2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 227 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 1934

___________ TERRY SIMONTON, JR. ,

Appellant v. FRANKLIN TENNIS; BRIAN THOMPSON; ROBERT MARSH; D. WOODRING; JEFFREY A. RACKOVAN; W . WILLIAMS; SGT. BRIAN; LT. GRAHAM ; INMATE SEAMAN

____________________________________ On Appeal from the United States District Court for th e Middle District of Pennsylvania (D.C. Civil No. 09

- cv - 0 233 ) District Judge: Honorable Christopher C. Conne r

____________________________________ 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 June 30, 2011 Before: SLOVITER, JORDAN and GREENAWAY, JR. , Circuit Judg es

(Opinion filed : July 13, 2011 )

_________ OPINION

_________ PER CURIAM Terry Simonton, Jr., appeals from order s of the District Court (1) dismissing his claim against defendant Inma te Seaman , pursuant to 28 U.S.C. § 1915(e)(2)(B);2

( 2 ) granting the motion for partial judgment on the pleadings of defendants Jeffrey Rackovan, W. Williams, Cindy G. Watson , and D. Woodring; and ( 3 ) granting the motion for summary judgment of defendants Fran k lin Tennis, Brian Thompson, Robert Marsh, Sergeant Brian , an d Lieutenant Graham

. Because the appeal presents no substantial question, we will summarily affirm.
I.
In February 2009, Simonton filed a civil rights complaint pursuant to 42 U.S.C. § 1983 , alleging injuries sustained while he was incarcerated at SCI

- Rockview in Bellefonte, Pennsylvania. 1 Simonton alleged that on April 12 , 200 8 , Sergeant Brian and Lieutenant Graham

— both corrections officers at SCI

- Roc k view

— antagonized and incited I nmate Se aman , who was apparently up set over being denied a visitor, which prompted Inmate Seaman to strike Simonton in the face. Simonton received medical attention for his injuries, including ice packs and Tylenol. After complaining of headaches and displaying black circles under his eyes days later , a n X

- ray was taken confirm ing that the blow from Inmate Seam an had broken Simonton‟s nose. Simonton

was prescribed pain medications. According to Simonton, he has experienced hearing loss, headaches, and vision pr oblems since the incident. Simonton specifically allege d that Sergeant Brian and Lieutenant Graham , as well as Tennis, Thompson , and Marsh, violated his Eighth Amendment rights in failing to

1 Simonton is currently housed at the Green Rock Correctional Ce nter in Chatham, Virginia.3

protect his safety

. He also allege d that Tennis, Thompson, and Marsh engaged in repeated cover

- ups of prisoner assaults within SCI

- Rockview. Simonton further allege d
that Tennis, Thompson , and Marsh, in addition to Rackovan, Williams , and Watson

— the three grievance officers

— failed to properly investigate his grievanc e claims. Finally, Simonton alleged that Woodring denied him his right to review his medical record s . All defendants were sued in both their official and personal capacities.
In an April 17, 2009 order , the District Court dismissed Inmate Seaman pursuant to 28 U.S.C. § 1915(e)(2) (B) (i ). Rackovan, Williams, Watson , and Woodring subsequently moved for partial judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. On January 22, 2010, the District Court granted that motion

. Th e remaining defendants

— Tennis, Thompson, Marsh, Sergeant Brian , and Lieutenant Graham

— then moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. In a March 16, 2011 order, the District Court granted these defendants‟ motion for summary judgment. Simonton appealed.
II. We have appellate jurisdiction under 28 U.S.C. § 1291

. We may summarily affirm a judgment of the District Court if the appeal does not raise a substantial question. 3d Cir. LAR 27.4; I.O.P. 10.6. W e may affirm on any basis supported by the record. Hedges v. Musco , 204 F.3d 109, 116 (3d Cir. 2000)

. We are of course mindful that a pro se litigant‟s complaint is to be construed liberally. See Haines v. Kerner , 404 U.S. 519, 520

- 21 (1972).4 III.

In order to esta blish a § 1983 claim, a plaintiff must demonstrate that: (1) the conduct complained of was committed by persons acting under color of state law; and (2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United States. Nicini v. Morra , 212 F.3d 798, 806 (3d Cir. 2000) (en banc).
A. Dismissal of the claim against Inmate Seaman The District Court dismissed as frivolous Simonton‟s claims as to Inmate Seaman

. See 28 U.S.C. § 1915(e)(2)(B)(i). Our review of that dismissal is plenary. Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 1999)

. We affirm the District‟s order, as it properly concluded that Simonton cannot sue
Inmate Seaman under § 1983 because he is not a state actor. A review of Simonton‟s

c ompl aint reveals no allegation s giving rise to a plausible inference that Inmate Seaman acted under color of state law or conspired with state actors to deny Simonton his constitutional rights. See Dennis v. Sparks , 449 U.S. 24, 27

- 28 (1980) (“ Private persons , jointly engaged with state officials in the challenged action, are acting „ under color ‟ of law for purposes of § 1983 actions .” ). Accordingly, Simonton cannot recover against
Inmate Seaman under § 1983. Great W. Mining & Mineral Co. v. Fox Rothschild L LP , 615 F.3d 159, 175

- 76 (3d Cir. 2010) (“ T o prevail on a § 1983 claim, a plaintiff must allege that the defendant acted under color of state law, in other wor ds, that there was state action ”)

.5

B. Grant of partial summary judgment on the pleadings as to defendants Rackovan, Williams, Watson , and Woodring We exercise plenary review over a district court‟s order granting a Rule 12(c) motion

. Sikirica v. Nationwide Ins. Co. , 416 F.3d 214, 219 (3d Cir. 2005) . In doing so , “we accept as true all of the alleg ations in the complaint and draw all reasonable inferences therefrom in favor of [the nonmovant].” Consol. Rail Corp. v. Portlight, Inc. , 188 F.3d 93, 94 (3d Cir. 1999). We will affirm only if “the movant clearly establishes
there are no material issues of fact, and he is entitled to judgment as a matter of law.”
Sikirica , 416 F.3d at 220. Simonton claims that these defendants violated his constitutional rights in failing to investigate his grievances. At the outset, it is important to note that access to prison grievance proce dures is not a constitutionally

- mandated right. See Jones v. N.C. Prisoners‟ Labor Union , 433 U.S. 119, 138 (1977) (Burger, C.J., concurring ) (“I do not suggest that the [prison grievance] procedure s are constitutionally mandated ” ); Massey v. Helman , 259 F.3d 641, 647 (7 th Cir. 2001) (collecting cases)

. Simonton has not presented any evidence tending to show that Rackovan deprived him of any right. A bare allegation of “rubber stamping” does not suffice to establish a cognizable constitutional violation. Accordingly, the District Court correctly concluded that judgment on the pleadings was warranted on Simonton‟s failure to investigate grievances claim, as it
concerned Rackovan. Further, a prison official‟s secondary review of a n inmate‟s grievance or appeal is6

not sufficient to demonstrate the personal involvement required to establish the deprivation of a constitutional right

. See Rode v. Dellarciprete , 845 F.2d 1195, 1207

- 08 (3d Cir. 1988) (holding that a plaintiff must estab lish that the defendants “have personal
involvemen t in the alleged wrongs [which] . . . can be shown through allegations of personal direction or of actual knowledge and acquiescence,” and noting that the governor‟s awareness of plaintiff‟s grievance filed with his office of administration is insufficient to establish personal involvement in , and actual knowledge of , the conduct complained of by plaintiff )

. Additionally , “[a]llegations of participation or actual knowledge and acquiescence . . . must be mad e with appropriate particularity .” Id. at 1207 (emphasis added). S imonton has not allege d Watson‟s knowledge and acquiescence with the required particularity ; her mere review of Simonton‟s grievances is
not sufficient

. Id. Simonton has failed to show t hat Watson had the necessary personal involvement in the underlying unconstitutional conduct

. T he District Court correctly concluded that judgment on the pleadings was warranted on Simonton‟s failure to investigate grievances claim , as it concerned Watson , Wilson, and Woodring

. 2
C. Grant of summary judgment in favor of Tennis, Thompson, Marsh, Sergeant Brian , and Lieutenant Graham This Court exercise s plenary review over the District Court‟s entry of summary judgment, Noel v. Boeing Co. , 622 F.3d 266 , 270 n.4 (3d Cir. 2010 ), viewing the

2 Prior to disposition, Simonton conceded that he had no valid claims against Woodring and Williams. (Dist. Ct. Mem. of January 22, 2010, pg. 2.)7

underlying facts and all reasonable inferences therefrom in the light most favora ble to the

non - moving party. See Ray v. Twp. of Warren , 626 F.3d 170, 173 (3d Cir. 20 10 ). An order granting summary judgment is appropriat e when the evidence reveals 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 issue of material fact exists if there is sufficient evidence favoring the nonm oving party for a jury to return a verdict for that party.” Spence v. ESAB Group, Inc. , 623 F.3d 212, 216 (3d Cir. 2010) ( citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986))

. 1 . Conspiracy Claim The District Court properly granted summary j udgment to Tennis, Thompson, and Marsh on Simonton‟s conspiracy claim. In order to sufficiently allege a claim of civil rights conspiracy, the complaint must specifically set forth : (1) the conduct that violated the plaintiff‟s rights ; (2) the time and t he place of the conduct ; and (3) the identity of the officials responsible for the conduct. See Oatess v. Sobolevitch , 914 F.2d 428, 431 n.8 (3d Cir. 1990) (citing Colburn v. Upper Darby Twp

. , 838 F.2d 663, 666 (3d Cir. 1998)). Furthermore, the allegatio ns of conspiracy must be grounded firmly in facts; they cannot be conclusory nor can they hinge on bare suspicions and foundationless speculation. See Young v. Kann , 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991) ( affirming dismissal of conspiracy claims based u pon mere suspicion and speculation)

. We agree with the District Court that the re is no evidence in the record to demonstrate a genuine issue of material fact to sustain a claim of conspiracy . Besides the8

generically broad allegations of a “cover up , ” Simo nton fails to allege specific facts detailing the conduct involved and the timeframe

. N or does he present facts that remotely suggest concer ted activity. The District Court thus correctly concluded that summary judgment was warranted on Simonton‟s conspi racy claim.
2 . Failure to Investigate Grievances Claim The District Court properly granted summary judgment to Tennis, Thompson , and Marsh on Simonton‟s claim of failure to investigate grievances. As noted above, a ccess
to prison grievance procedures is not a constitutionally

- mandated right. Jones , 433 U.S.
at 138 ( Burger, C.J., concurring ); Massey , 259 F.3d at 647. Simonton‟ s claim is further undermined by his failure to allege knowledge and acquiescence with the required particularity. See Rode , 845 F.2d at 120 8. Simonton‟s general assertion that Tennis, Thompson , and Marsh occupy sup ervisory roles is not sufficient to demonstrate that their secondary review of an inmate‟s grievance or appeal establish es the deprivation of a constitutional right

. S imonton has thus failed to show that these defendants had the necessary personal involvement to sustain a cognizable § 1983 claim

. Accordingly, t he District Court correctly concluded that summary judgment was warranted on Simonton‟s failure to investigate grievances claim.
3 . Failure to Protect Claim The District Court properly granted summary judgment to Tennis, Thompson , and Marsh on Simonton‟s Eight h Amendment failure to protect claim. This claim rests upon the nature of their supervisory roles in SCI

- Rockview. To establish an action for9

supervisory liability, a plaintiff must demonstrate that the supervising officials: (1) personally participated in violating a person‟s rights; (2) directed others to violate a person‟s rights; or (3) had knowledge o f and acquiesced in a subordinate‟s violations of a person‟s rights

. Robinson v. City of Pittsburgh , 120 F.3d 1286, 1293 (3d Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co., v. White , 548 U.S. 53,
76

- 78 (2006)

. We agree with th e District Court that Simonton has failed to put forth any facts suggesting that Tennis, Thompson, or Marsh participated in unconstitutional activity, directed others to do so, or had knowledge of and acquiesced in a subordinate‟s
unconstitutional conduct. Likewise, the District Court properly granted summary judgment to Sergeant Brian and Lieutenant Graham on Simonton‟s Eighth Amendment failure to protect claim. Among their many duties, pr isoner officials are charged with taking “reasonable measures to gu arantee the safety of the inmates , ” Farmer v. Brennan , 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer , 468 U.S. 517, 526

- 27 (1984)) , which includes protecting “ prisoners from violence at the hands of other prisoners.” Hamilton v. Leavy , 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer , 511 U.S. at 833 )

. Not all injuries inflicted upon one prisoner by another equate to an Eight h Amendment violation on the part of prison officials. Farmer , 511 U.S. at 834. To establish an Eighth Amendment failure to pr otect claim, a plaintiff must show that: (1) he is “incarcerated under conditions posing a substantial risk of serious harm;” and (2) prison officials operated with “deliberate indifference to [ his ] health and safety.” Id

. ; see10

also Beers

- Capit o l v. Wh etzel , 256 F.3d 120, 125 (3d Cir. 2001)

. Deliberate indifference is proven by showing that an official “ knows of and disregards an excessive risk to inmate health or safety .” Farmer , 511 U.S. at 837. Not only must a prison official be “aware of facts fr om which the inference could be drawn that a substantial risk of serious harm exists,” but the official “must also draw the inference.” Id. We agree with the District Court that Simonton has failed to demonstrate genuine issues of material fact to establi sh an Eighth Amendment violation

. First, there is no t the slightest indication from Simonton‟s complaint or statement of facts that he was incarcerated under conditions posing a substantial risk of serious harm. T his prong generally cannot be met by alle gations of a single incident. See Riley v. Jeffes , 777 F.2d 143, 147 (3d Cir. 1985)

. There is no evide nce that prior to this incident Simonton was subject to threats, abuses, or danger at SCI

- Rockview. Simonton even discloses that
Inmate Seaman was prev iously irate when he began talking with Lieutenant Graham , and all of the evidence points to the conclusion t hat the attack by Inmate Seaman occurred without forewarning ; in particular, it was unanticipated by Simonton as well as Sergeant Brian and Lieuten ant Graham

. As to the second prong, there is absolutely no evidence offered by Simonton indicating that Sergeant Brian and Lieutenant Graham acted with the requisite culpable state of mind: deliberate indifference to Simonton‟s health and safety. Sim onton presents no evidence ten ding to show that Sergeant Brian and Lieutenant Graham knew and consciously disregarded the risk that Inmate Seaman would channel his anger by11

striking Simonton in the face

. The District Court thus correctly concluded that su mmary judgment was warranted on Simonton‟s Eighth Amendment failure to protect claim.
IV. For the reasons given in this opinion, we will summarily affirm the judgment of the District Court.