BLD

- 272 NOT PRECEDENTIAL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

___________ No. 13

- 4664

___________ STEPHEN BERNARD BLACKSTONE , Appellant

v. A.L. THOMPSON , Sued in his individual and official capacity

__________________________ __________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 12

- cv - 00899 ) District Judge: Honorable Cathy Bissoon

____________________________________ 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 5, 2014 Before: AMBRO, CHAGARES and VANASKIE , Circuit Judges

(Opinion filed : June 10, 2014 )

_________ OPINION

_________ PER CURIAM Stephe n Bernard Blackstone, an inmat e proceeding pro se , filed a complaint in the District Court pursuant to 42 U.S.C. § 1983. He alleged that Corrections Officer Alfred L. Th ompson violated the Eighth Amendment by failing to protect him from an attack by2

his cellmate

. After discovery, Tho mpson filed a motion for summary judgment, which the District Court granted on the recommendation of the Magistrate Judge . Blackstone appealed

. 1 Because the appeal presents no substantial question, we will summarily affirm.
I. Blackstone ’s complaint al leged that Corrections Officer A.L. Thompson failed to protect him from his cellmate , Gary W eedon . According to the allegations, o n November 9, 2010 , at approximately 3:30 p.m., B l a ckstone told Thompson that he was having problems with Weedon, that he did not feel comfortable around Weedon, and that he wanted to move. In response, Thomp son informed Blackstone that he did not have the authority to move inmates . He provided Blackstone with a DC

- 135A Request to Staff form and instructed him to fill out the form and give it to the unit manager the following day

. Blackstone filled out the form and immediately placed it in the unit manager’s
mailbox

. He wrote , among other things : “I believe my cellie may try to a ssault me in the cell tonight.” [Doc. 1, Compl aint, Exh. A]. It is undisputed that Thompson never saw the written request. That evening, Blackstone sustained injuries from a fight with his cellmate. According to Blackstone, he was lounging in the dayroom when Weedon attac ked him,

1 Blackstone subse quently filed a post

- judgment motion seeking relief from the final judg ment in order to introduce new evidence. The District Cour t denied that motion. That denial is not before us, as Blackstone did not file a timely new or amended Notice of Appeal. See Fed. R. App. P. 4(a)(4)(B)(ii).3

unprovoked. The attack resulted in facial contusions, blur red vision, lingering headaches and a fractured orbital bone. Thompson conceded that there was a fight but maintained that the altercation was mutual, as opposed to an unprovoked assault

. Thompson described the fight accordingly in an incident report . P rison officials conducted a disciplinary hearing . After the hearing officer reviewed video evidence, Blackstone and Weedon were both found guilty of fighting. As punishment, Blackstone was assigned to restricted housing for t hirty days

. Blackstone alleged that prison policy DC

- ADM 802 authorizes an inmate to request self

- lockup for his own protection, but that he was not given that option by Thompson. He further claimed that Thompson knew or should have know n that Weedon was likely to assault Blackstone because, in addition to Blackstone’ s express statement to Thompson , W eedon carried an i nmate status of “H

- Code ,” signifying that he was a high risk inmate . Blackstone also alleged that Thompson knew that othe r inmates had complained about W eedon in the past

. II. We have appellate jurisdic tion under 28 U.S.C. § 1291. We may summarily affirm if Blackstone ’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. When revie wing orders grant ing summary judgment we apply
the same test as the District C ou rt , granting summary judgment where there remains no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law

. See Noel v. Boeing Co. , 622 F.3d 266, 270 n.4 (3d Cir. 2010) . We view4

the underlying facts and all reasonable inferences therefrom in the light most favorable to the non - moving party. See Ray v. Twp. of Warren , 626 F.3d 170, 173 (3d Cir. 2010)

. III. To survive Thompson’s motion for summary judgment, Blackstone needed to
po int to evidence in the record that Thompson both knew of and was deliberately indifferent to an excessive risk to his safety. See Beers

- Capitol v. Whetzel , 256 F.3d 120, 131 (3d Cir. 2001) (citing Farmer v. Brennan , 511 U.S. 825, 837 (1994) ). We agree with the District Court that Blackstone did not adduce evidence to show that Thompson operated from the requisite mindset. When making a determination as to deliberate indifference, t he court mu st “focus [on] what a defendant’ s mental attitude actually was (or is), rather than what it should have been (or should be).” Hamilton v. Leavy , 1 1 7 F.3d 742, 747 (3d Cir.1997) ( internal citation and quotation marks omitted )

. Deliberate indifference is “a state o f mind more blameworthy than negligence.” Farmer , 511 U.S. at 835

. E ven i f Thompson “knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent , ” liability will not attach. Id. a t 844

. Here, there is no indication in the record that T h ompson made the inference that an excessive risk was present. Prior to the fight, Blackstone had just one communication with Thompson , in which Blackstone stated that he was not “ getting along ” and did not “feel comfortable” with his cellmate. [ See Doc . 66, p. 1

- 2]. Absent any other evidence of Thompson’s culpable state of mind, that singular, generalized statement is not sufficient to permit a5

reasonable finder of fact to infer that Thompson both knew of and intentionally disregarded an excessive risk to Blackston e ’s safety

. Blackstone points to Weed on’s “H

- class” status as circumstantial evidence of Thompson’s deliberate indifference

. T he risk that an inmate with some history of violence migh t attack another inmate for an unk nown reason , however, is too speculative
to give rise to an Eighth Amendment claim. See Bistrian v. Levi , 696 F.3d 352, 371 (3d Cir. 2012)

. I t is true that the requisite mindset may be pro ved by circumstantial evidence, such as where a plaintiff demonstrates that a substantial risk was “ longstanding, pervasive, well

- documented, or expressly noted by prison officials in the past.” Farmer , 511 U.S. at 842 (citations omitted); s ee also Leavy , 117 F.3d at 747

. Here, however , there were no longstanding, pervasive, well

- documented, or previously noted tensions between Weedon and Blac kstone

. Nor is there any indication i n the record that Blackstone told Thompson of any specific incident or cause of tension between the cellmate s from which a greater inference of risk could be drawn. See Bistrian , 696 F.3d
at 368

- 71 ( permitting Eighth Amendment claims to proceed where an inmate repeatedly advised officials of threats he received a s a result of helping an investigation that targe ted those with whom he was placed)

. To the contrary, Blackstone ’s filings repeatedly
describe the type of “out

- of

- the

- blue and unadorned ‘I’m

- in

- trouble’ entreaty , ” i d. at 69

- 70 , that is commonly faced by officials, who are charged with the “arduous” task of managing an inmate population while protect ing those in custody

. Young v. Quinlan , 960 F. 2d 351, 363 n. 23 (3d Cir. 1992) , supers eded by statute , Prison Litigation Reform6

Act of 1996, Pub. L. No. 104

- 134, 110 Stat. 1321 , as recognized in Nyhuis v. Ren o , 204 F.3d 65 , 71 n.7 (3d Cir. 2000)

. We acknowledge that the factual assertions of the parties di ffer as to who instigated the altercation between W eedon and Blackstone. T hat dispute, however, is not material to Blackstone’s claims. See F.R.Civ.P. 5 6(a). Even assuming that Blackstone was attacked by Weedon, Blackstone has not pointed to evidence of deliberate indifference. As we have explained, the combination of Weedon’s “H

- Code” status and one report of unspecified tensions between the cellmates does not support an inference of deliberate indifference

. The District Court thus correctly concluded that summary judgment was warranted. 2
I V. For the foregoing reasons, we will summarily affirm the judgment of the District
Court.

2 We also perceive no error in the District Court’s order denying Blackstone’s request for counsel. See Tabron v. Grace , 6 F.3d 147, 158 (3d Cir. 1993). We observe that Blackstone diligently prosecuted his case; his tho rough filings reflect that he was able to effectively conduct discovery and present his arguments. Id. ; Smith

- Bey v. Petsock , 741 F.2d 22, 26 (3d Cir. 1984). The District Court also did not err in denying Blackstone’s motion for a temporary restraining o rder. See Fed. R. Civ. P. 65.