2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-2012

Michael Bristol v. E. T. Settle

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2051

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Recommended Citation

"Michael Bristol v. E. T. Settle" (2012). 2012 Decisions. Paper 1596.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1596
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 11-2051

_____________

 

MICHAEL BRISTOL,

Appellant

v.

CORRECTIONAL OFFICER E. T. SETTLE;

SECRETARY PA DEPT OF CORRECTIONS 

_____________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-09-cv-04155)

District Judge: Honorable Robert F. Kelly

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

January 10, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges

(Opinion Filed January 12, 2012) 

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

On April 2, 2009, five or six inmates at the Pennsylvania State Correctional 

Institute at Graterford entered the cell of plaintiff-appellant Michael Bristol, who was 

also an inmate there, called him a “child molester,” and punched and kicked him for 
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between 20 and 40 seconds. Bristol subsequently filed this case against Graterford 

Correctional Officer E.T. Settle, asserting an Eighth Amendment failure-to-protect claim, 

brought under 42 U.S.C. § 1983, and associated state-law claims, arising out of the April 

2 attack.

1

 Bristol alleges that Officer Settle caused the attack by telling the other inmates 

that Bristol’s cellmate was a child molester. He alleges, further, that, a week after the 

beating, Officer Settle came to Bristol’s cell and informed him that the attack was 

intended for his cellmate, who had been convicted of a sex offense or offenses involving 

children.

Bristol appeals an order of the District Court granting summary judgment to 

Officer Settle and dismissing all of Bristol’s claims. We have jurisdiction over this 

appeal under 28 U.S.C. § 1291, and will affirm.

The District Court first found that the undisputed facts establish that Bristol failed 

to exhaust administrative remedies, as required by the Prison Litigation Reform Act, 42

U.S.C. § 1997e, and Woodford v. Ngo, 548 U.S. 81, 93 (2006), before an inmate may 

pursue a § 1983 claim concerning prison conditions. Specifically, evidence submitted by 

Graterford’s Grievance Coordinator showed, and Bristol admitted, that Bristol never 

submitted any grievance related to the April 2 attack. The District Court also considered 

and rejected Bristol’s argument that he was denied access to the grievance process, noting 

that, even accepting Bristol’s assertion that he did not learn about the grievance process 

 

1 Bristol also named Jeffrey Beard, Secretary of the Pennsylvania Department of 

Corrections, as a defendant. The District Court dismissed Bristol’s claims against Beard, 

and Bristol has not raised that dismissal as an issue on appeal. Bristol acknowledges that 

this appeal pertains only to his claims against Officer Settle.
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until after the attack, when he was at a different facility, Bristol never attempted to file a 

grievance or asked that his failure timely to file a grievance be excused. 

On appeal, Bristol reasserts the argument that he should be excused from filing a 

grievance in this case, without citing any supporting caselaw or facts that the District 

Court failed to consider. Given the mandatory nature of the administrative exhaustion 

requirement, see Jones v. Bock, 549 U.S. 199, 211 (2007), and Bristol’s failure to identify 

any basis on which we could hold that the grievance process was unavailable in his case, 

we agree with, and adopt, the District Court’s analysis and conclusion on this point.

The District Court also considered the merits of Bristol’s federal failure-to-protect 

and state-law claims and held that he failed to present sufficient admissible evidence to 

survive summary judgment. Bristol seeks to rely on his own assertion that Officer Settle 

told other, unidentified inmates (presumably the same inmates who attacked Bristol, but 

Bristol has not offered any evidence on that point) that Bristol’s cellmate was a child 

molester. But Bristol acknowledged at his deposition that he was not present when those 

remarks allegedly were made, and Officer Settle testified that he never called Bristol’s 

cellmate a child molester. The District Court properly held that Bristol’s testimony about 

what Officer Settle said to other, unidentified inmates outside of Bristol’s presence would 

be inadmissible at trial and, therefore, does not create a genuine issue of material fact. 

Bristol’s primary response on appeal is to suggest that the admissibility of 

evidence at trial is irrelevant at the summary judgment stage, but Federal Rule of Civil 

Procedure 56 plainly states otherwise. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or 

declaration used to support or oppose a motion must . . . set out facts that would be 
4

admissible in evidence . . . .”); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 

378, 387 n.13 (3d Cir. 1999) (noting that “it is not proper” to consider evidence that 

would not be admissible at trial “on summary judgment”). Bristol also argues on appeal 

that his testimony that, on April 9, a week after the attack, Officer Settle told him that the 

attack was intended for his cellmate confirms that Officer Settle orchestrated the attack. 

But Officer Settle’s after-the-fact statement about the attack does not, without more, 

establish a genuine fact question as to whether, before the attack, Officer Settle knew of 

and unreasonably disregarded a risk of harm, which Bristol would have to show to 

survive summary judgment on his failure-to-protect claim. See Beers-Capitol v. Whetzel, 

256 F.3d 120, 133 (3d Cir. 2001) (“To be liable on a deliberate indifference claim, a 

defendant prison official must both know of and disregard an excessive risk to inmate 

health or safety.” (internal quotation marks and alterations omitted)).

The District Court also held that Bristol had not adduced sufficient facts to 

establish that Officer Settle’s actions caused his injuries. Even accepting as true Bristol’s 

allegation that Officer Settle told other inmates that Bristol’s cellmate was a child 

molester (which, for reasons described above, we cannot do), that does not establish 

either a risk of harm to Bristol or that Officer Settle’s comments caused the attack.

Finally, the District Court observed that Bristol’s complaint did not contain any 

specific state-law claims; it stated only that the Court had jurisdiction to “consider claims 

arising under state law.” Nevertheless, it considered the possibility that Bristol may have 

intended to allege state-law assault, battery, negligence, and gross negligence claims, and 
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held that any such claims suffered from the same lack of evidence as Bristol’s failure-toprotect claim. We agree.

Accordingly, and for essentially the reasons set forth in the District Court’s 

opinion, we will affirm the judgment dismissing Bristol’s claims.