid:13) resulting injuries are not significant." Smith II, 1999 WL(cid:13) 178539, at *3 (internal quotations omitted). However, after(cid:13) noting that Smith could establish an Eighth Amendment(cid:13) violation even absent evidence of serious physical injuries,(cid:13) the district court then focused exclusively on the severity of(cid:13) Smith’s injuries in denying his claim. The court stated:(cid:13) Even assuming that plaintiff could show that(cid:13) defendants acted with the requisite state of mind, the(cid:13) Court concludes that the alleged wrongdoing by(cid:13) defendants was not objectively harmful enough to(cid:13) establish a constitutional violation. Initially, the Court(cid:13) notes that the injuries suffered by plaintiff were(cid:13) relatively minor.(cid:13) . . . .(cid:13) Additionally, accepting as true plaintiff ’s version of(cid:13) the facts, including being handcuffed, punched, kicked,(cid:13) and thrown into cabinets and walls, and given the(cid:13) slight injuries suffered by plaintiff, the Court finds that(cid:13) the incident between plaintiff and defendants involved(cid:13) a de minimis use of force that was not repugnant to(cid:13) the conscience of mankind.(cid:13) 8(cid:13) Id. at *4. Thus, although the court acknowledged that the(cid:13) absence of severe injuries did not preclude Smith’s Eighth(cid:13) Amendment claim as a matter of law, the court concluded(cid:13) that the evidentiary value of the absence of injuries was too(cid:13) compelling to ignore. See id. Citing Smith’s alleged attack(cid:13) on Mensinger, the court also noted that "the record shows(cid:13) that defendants reasonably perceived plaintiff to be a threat(cid:13) and the need for application of force was apparent." Id. at(cid:13) *5.(cid:13) We begin our analysis of that ruling with the Supreme(cid:13) Court’s decision in Hudson v. McMillan, 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. 1 (1992).(cid:13) There, an inmate sued prison guards under S 1983 alleging(cid:13) that they had used excessive force in violation of the Eighth(cid:13) Amendment’s prohibition against cruel and unusual(cid:13) punishment even though he had not suffered serious(cid:13) injuries during the alleged assault. The Court therefore had(cid:13) to decide "whether the use of excessive physical force(cid:13) against a prisoner may constitute cruel and unusual(cid:13) punishment when the inmate does not suffer serious(cid:13) injury." Hudson, 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. at 4 (emphasis added). The Court(cid:13) "answer[ed] that question in the affirmative." Id.(cid:13) We applied the teachings of Hudson in Brooks v. Kyler,(cid:13) 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d 102 (3d Cir. 2000). There, an inmate sued four(cid:13) prison guards under S 1983 alleging that they had beaten(cid:13) him in violation of the Eighth Amendment. Although the(cid:13) undisputed medical evidence showed that the plaintiff(cid:13) suffered only a few scratches on his neck and hands, he(cid:13) testified that he was repeatedly punched in the head,(cid:13) stomped about the back and neck, slammed into a cell(cid:13) wall, choked, threatened, and nearly rendered unconscious.(cid:13) All of this was allegedly done while he was handcuffed. See(cid:13) Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 104. In reviewing the claim, we noted(cid:13) that it was "apparent that the type of vicious, prolonged(cid:13) attack alleged by Brooks would have resulted in far greater(cid:13) injuries than those which he indisputably sustained." Id. at(cid:13) 105. Nonetheless, we reversed the district court’s grant of(cid:13) summary judgment, stating: "[a]ccepting Brooks’s(cid:13) allegations as true, as we must, a jury could find that the(cid:13) defendants acted not merely in good-faith to maintain or(cid:13) restore discipline, but rather out of malice for the very(cid:13) purpose of causing harm." Id. at 109.(cid:13) 9(cid:13) The district court dismissed Smith’s claims before we(cid:13) decided Brooks. Accordingly, the court did not have the(cid:13) benefit of that analysis when, in denying Smith’s claims(cid:13) here, it focused almost exclusively on "the lack of a serious(cid:13) physical injury. . . ." Smith II, 1999 WL 178539, at *4,(cid:13) quoting Eppers v. Dragovich, No. 95-7673, 1996 WL(cid:13) 420830, at * 4 (E.D. Pa. July 24, 1996). It is now clear that(cid:13) the district court erred in focusing so narrowly on the(cid:13) absence of serious injuries in deciding if Smith could(cid:13) establish a claim based upon excessive force. As we clearly(cid:13) stated in Brooks, the Eighth Amendment analysis must be(cid:13) driven by the extent of the force and the circumstances in(cid:13) which it is applied; not by the resulting injuries.(cid:13) Requiring objective or independent proof of minor or(cid:13) significant injury, would ignore this teaching and place(cid:13) protection from injury, instead of protection from(cid:13) wanton force, at the hub of the Eighth Amendment.(cid:13) Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 108, citing Moore v. Holbrook, 2 F.3d(cid:13) 697, 700 (6th Cir. 1993).(cid:13) Nevertheless, it is true that the Eighth Amendment does(cid:13) not protect an inmate against an objectively de minimis use(cid:13) of force. See Hudson, 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. at 9-10. Rather, as noted(cid:13) above, the pivotal inquiry in reviewing an inmate’sS 1983(cid:13) claim for excessive force is "whether force was applied in a(cid:13) good-faith effort to maintain or restore discipline, or(cid:13) maliciously and sadistically to cause harm." Brooks, 204(cid:13) F.3d at 106, citing Hudson, 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. at 7. However, injuries(cid:13) are only one of several factors that a court must consider(cid:13) in answering that question.(cid:13) In determining whether a correctional officer has used(cid:13) excessive force in violation of the Eighth Amendment,(cid:13) courts look to several factors including: (1) the need for(cid:13) the application of force; (2) the relationship between(cid:13) the need and the amount of force that was used; (3)(cid:13) the extent of the injury inflicted; (4) the extent of the(cid:13) threat to the safety of staff and inmates, as reasonably(cid:13) perceived by responsible officials on the basis of facts(cid:13) known to them; and (5) any efforts made to temper the(cid:13) severity of the forceful response.(cid:13) 10(cid:13) Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 106, citing Hudson , 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. at 7.(cid:13) Therefore, de minimis injuries do not necessarily establish(cid:13) de minimis force.(cid:13) If we were to adopt the District Court’s reasoning, a(cid:13) prisoner could constitutionally be attacked for the sole(cid:13) purpose of causing pain as long as the blows were(cid:13) inflicted in a manner that resulted in visible (or(cid:13) palpable or diagnosable) injuries that were de minimis.(cid:13) Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 108.(cid:13) We do not, of course, suggest that a fact finder could not(cid:13) consider the de minimis nature of injuries along with all of(cid:13) the other circumstances in concluding that the force that(cid:13) was employed could not have risen to the level required for(cid:13) an Eighth Amendment violation. A properly instructed fact(cid:13) finder could, after considering all of the evidence, conclude(cid:13) that Smith’s injuries were so minor that the defendants’(cid:13) account of the incident is more credible than Smith’s,(cid:13) and/or that the force used was not of constitutional(cid:13) dimension. That may have been exactly what the district(cid:13) court did here. However, that is an issue of fact to be(cid:13) resolved by the fact finder based upon the totality of the(cid:13) evidence; it is not an issue of law a court can decide.4(cid:13) Punching and kicking someone who is handcuffed behind(cid:13) his back and under the control of at least six prison guards(cid:13) as he is being thrown into cabinets and walls is"repugnant(cid:13) to the conscience of mankind," absent the extraordinary(cid:13) circumstances necessary to justify that kind of force.(cid:13) Hudson, 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. at 10. Smith alleges he was the victim of(cid:13) an unprovoked and unjustified beating. The district court(cid:13) dismissed his Eighth Amendment claims, noting that"the(cid:13) record shows that defendants reasonably perceived plaintiff(cid:13) to be a threat and the need for the application of force was(cid:13) _________________________________________________________________(cid:13) 4. In Brooks, we noted that when courts focus on the extent of the(cid:13) injury, it is important to recognize that "an inmate who is proceeding pro(cid:13) se, is in a decidedly difficult position from which to generate ‘record(cid:13) evidence’ on his behalf . . . [u]nder these circumstances, his affidavits(cid:13) . . . are about the best that can be expected from him [at summary(cid:13) judgment phase of] the proceedings." Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 108 n.7(cid:13) (emphasis added), quoting Norman v. Taylor, 25 F.3d 1259" date_filed="1994-06-16" court="4th Cir." case_name="Allain Delont Norman v. Otis Taylor, Deputy Sergeant">25 F.3d 1259, 1265 (4th(cid:13) Cir. 1994) (Hall, J., dissenting).(cid:13) 11(cid:13) apparent." Smith II, 1999 WL 178539, at *5. The court(cid:13) reached that conclusion in part because it found that(cid:13) Smith had created a disturbance by "allegedly punching(cid:13) C.O. Mensinger twice in the eye," as well as"continually(cid:13) struggling with the defendants . . . ." Id . (emphasis added).(cid:13) However, Smith alleges that he was handcuffed behind his(cid:13) back during the "disturbance," and he maintains he did not(cid:13) hit Mensinger or struggle with the guards as they punched(cid:13) and kicked him, and rammed his head into the wall. If we(cid:13) accept Smith’s version of the facts as true, as we must,(cid:13) there was simply no justification for the defendants’(cid:13) conduct, and the district court’s ruling to the contrary can(cid:13) not stand.5(cid:13) Defendants argue that we should nevertheless affirm the(cid:13) grant of summary judgment in favor of Officers Androshick,(cid:13) McCole, Zubris, and Jones because Smith concedes that he(cid:13) is not sure that they participated in the beating at all.(cid:13) However, the fact that Smith has acknowledged that he(cid:13) could not see those defendants during the beating neither(cid:13) negates their involvement nor their liability as a matter of(cid:13) law. Smith testified: "Officer Yurkiewicz, Zubris,(cid:13) Androshick, McCole, Jones, all of them was in back of me(cid:13) and they were pushing my head, right, into the cabinets in(cid:13) the wall, cabinets and walls. And then after that, I was(cid:13) knocked to the floor." App. at 166 (emphasis added). He(cid:13) further testified: ". . . the full force of all the guards [was](cid:13) _________________________________________________________________(cid:13) 5. The district court was also concerned about the potential for an(cid:13) escalating confrontation with other inmates because"other prisoners on(cid:13) the cell block were not locked in their cells and were being let out into(cid:13) the yard." Smith II, 1999 WL 178539, at *5. However, Smith alleges that(cid:13) the beating occurred out of sight of the other inmates. Moreover, even if(cid:13) others could see what was occurring, the reasonableness of the force(cid:13) used would still be an issue of fact for a jury, not an issue of law for the(cid:13) court. As we noted in Brooks, "while . . . application of some force may(cid:13) have been needed" to maintain order, "[the plaintiff] was shackled at the(cid:13) time [of the beating] so that the extent of his threat to staff would not(cid:13) have been great." Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 106.(cid:13) Furthermore, even assuming that other inmates could see Smith, it is(cid:13) difficult to understand how beating a handcuffed inmate in the presence(cid:13) of other inmates in the manner Smith alleges could reasonably be(cid:13) calculated to reduce tension and restore order inside a prison.(cid:13) 12(cid:13) behind me, they rammed my head into the cabinet and into(cid:13) the wall . . . No, I didn’t say he [Yurkiewicz] did. I said all(cid:13) of them." Id. at 168 (emphasis added). That testimony is(cid:13) sufficient to create a genuine issue of material fact as to(cid:13) each of those defendants. See Brooks, 204 F.3d 102" date_filed="2000-02-18" court="3rd Cir." case_name="Alan T. Brooks v. Kyler, Superintendent Porterfield, Sgt. Rupinski, C.O. All Are Being Sued in Their Official and Individual Capacity, C.O">204 F.3d at 109.(cid:13) Moreover, it is undisputed that all of the named officers(cid:13) were in the vicinity at some point when Smith alleges he(cid:13) was beaten. The extent of each officer’s participation is thus(cid:13) a classic factual dispute to be resolved by the fact finder.(cid:13) Accordingly, we will vacate the judgment in favor of(cid:13) defendants Novitsky, Yurkiewicz, Androshick, McCole,(cid:13) Zubris, and Jones and remand the matter for further(cid:13) proceedings.(cid:13) C. Officer Paulukonis’ Duty to Intervene(cid:13) As noted earlier, Smith does not allege that Paulukonis(cid:13) took part in the beating. Rather, Smith claims that(cid:13) Paulukonis can be liable under the Eighth Amendment if he(cid:13) failed to intervene. We agree. We hold that a corrections(cid:13) officer’s failure to intervene in a beating can be the basis of(cid:13) liability for an Eighth Amendment violation underS 1983 if(cid:13) the corrections officer had a reasonable opportunity to(cid:13) intervene and simply refused to do so. Furthermore, we(cid:13) hold that a corrections officer can not escape liability by(cid:13) relying upon his inferior or non-supervisory rank vis-a-vis(cid:13) the other officers.(cid:13) Courts have held that a police officer has a duty to take(cid:13) reasonable steps to protect a victim from another officer’s(cid:13) use of excessive force, even if the excessive force is(cid:13) employed by a superior. "If a police officer, whether(cid:13) supervisory or not, fails or refuses to intervene when a(cid:13) constitutional violation such as an unprovoked beating(cid:13) takes place in his presence, the officer is directly liable(cid:13) under Section 1983." Byrd v. Clark, 783 F.2d 1002" date_filed="1986-03-03" court="11th Cir." case_name="Sun Cha Byrd v. Tommy Clark, Clifford Black, Larry Collins, Joey Whitley, Drew Solomon, and the City of Fitzgerald, Georgia">783 F.2d 1002, 1007(cid:13) (11th Cir. 1986); accord Putman v. Gerloff, 639 F.2d 415" date_filed="1981-01-28" court="8th Cir." case_name="Andrew Putman v. Elmer Gerloff">639 F.2d 415,(cid:13) 423 (8th Cir. 1981); Byrd v. Brishke, 466 F.2d 6" date_filed="1972-07-18" court="7th Cir." case_name="Thomas Byrd v. William P. Brishke">466 F.2d 6, 11 (7th(cid:13) Cir. 1972). However, an officer is only liable if there is a(cid:13) realistic and reasonable opportunity to intervene. See Clark,(cid:13) 783 F.2d 1002" date_filed="1986-03-03" court="11th Cir." case_name="Sun Cha Byrd v. Tommy Clark, Clifford Black, Larry Collins, Joey Whitley, Drew Solomon, and the City of Fitzgerald, Georgia">783 F.2d at 1007 (instructing the district court upon(cid:13) remand to determine whether the officer was in a position(cid:13) 13(cid:13) to intervene); Brishke, 466 F.2d 6" date_filed="1972-07-18" court="7th Cir." case_name="Thomas Byrd v. William P. Brishke">466 F.2d at 11 (liability for failure to(cid:13) intervene exists only if the beating occurred in the officer’s(cid:13) presence or was otherwise within his knowledge); Putman,(cid:13) 639 F.2d 415" date_filed="1981-01-28" court="8th Cir." case_name="Andrew Putman v. Elmer Gerloff">639 F.2d at 423-24 (liability exists only if the non-(cid:13) intervening officer saw the beating or had time to reach the(cid:13) offending officer).(cid:13) In Baker v. Monroe Township, 50 F.3d 1186" date_filed="1995-05-01" court="3rd Cir." case_name="Inez Baker v. Monroe Township Officer Robert Armstrong (Individually">50 F.3d 1186 (3d. Cir.(cid:13) 1995), we held that a police officer who was the senior(cid:13) officer involved in executing a search warrant could be(cid:13) liable in a suit under S 1983 even though he did not(cid:13) personally use excessive force, nor direct anyone else to. We(cid:13) concluded that "there [was] sufficient evidence to permit an(cid:13) inference that [the officer] knew of and acquiesced in the(cid:13) treatment the [plaintiffs] were receiving at the hands of the(cid:13) other officers acting under his supervision." Baker, 50 F.3d(cid:13) at 1193. The specific circumstances in Baker required us to(cid:13) determine if the plaintiff had shown that the senior officer(cid:13) had "actual knowledge and acquiescence." Id. at 1194,(cid:13) quoting Rode v. Dellarciprete, 845 F.2d 1195" date_filed="1988-04-28" court="3rd Cir." case_name="Vivian Rode v. Nicholas Dellarciprete">845 F.2d 1195, 1207 (3d Cir.(cid:13) 1988). Although the specific context of our analysis only(cid:13) involved an officer’s liability for the actions of police officers(cid:13) under his supervision, we do not interpret Baker as(cid:13) suggesting that liability for failure to intervene is solely(cid:13) limited to supervisors or officers who outrank their(cid:13) offending colleagues.(cid:13) The duty to uphold the law does not turn upon an(cid:13) officer’s rank. It is neither affected by, nor proportional to,(cid:13) a non-intervening officer’s relationship to an offending(cid:13) colleague. The approving silence emanating from the officer(cid:13) who stands by and watches as others unleash an(cid:13) unjustified assault contributes to the actual use of(cid:13) excessive force, and we cannot ignore the tacit support(cid:13) such silence lends to those who are actually striking the(cid:13) blows. Such silence is an endorsement of the constitutional(cid:13) violation resulting from the illegal use of force. 6 It is(cid:13) incompatible with the restrictions imposed under the(cid:13) _________________________________________________________________(cid:13) 6. The message that emanates from such silence was vocalized in(cid:13) Hudson where the supervisor allegedly stood by and told officers who(cid:13) were beating an inmate "not to have too much fun." Hudson, 503 U.S.(cid:13) at 4.(cid:13) 14(cid:13) Eighth Amendment, and is therefore unacceptable. We will(cid:13) not immunize such conduct by suggesting that an officer(cid:13) can silently contribute to such a constitutional violation(cid:13) and escape responsibility for it. The restriction on cruel and(cid:13) unusual punishment contained in the Eighth Amendment(cid:13) reaches non-intervention just as readily as it reaches the(cid:13) more demonstrable brutality of those who unjustifiably and(cid:13) excessively employ fists, boots or clubs.(cid:13) Although our case law refers to police officers, not(cid:13) corrections officers, this does not change our analysis.7(cid:13) Both are law enforcement officers, both are sworn to uphold(cid:13) the law, and both are authorized to use force (even deadly(cid:13) force) toward that end. We are, of course, aware of the(cid:13) obvious security concerns inside the close confines of a(cid:13) prison. However, that is simply one factor that must be(cid:13) considered in determining if a particular application of force(cid:13) is reasonable. It does not suggest a different Eighth(cid:13) Amendment inquiry for corrections officers as opposed to(cid:13) police officers. The law does not allow either to condone or(cid:13) cover up the use of excessive force. Similarly, neither can(cid:13) escape liability by turning either a blind eye or deaf ear to(cid:13) the illegal conduct of their colleagues.(cid:13) Therefore, "if [Smith] can show at trial that an officer(cid:13) attacked him while [Paulukonis] ignored a realistic(cid:13) opportunity to intervene, he can recover." Miller v. Smith,(cid:13) 220 F.3d 491" date_filed="2000-07-10" court="7th Cir." case_name="Bogi Miller v. Lionel A. Smith, and Kevin Brower">220 F.3d 491, 495 (7th Cir. 2000). Moreover, neither rank(cid:13) nor supervisory status is a factor in assessing whether(cid:13) Paulukonis had "a realistic opportunity to intervene." Id.8(cid:13) _________________________________________________________________(cid:13) 7. We have, however, held that a corrections officer’s acquiescence can(cid:13) result in liability under S 1983 in a very different context than we are(cid:13) confronted with here. See Curtis v. Everette, 489 F.2d 516" date_filed="1973-12-17" court="3rd Cir." case_name="Warren Curtis v. Angus Russell Everette">489 F.2d 516 (3rd Cir.(cid:13) 1973).(cid:13) 8. Although it is clear that Paulokonis’ junior rank and lack of(cid:13) supervisory status does not immunize him from liability for failing to(cid:13) intervene, we do not suggest that a fact finder could not conclude that(cid:13) the conduct of a supervisor who fails to intervene is even more(cid:13) reprehensible and blameworthy than that of a more junior officer. The(cid:13) fact that rank does not shield one from liability does not mean that a(cid:13) fact finder must ignore the even greater dereliction of duty that occurs(cid:13) when a supervisor tolerates the kind of misconduct that is alleged here.(cid:13) 15(cid:13) There is some evidence that Paulukonis witnessed the(cid:13) beating that his fellow officers allegedly administered to(cid:13) Smith. Smith alleges that Paulukonis stated in his(cid:13) misconduct report that "[t]he minimum amount of force(cid:13) was used to place inmate Smith onto the floor." App. at(cid:13) 329. This appears to be based upon first-hand observations(cid:13) Paulukonis made while standing at the door of the Unit(cid:13) Manager’s office during the incident. Smith further testified(cid:13) that the door of the office remained open throughout the(cid:13) incident and that Paulukonis saw the beating. A fact finder(cid:13) could conclude that Paulukonis knew that his fellow(cid:13) officers were using excessive force against Smith, had an(cid:13) opportunity to intervene, but refused to do so. Accordingly,(cid:13) the district court erred in dismissing Smith’s Eighth(cid:13) Amendment claim against Paulukonis.(cid:13) D. Smith’s Due Process Claim(cid:13) In a separate opinion, the district court also held that(cid:13) Smith could not establish a due process claim under Griffin(cid:13) v. Vaughn, 112 F.3d 703" date_filed="1997-05-05" court="3rd Cir." case_name="Jerome Griffin v. Don Vaughn Hugh Owens B.K. Smith Johnson Joseph Chesney Tim Henry Joseph Lehman Glenn Hopey Michael Barone Searfoss Lucas Arthur Auxer Jeffrey Beard">112 F.3d 703 (3d Cir. 1997). See Smith I, 1998(cid:13) WL 151803, at *5. The district court reasoned that Smith(cid:13) "was subjected to seven months disciplinary time, a period(cid:13) of time half of that implicated in Griffin." Id. The court(cid:13) reasoned that, even assuming that the misconduct reports(cid:13) were issued to cover up the use of excessive force, the(cid:13) disciplinary sanction still did not constitute a due process(cid:13) violation as it did not rise to the level of an"atypical and(cid:13) significant hardship in relation to the ordinary incidents of(cid:13) prison life." Id., quoting Griffin , 112 F.3d 703" date_filed="1997-05-05" court="3rd Cir." case_name="Jerome Griffin v. Don Vaughn Hugh Owens B.K. Smith Johnson Joseph Chesney Tim Henry Joseph Lehman Glenn Hopey Michael Barone Searfoss Lucas Arthur Auxer Jeffrey Beard">112 F.3d at 706.(cid:13) Smith argues that the district court misinterpreted the(cid:13) basis of his due process claim. Smith does not claim that(cid:13) the seven months disciplinary sanction was a violation of a(cid:13) liberty interest and therefore a denial of due process.(cid:13) Rather, Smith claims that Mensinger issued a misconduct(cid:13) report to retaliate against Smith for his conduct toward(cid:13) Mensinger and to cover up a beating. Thus, Smith claims(cid:13) that the misconduct report was not intended to enforce(cid:13) prison regulations at all, and it was therefore improper to(cid:13) impose a disciplinary sanction.9 However, even assuming(cid:13) _________________________________________________________________(cid:13) 9. As noted earlier, we will interpret Smith’s pro se complaint liberally.(cid:13) See Zilich, 981 F.2d 694" date_filed="1992-12-17" court="3rd Cir." case_name="Wayne M. Zilich v. Gary Lucht, Warden">981 F.2d at 694.(cid:13) 16(cid:13) that the district court did misconstrue the crux of Smith’s(cid:13) due process claim, it is nevertheless evident that the court’s(cid:13) rejection of that claim was correct.(cid:13) In Sandin v. Conner, 515 U.S. 472" date_filed="1995-06-19" court="SCOTUS" case_name="Sandin v. Conner">515 U.S. 472 (1995), an inmate had(cid:13) been charged with multiple disciplinary infractions, but the(cid:13) inmate’s request to produce certain witnesses at his(cid:13) hearing was refused by the hearing committee because the(cid:13) witnesses were unavailable. The committee found the(cid:13) inmate guilty of the charged misconduct and sentenced him(cid:13) to 30 days in segregated confinement. Thereafter, he(cid:13) brought a S 1983 suit claiming that the hearing did not(cid:13) satisfy the requirements of due process. See Sandin, 515(cid:13) U.S. at 475-76. The Court disagreed. The Court held that(cid:13) confinement in administrative or punitive segregation will(cid:13) rarely be sufficient, without more, to establish the kind of(cid:13) "atypical" deprivation of prison life necessary to implicate a(cid:13) liberty interest. Therefore, the Court found that the(cid:13) inmate’s segregated confinement was not a denial of due(cid:13) process. See id. at 486.(cid:13) Prison disciplinary proceedings may, however, constitute(cid:13) a denial of due process in the context of a civil rights action(cid:13) under S 1983 when they are instituted for the sole purpose(cid:13) of retaliating against an inmate for his/her exercise of a(cid:13) constitutional right. In Allah v. Seiverling, 229 F.3d 220" date_filed="2000-09-28" court="3rd Cir." case_name="Allah v. Seiverling">229 F.3d 220 (3d(cid:13) Cir. 2000), we stated:(cid:13) Sandin instructs that placement in administrative(cid:13) confinement will generally not create a liberty interest.(cid:13) Retaliation may be actionable, however, even when the(cid:13) retaliatory action does not involve a liberty interest.(cid:13) [G]overnment actions, which standing alone do not(cid:13) violate the Constitution, may nonetheless be(cid:13) constitutional torts if motivated in substantial part by(cid:13) a desire to punish an individual for exercise of a(cid:13) constitutional right.(cid:13) Seiverling, 229 F.3d 220" date_filed="2000-09-28" court="3rd Cir." case_name="Allah v. Seiverling">229 F.3d at 224 (internal citations and quotation(cid:13) marks omitted).(cid:13) We have previously held that falsifying misconduct(cid:13) reports in retaliation for an inmate’s resort to legal process(cid:13) is a violation of the First Amendment guarantee of access to(cid:13) the courts. See Millhouse v. Carlson, 652 F.2d 371" date_filed="1981-06-30" court="3rd Cir." case_name="Milhouse v. Carlson">652 F.2d 371, 374 (3d(cid:13) 17(cid:13) Cir. 1981). In Millhouse, the inmate alleged that prison(cid:13) officials retaliated against him by fabricating misconduct(cid:13) charges in response to his civil rights suit against the(cid:13) prison officials. We concluded that "[s]uch allegations, if(cid:13) proven at trial, would establish an infringement of(cid:13) Millhouse’s first amendment right of access to the courts."(cid:13) Millhouse, 652 F.2d 371" date_filed="1981-06-30" court="3rd Cir." case_name="Milhouse v. Carlson">652 F.2d at 374.(cid:13) Although Millhouse also involved an allegation that prison(cid:13) officials fabricated misconduct charges, that case is(cid:13) distinguishable from Smith’s because the conduct in(cid:13) Millhouse implicated a constitutional right--the First(cid:13) Amendment right to access to the courts. Smith’s purported(cid:13) liberty deprivation, on the other hand, implicates no(cid:13) constitutional right and therefore can not overcome the(cid:13) hurdle erected by the holding in Sandin. See Sandin, 515(cid:13) U.S. at 486. Under Sandin, an administrative sentence of(cid:13) disciplinary confinement, by itself, is not sufficient to create(cid:13) a liberty interest, and Smith does not claim that another(cid:13) constitutional right (such as access to the courts) was(cid:13) violated. Accordingly, we hold that the district court(cid:13) correctly dismissed Smith’s due process claim.(cid:13) In dismissing the claims, the district court correctly(cid:13) relied upon the analysis of the Court of Appeals for the(cid:13) Second Circuit in Freeman v. Rideout, 808 F.2d 949" date_filed="1986-12-30" court="2d Cir." case_name="Gary Wayne Freeman v. Richard Rideout">808 F. 2d 949 (2d(cid:13) Cir. 1986). In Freeman, an inmate brought a due process(cid:13) claim against prison authorities under S 1983 alleging that(cid:13) the prison officials’ use of falsified evidence and bogus(cid:13) misconduct reports resulted in his being unconstitutionally(cid:13) confined in punitive segregation for 30 days. See Freeman,(cid:13) 808 F.2d 949" date_filed="1986-12-30" court="2d Cir." case_name="Gary Wayne Freeman v. Richard Rideout">808 F.2d at 951. The plaintiff was awarded damages(cid:13) following a trial, but the award was reversed on appeal. The(cid:13) court of appeals concluded that, with respect to the(cid:13) misconduct hearing, due process is satisfied where an(cid:13) inmate is afforded an opportunity to be heard and to defend(cid:13) against the allegedly falsified evidence and groundless(cid:13) misconduct reports. Thus, so long as certain procedural(cid:13) requirements are satisfied, mere allegations of falsified(cid:13) evidence or misconduct reports, without more, are not(cid:13) enough to state a due process claim. See id. at 953.(cid:13) Smith argues that "there is more" to his claim However,(cid:13) he must clear two hurdles to overcome the district court’s(cid:13) 18(cid:13) reliance on Freeman. First, it is now clear that the sanction(cid:13) Smith challenges (seven months disciplinary confinement)(cid:13) does not, on its own, violate a protected liberty interest as(cid:13) defined in Sandin. Therefore, he can not establish that the(cid:13) defendants’ conduct denied him substantive due process by(cid:13) infringing upon a liberty interest. Second, he was afforded(cid:13) a hearing and therefore had the opportunity to confront(cid:13) and challenge the allegedly perjured testimony offered in(cid:13) support of the misconduct reports. Under Freeman , that is(cid:13) all he was entitled to.(cid:13) Smith cites several cases in arguing that the district(cid:13) court erred in relying upon Freeman. However, the cases he(cid:13) cites are either distinguishable, or were decided before(cid:13) Sandin, and are therefore of little precedential value.10 We(cid:13) _________________________________________________________________(cid:13) 10. The cases Smith cites in support of his argument are distinguishable(cid:13) in that they allege the deprivation of a constitutional right or liberty(cid:13) interest apart from, or in conjunction with, the inmate’s segregation from(cid:13) the greater prison population. See, e.g., Seiverling, 229 F.3d 220" date_filed="2000-09-28" court="3rd Cir." case_name="Allah v. Seiverling">229 F.3d at 225(cid:13) (administrative segregation in retaliation for filing law suits violated(cid:13) inmate’s access to the courts); Millhouse, 652 F.2d 371" date_filed="1981-06-30" court="3rd Cir." case_name="Milhouse v. Carlson">652 F.2d at 374 (same); Grillo(cid:13) v. Coughlin, 31 F.3d 53" date_filed="1994-07-22" court="2d Cir." case_name="John Grillo v. Thomas Coughlin">31 F.3d 53 (2d Cir. 1994) (the hearing itself did not comport(cid:13) with due process because the fact finder was given falsified documents(cid:13) that differed from the copies the inmate received); Franco v. Kelly, 854(cid:13) F.2d 584 (2d Cir. 1988) (inmate alleged that misconduct reports were(cid:13) fabricated in retaliation for his cooperation with an investigation by the(cid:13) state’s Inspector General, thus implicating his right to petition the(cid:13) government for redress of grievances); Cale v. Johnson, 861 F.2d 943" date_filed="1988-11-17" court="6th Cir." case_name="Louis Cale v. J.R. Johnson, Warden, F.C.I., James Wahl, Food Service Administrator, F.C.I., Milan, and Melvin Persky, Inmate and Clerk to James Wahl">861 F.2d 943(cid:13) (6th Cir. 1988) (allegations that prison officials fabricated misconduct(cid:13) charge in retaliation for inmate’s complaint about food was actionable as(cid:13) a Bivens suit); Sprouse v. Babcock, 870 F.2d 450" date_filed="1989-03-20" court="8th Cir." case_name="Robert D. Sprouse v. David Babcock, Charles Harper and Ronald G. Welder">870 F.2d 450 (8th Cir. 1989) (false(cid:13) misconduct charges constituted retaliation for filing lawsuits and(cid:13) therefore stated a claim under S 1983 because it implicated access to the(cid:13) courts); Harbury v. Deutch, 233 F.3d 596" date_filed="2000-12-12" court="D.C. Cir." case_name="Harbury v. Deutch">233 F.3d 596 (D.C. Cir. 2000) (allegations of(cid:13) false statements designed to forestall a Bivens action stated a claim for(cid:13) denial of access to the courts).(cid:13) Rhodes v. Robinson, 612 F.2d 766" date_filed="1979-12-28" court="3rd Cir." case_name="Jerry Wayne Rhodes v. William Robinson">612 F.2d 766 (3d Cir. 1979) and Black v. Lane, 22(cid:13) F.3d 1395 (7th Cir. 1994) are the only two cases cited by Smith that(cid:13) appear to support Smith’s claims. However, both Rhodes and Black were(cid:13) decided before Sandin.(cid:13) Although Smith alleges that he was cited in the misconduct reports to(cid:13) cover up the defendants’ own improper conduct, his complaint does not(cid:13) 19(cid:13) suggest a retaliatory motive that would implicate a constitutional right(cid:13) such as access to the courts. Accordingly, accepting Smith’s allegations(cid:13) as true, he claims only that defendants’ conduct was improper and in(cid:13) bad faith, not that it denied him the due process that must form the(cid:13) basis of his S 1983 claims.(cid:13) 11. In affirming the dismissal of the due process claims we do not(cid:13) suggest that we agree with the district court’s conclusion that Smith is(cid:13) improperly attempting to collaterally attack his state court conviction for(cid:13) disorderly conduct. He pled nolo contendere to that charge, and that plea(cid:13) does not bar his due process claims here. See Thomas v. Roach, 165(cid:13) F.3d 137, 144-45 (2d Cir. 1999); see also FED. R. EVID. 410.(cid:13) therefore find that the district court did not err in(cid:13) dismissing Smith’s due process claims.(cid:13) IV. Conclusion(cid:13) Accordingly, we will affirm the district court’s dismissal of(cid:13) Smith’s due process claims.11 However, we hold that the(cid:13) district court erred in dismissing Smith’s claims under the(cid:13) Eighth Amendment. Consequently, we vacate the entry of(cid:13) summary judgment in favor of defendants Novitsky,(cid:13) Yurkiewicz, Androshick, McCole, Zubris, and Jones. We(cid:13) also hold that corrections officers have a duty to intervene(cid:13) when other officers use excessive force irrespective of the(cid:13) rank of the offending officers. Accordingly, we will also(cid:13) reverse the dismissal of Smith’s Eighth Amendment claim(cid:13) against Paulukonis.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 20(cid:13)