CLD-128 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 19-3094 ___________
ANTHONY C. ALLEN, Appellant
v.
J. A. ECKARD; A. EBERLING; K. M. SPARR; R. W. GOUGHNOUR; A. J. HIMES; C. MCCONNELL; NURSE C. SWANGER ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-17-cv-00996) District Judge: Honorable Sylvia H. Rambo ____________________________________
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, 2020 Before: JORDAN, KRAUSE and MATEY, Circuit Judges
(Opinion filed: March 11, 2020) _________
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. Appellant Anthony C. Allen, proceeding pro se and in forma pauperis, appeals
from the District Court’s order granting summary judgment to the defendants. Because
the appeal presents no substantial question, we will summarily affirm the judgment of the
District Court.
Allen filed a complaint under 42 U.S.C. § 1983 alleging that, after escorting Allen
to his cell from a prison library, two officers pulled him out of his cell and slammed him
on the ground without provocation. Once Allen was on the ground, other officers,
including a supervisor, responded to the scene and implemented the prison’s protocol for
an unplanned use of force. Although Allen alleged that he experienced medical problems
attributable to the event, including bruises, scrapes, and an upper respiratory infection, a
nurse observed Allen and determined that he did not need medical treatment. Allen was
charged with misconduct for the incident. Following a misconduct hearing, he was
sanctioned to 90 days’ disciplinary confinement.
Allen claimed that (1) the officers who restrained him used excessive force,
(2) two supervisors failed to protect him, (3) two medical providers were deliberately
indifferent to his medical needs, and (4) the misconduct hearing examiner violated his
due process rights and conspired against him. He also claimed that the supervisors failed
to train and supervise officers regarding the use of force against inmates and
demonstrated deliberate indifference to a known pattern of officer assaults in the
Restricted Housing Unit (“RHU”).
2 After filing their answer, the defendants moved for judgment on the pleadings.
The District Court granted the motion in part and dismissed Allen’s failure to protect
claim and his claims against the misconduct hearing examiner. At the close of discovery,
the defendants moved for summary judgment. The District Court granted the motion,
determining that (1) video evidence of the unplanned force incident invalidated Allen’s
factual account regarding excessive force, (2) Allen did not exhaust his failure to train or
supervise claim as required under the Prison Litigation Reform Act (“PLRA”), and
(3) Allen’s deliberate indifference to medical needs claim was moot because he
voluntarily dismissed one of the defendants against whom the claim was made and failed
to effectuate service on the other. Allen timely appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de
novo the District Court’s grant of a motion for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c). DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir.
2008). “Judgment will only be granted [on the pleadings] where the moving party clearly
establishes there are no material issues of fact, and that he or she is entitled to judgment
as a matter of law.” Id. Likewise, we review de novo the District Court’s grant of
summary judgment. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A genuine dispute of material fact exists if the evidence is sufficient for a
reasonable factfinder to return a verdict for the non-moving party. Anderson v. Liberty 3 Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a motion for summary judgment,
“all justifiable inferences are to be drawn in . . . favor” of the non-moving party. Id. at
255. However, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Additionally, we may affirm on
any ground supported by the record. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d
454, 469 (3d Cir. 2015).
We agree with the District Court’s conclusion that several of Allen’s claims failed
on the pleadings as a matter of law. Allen’s failure to protect claim failed because he did
not allege that the supervisor-defendants were in a position to intervene. See Smith v.
Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (explaining that a corrections officer is
liable for failure to protect under § 1983 only if he had a “realistic and reasonable
opportunity to intervene”). Allen asserted that one supervisor was present at the scene
but arrived after he was restrained on the ground. He did not allege that the other
supervisor-defendant was present when the incident occurred. Allen’s due process claim
failed because 90 days’ disciplinary custody is not an “atypical and significant” hardship
that implicates due process concerns. See Sandin v. Conner, 515 U.S. 472, 485–86
(1995) (explaining that “[d]iscipline by prison officials in response to a wide range of
misconduct” is expected as part of an inmate’s sentence); see also Mensinger, 293 F.3d at
645, 654 (holding that seven months of disciplinary confinement did not implicate a 4 prisoner’s liberty interest). To the extent that Allen claimed that the misconduct hearing
officer conspired against him, his bare conclusory allegation was insufficient to sustain
such a claim. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,
178–79 (3d Cir. 2010) (holding that a § 1983 conspiracy claimant must plead specific
facts addressing the time the agreement was made, the period of the conspiracy, the exact
parties to the agreement, and the object of the conspiracy).
We also agree with the District Court’s entry of summary judgment for the
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CLD-128 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 19-3094 ___________
ANTHONY C. ALLEN, Appellant
v.
J. A. ECKARD; A. EBERLING; K. M. SPARR; R. W. GOUGHNOUR; A. J. HIMES; C. MCCONNELL; NURSE C. SWANGER ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-17-cv-00996) District Judge: Honorable Sylvia H. Rambo ____________________________________
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, 2020 Before: JORDAN, KRAUSE and MATEY, Circuit Judges
(Opinion filed: March 11, 2020) _________
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. Appellant Anthony C. Allen, proceeding pro se and in forma pauperis, appeals
from the District Court’s order granting summary judgment to the defendants. Because
the appeal presents no substantial question, we will summarily affirm the judgment of the
District Court.
Allen filed a complaint under 42 U.S.C. § 1983 alleging that, after escorting Allen
to his cell from a prison library, two officers pulled him out of his cell and slammed him
on the ground without provocation. Once Allen was on the ground, other officers,
including a supervisor, responded to the scene and implemented the prison’s protocol for
an unplanned use of force. Although Allen alleged that he experienced medical problems
attributable to the event, including bruises, scrapes, and an upper respiratory infection, a
nurse observed Allen and determined that he did not need medical treatment. Allen was
charged with misconduct for the incident. Following a misconduct hearing, he was
sanctioned to 90 days’ disciplinary confinement.
Allen claimed that (1) the officers who restrained him used excessive force,
(2) two supervisors failed to protect him, (3) two medical providers were deliberately
indifferent to his medical needs, and (4) the misconduct hearing examiner violated his
due process rights and conspired against him. He also claimed that the supervisors failed
to train and supervise officers regarding the use of force against inmates and
demonstrated deliberate indifference to a known pattern of officer assaults in the
Restricted Housing Unit (“RHU”).
2 After filing their answer, the defendants moved for judgment on the pleadings.
The District Court granted the motion in part and dismissed Allen’s failure to protect
claim and his claims against the misconduct hearing examiner. At the close of discovery,
the defendants moved for summary judgment. The District Court granted the motion,
determining that (1) video evidence of the unplanned force incident invalidated Allen’s
factual account regarding excessive force, (2) Allen did not exhaust his failure to train or
supervise claim as required under the Prison Litigation Reform Act (“PLRA”), and
(3) Allen’s deliberate indifference to medical needs claim was moot because he
voluntarily dismissed one of the defendants against whom the claim was made and failed
to effectuate service on the other. Allen timely appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de
novo the District Court’s grant of a motion for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c). DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir.
2008). “Judgment will only be granted [on the pleadings] where the moving party clearly
establishes there are no material issues of fact, and that he or she is entitled to judgment
as a matter of law.” Id. Likewise, we review de novo the District Court’s grant of
summary judgment. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A genuine dispute of material fact exists if the evidence is sufficient for a
reasonable factfinder to return a verdict for the non-moving party. Anderson v. Liberty 3 Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a motion for summary judgment,
“all justifiable inferences are to be drawn in . . . favor” of the non-moving party. Id. at
255. However, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Additionally, we may affirm on
any ground supported by the record. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d
454, 469 (3d Cir. 2015).
We agree with the District Court’s conclusion that several of Allen’s claims failed
on the pleadings as a matter of law. Allen’s failure to protect claim failed because he did
not allege that the supervisor-defendants were in a position to intervene. See Smith v.
Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (explaining that a corrections officer is
liable for failure to protect under § 1983 only if he had a “realistic and reasonable
opportunity to intervene”). Allen asserted that one supervisor was present at the scene
but arrived after he was restrained on the ground. He did not allege that the other
supervisor-defendant was present when the incident occurred. Allen’s due process claim
failed because 90 days’ disciplinary custody is not an “atypical and significant” hardship
that implicates due process concerns. See Sandin v. Conner, 515 U.S. 472, 485–86
(1995) (explaining that “[d]iscipline by prison officials in response to a wide range of
misconduct” is expected as part of an inmate’s sentence); see also Mensinger, 293 F.3d at
645, 654 (holding that seven months of disciplinary confinement did not implicate a 4 prisoner’s liberty interest). To the extent that Allen claimed that the misconduct hearing
officer conspired against him, his bare conclusory allegation was insufficient to sustain
such a claim. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,
178–79 (3d Cir. 2010) (holding that a § 1983 conspiracy claimant must plead specific
facts addressing the time the agreement was made, the period of the conspiracy, the exact
parties to the agreement, and the object of the conspiracy).
We also agree with the District Court’s entry of summary judgment for the
defendants as to Allen’s excessive force claim. Although Allen’s version of events
contradicted the defendants’ account, no reasonable factfinder could conclude that the
officer-defendants used excessive force against Allen because videotape evidence of the
incident “blatantly contradicts” Allen’s version of events. See Scott, 550 U.S. at 380
(holding that videotape evidence “utterly discredited” the non-moving party’s version of
events and warranted summary judgment for the movant). Allen’s affidavit stated that,
after he was escorted to his cell, for no reason and without provocation, one of the
officers pulled Allen out of the cell by the tether attached between Allen’s hand
restraints. After the officer pulled him out of the cell, he slammed Allen to the ground
and restrained him with the help of another officer. By contrast, the officers’ incident
reports stated that, after being escorted to his cell, Allen turned and tried to pull his tether
into the cell. When the officer holding the tether ordered Allen to turn around, Allen
made an aggressive lunging gesture toward him. After a struggle for control, the officer
pulled Allen from the cell and restrained him on the ground. 5 Upon review of the footage, we agree with the District Court that it contradicts
Allen’s version of events. The footage shows Allen being escorted by the two officers to
his cell. Once Allen is inside the cell, the officer holding Allen’s tether is pulled into the
cell. The other officer then assists in pulling Allen out of the cell and restraining him on
the ground. While the footage does not depict what occurred inside Allen’s cell, it shows
that Allen was removed from the cell and restrained only after the officer was pulled into
the cell. Without an explanation from Allen as to what happened to pull the officer
inside, no reasonable factfinder could conclude that the officers’ use of force was
unprovoked. And although the video is consistent with Allen’s assertions that the
officers brought him to the ground with significant force, and that one officer got on his
back, neither fact could compel a reasonable factfinder to conclude that the officers acted
“maliciously and sadistically for the purpose of causing harm.” Whitley v. Albers, 475
U.S. 312, 319 (1986); see also Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000)
(noting that even a prison officer’s “over-reaction” to an inmate-caused disturbance
would fall short of supporting a finding of excessive force where the totality of the
circumstances indicated that the force was applied in a good faith effort to maintain
order).
We disagree with the District Court that Allen’s failure to train or supervise claim
is unexhausted, but because we conclude that Allen’s excessive force claim is meritless,
it follows that his failure to train claim is meritless, as well. Allen alleged that the
supervisor-defendants failed to train or supervise correctional officers regarding the 6 proper use of force in response to RHU inmate disturbances and exhibited deliberate
indifference to a known pattern of officer assaults. There are several ways to establish
supervisory liability under § 1983. See Barkes v. First Corr. Med., Inc., 766 F.3d 307,
316 (3d Cir. 2014), rev’d on other grounds, Taylor v. Barkes, 135 S. Ct. 2042 (2015) (per
curiam) (explaining that “failure to” claims are generally considered to be a subcategory
of “policy or practice” liability). However, all of them require a showing that there was
an actual constitutional violation at the hands of subordinates. Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010); see also Sample v. Diecks, 885 F.2d 1099, 1118
(3d Cir. 1989) (describing the four-part test for supervisory liability). Because Allen has
not made such a showing, his failure to train or supervise claim fails. To the extent that
Allen sought to base his claim on allegations that other inmates were assaulted, he lacks
standing. See Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981) (holding that prisoners
do not have standing to sue on behalf of their fellow inmates).
Finally, the District Court was correct to dismiss Allen’s deliberate indifference to
medical treatment claim because the defendants against whom the claim was made had
been dismissed, either voluntarily by Allen or for his failure to effectuate service. See
Fed. R. Civ. P. 4(m) (stating that a defendant must be served within 90 days of the filing
of the complaint).
Because Allen’s appeal presents no substantial question, we will affirm the
judgment of the District Court.