Alvin White, Jr. v. John Wetzel

Opinion

CLD-090 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 24-1770 ___________

ALVIN GEORGE WHITE, JR., Appellant

v.

JOHN E. WETZEL; MELINDA ADAMS; MARCIA COMBINE ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2:20-cv-01546) Magistrate Judge: Honorable Kezia O.L. Taylor (sitting by consent) ____________________________________

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 February 27, 2025

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed: March 21, 2025) _________

OPINION* _________

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. Alvin George White, Jr. appeals the Magistrate Judge’s order granting Appellees’

motion for summary judgment. For the reasons that follow, we will summarily affirm the

District Court’s judgment.

The procedural history of this case as well as White’s allegations are well-known

to the parties, are set forth in the Magistrate Judge’s memorandum opinion, and need not

be described at length here. Briefly, White, a Pennsylvania prisoner, filed a pro se

complaint alleging that Appellees failed to protect him and violated his Eighth

Amendment rights by not implementing the Department of Corrections’ policies during

the COVID pandemic. The Appellees filed a motion to dismiss which the Magistrate

Judge granted.1 White appealed, and we vacated and remanded the matter for further

proceedings. White v. Wetzel, No. 21-2654, 2022 WL 3273807, at *3 (3d Cir. Aug. 11,

2022) (per curiam). Counsel then entered an appearance for White. Appellees filed a

motion for summary judgment, and White filed a counseled response. A Magistrate

Judge granted summary judgment, and White filed a pro se notice of appeal.2

We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s order

granting summary judgment de novo. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d

Cir. 2011). A party moving for summary judgment must show that “there is no genuine

1 The parties consented to proceed before a Magistrate Judge. 2 At White’s request, counsel withdrew, and White filed a motion for reconsideration. The Magistrate Judge denied the motion, but White did not appeal that order. Thus, the order denying the motion for reconsideration is not before us. See Carrascosa v. McGuire, 520 F.3d 249, 253-54 (3d Cir. 2008). 2 dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). To determine whether the movant has satisfied this burden, “we

view the facts and draw all reasonable inferences in the light most favorable to the

nonmovant.” Pearson v. Prison Health Serv., 850 F.3d 526, 533 (3d Cir. 2017). “Material

facts are those that could affect the outcome of the proceeding, and a dispute about a

material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a

verdict for the non-moving party.” Id. at 534 (internal quotations omitted).

To state an Eighth Amendment claim, a plaintiff must allege that he was

incarcerated under conditions imposing a substantial risk of serious harm, and that the

defendant was deliberately indifferent to that risk. Farmer v. Brennan, 511 U.S. 825, 834

(1994). Officials are deliberately indifferent when they are actually aware of the

substantial risk of serious harm and disregard it. See id. at 837. Prison officials who

knew of a substantial risk of harm are not liable if they responded reasonably to the risk.

Id. at 844. Here, the Appellees clearly did not disregard the risk of serious harm from

COVID-19. As thoroughly described by the Magistrate Judge, the Appellees took

extensive measures designed to reduce the threat of infection. We agree with the

Magistrate Judge that the record shows that Appellees responded reasonably to the risk

presented by the COVID-19 virus and were entitled to summary judgment. See Hope v.

Warden York Cty. Prison, 972 F.3d 310, 330 (3d Cir. 2020) (stating that the failure to

eliminate all risk of contracting COVID-19 in immigration detention did not establish

deliberate indifference); Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (holding

3 that the Bureau of Prisons was not deliberately indifferent to the risk of harm in light of

preventative measures taken in response to COVID-19).

Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the Magistrate Judge, we will summarily affirm the Magistrate Judge’s order. See Third

Circuit I.O.P. 10.6. Appellant’s motions to stay the appeal pending resolution of his

motion for reconsideration are denied as moot. To the extent that White’s “petition for

certificate of appealability” requests any relief, it is denied.