2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-24-2011

Nolan Bizzell v. Franklin Tennis

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1529

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Recommended Citation

"Nolan Bizzell v. Franklin Tennis" (2011). 2011 Decisions. Paper 323.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1529

___________

NOLAN BIZZELL,

Appellant

v.

SUPERINTENDENT FRANKLIN J. TENNIS;

MAJOR MORRIS; CAPTAIN EDEN; C.O. PORTER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-09-cv-01353)

District Judge: Honorable Richard P. Conaboy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 18, 2011

Before: SCIRICA, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges

(Filed: October 24, 2011)

_________

OPINION OF THE COURT

_________

PER CURIAM.

Pro se plaintiff Nolan Bizzell appeals orders granting summary judgment in favor 

of the defendants and denying a motion for reconsideration. Having reviewed the record, 

we are in full accord with the District Court and will affirm its judgment.
2

The basic facts of this lawsuit are not in dispute. During the time in controversy, 

Bizzell was incarcerated at the State Correctional Institution at Rockview, located in 

Bellefonte, Pennsylvania. In early 2007, he was paired with a new cellmate, Baron 

Powell, whose threatening remarks, erratic behavior, and racialist tendencies were cause 

for some alarm. On several occasions, Bizzell complained to prison staff members 

(including defendant Corrections Officer Porter) about his stormy relationship with 

Powell—for example, informing a Sergeant that “my celly is crazy”—and was instructed 

to “keep doing what you’re doing” and “stay out of trouble.” Bizzell, who was focused 

on “get[ting his] GED” and “conduct[ing] [him]self as a positive citizen,” as well as on 

keeping his prison job, followed this advice, and for some time the tension between the 

two cellmates remained purely verbal.

On July 6, 2007, Bizzell discovered a four-inch-long bolt in his property box. 

Recognizing that it was contraband—and, worse, contraband that could “be sharpened . . 

. [into] a potential weapon”—Bizzell took the bolt to defendant Porter, informing him 

that he “found this in [his] property and [he] did not put it there.” Bizzell further told 

Porter that he suspected Powell to be the culprit, as no other inmate could have placed the 

contraband in the cell. Bizzell suspected that Powell was “trying to set [him] up” (i.e. get 

him cited for misconduct); he also may have told Porter that he was concerned about 

personal safety.1

 1 The facts as recounted by Bizzell in his deposition do not entirely correspond to what he 

included in his pleadings. In the complaint and in his response to the defendants’ motion 

 Porter assured Bizzell that he would “take care of it.” 
3

The next day, Bizzell went to see defendant Major Morris. He again explained the 

situation regarding the bolt, implicating Powell and emphasizing that he did not wish to 

be sanctioned for this possible contraband. In response to Bizzell’s worries over Porter’s 

apparent lack of action, Morris told Bizzell to “stop being paranoid,” advised him to see a 

psychiatrist to “get [his] medication upped,” and walked away.

Undeterred, Bizzell continued to seek help, asking his work supervisor (Crispell, a 

non-party) to call defendant Captain Eden. Crispell did so, informed Eden of the 

 

for summary judgment, he described telling various employees of the prison (some of 

whom are parties, some of whom are not) that he was concerned for his personal safety 

and that Powell “would attack him as he was being bullied by him.” His deposition 

testimony (which, we should note, is not reproduced in full in the defendants’ 

submissions, and does not contain much material associated with Bizzell’s non-party 

discussions) was more equivocal, couched more in terms of the potential institutional and 

collateral harm connected to being caught with contraband:

Q. Why, if he wanted to cause you harm, would he hide the bolt in your 

stuff as opposed to his stuff?

A. Well, wouldn’t you think it would be easier if the shakedown came in 

your cell and there’s an object in there, who would get in trouble? Either 

way, whatever which way it goes; physically, mentally, emotionally or 

whatever which way it will go, I would be harmed because everything I 

did, my outside clearance, my education, my schoolwork. You have to 

have a certain clearance to do what I was doing where there’s an outside 

clearance. I can work outside without supervision, so I don’t have to

have a staff member with me. So if they go and find that in my cell, there’s 

no, oh, I don't know how that got there. That’s a misconduct, you know 

that. And I believe I did the right thing as the policy say[s], when you find 

any contraband, because I’m responsible for what’s [] in that cell, 

regardless if it’s mine or not mine, I am to take it up to the officer 

immediately.

Dep. Tr. 42:22–43:19, ECF No. 19-2. Bizzell elsewhere admitted that his complaint 

contained some factual inaccuracies. See, e.g., Dep. Tr. 62:10–14 (clarifying that his 

“several days” of hospitalization was actually just “one day”).
4

situation, and told Bizzell of Eden’s advice: “not to worry about it.” 

Later that day, after speaking to several other individuals—and apparently issuing 

an agitated plea to non-party Nurse Paula, in which he described his fears of an 

impending attack—Bizzell was assaulted in his cell by Powell. Bizzell sustained serious 

injuries from the beating and was briefly hospitalized. During his convalescence, he met 

with defendant Superintendent Tennis, with whom he had not previously spoken. 

After exhausting his administrative grievances,2

“We exercise plenary review of the district court’s grant of defendants’ motion for 

and following his release from 

prison and his relocation to Florida, Bizzell initiated this 42 U.S.C. § 1983 suit against 

defendants Tennis, Morris, Eden, and Porter, alleging that they violated his rights under 

the Eighth Amendment to the United States Constitution by displaying “deliberat[e] 

indifferen[ce] to his personal safety by ignoring repeated complaints and requests for 

assistance for protection from [Powell].” Compl. ¶ 1, ECF No. 1. The defendants moved 

for summary judgment. The presiding Magistrate Judge issued a Report and 

Recommendation (R&R) in favor of summary judgment; Bizzell filed objections, but did 

not do so in a timely fashion. Accordingly, the District Court performed “clear error” 

review of the R&R and granted summary judgment in favor of the defendants. Bizzell 

moved for reconsideration of this outcome, after the denial of which he filed a timely 

notice of appeal.

 2 See 42 U.S.C. § 1997e(a). 
5

summary judgment.” Fontroy v. Owens, 150 F.3d 239, 242 (3d Cir. 1998).

3

 In so doing, 

we apply “the same standard that the lower court should have applied.” Farrell v. 

Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000); see also Fed. R. Civ. P. 56(a)

(summary judgment is appropriate if “there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law”).

4

 3 Our selection of a standard of review is complicated somewhat by Bizzell’s untimely 

filing of objections to the R&R; indeed, he specifically asks us to deem his objections 

timely and remand the case to the District Court for de novo review. His argument to this 

end, which is based on the “confusing” nature of the local and Federal rules, is 

unavailing. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (observing 

that pro se status is no excuse for failure to follow Federal Rules); see also McNeil v. 

United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural 

rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those 

who proceed without counsel.”). However, despite “denying” Bizzell’s motion for 

reconsideration, the District Court functionally analyzed his objections de novo; 

therefore, we need not determine what effect his failure to timely object may have had on 

our standard of review. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); 

Henderson v. Carlson, 812 F.2d 874, 878 n.4 (3d Cir. 1987). As the sole focus of the 

motion for reconsideration was in fact achieved in all but name, we will not discuss it 

further herein.

 In determining whether 

summary judgment is appropriate, we must “view all evidence and draw all inferences in 

the light most favorable to the non-moving party.” Startzell v. City of Phila., 533 F.3d 

183, 192 (3d Cir. 2008). “[T]he non-moving party must rebut the [summary-judgment] 

motion with facts in the record and cannot rest solely on assertions made in the pleadings

[or in] legal memoranda . . . .” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 

4 The R&R issued on November 29, 2010, and the District Court entered its order on 

December 20, 2010. In the interim, the 2010 revisions to the Federal Rules went into 

effect. We cite above to the December 2010 revision, but the differences between the old 

and new Rule 56 do not affect the substantive summary-judgment standard. See Fed. R. 

Civ. P. 56 advisory committee’s 2010 note.
6

(3d Cir. 2006) (internal citations and quotations omitted).

We agree that the defendants were entitled to summary judgment. The Eighth 

Amendment’s prohibition on “cruel and unusual punishments” has “been interpreted to 

impose a duty upon prison officials to take reasonable measures to protect prisoners from 

violence at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 

1997) (citations and quotations omitted). But “a prison official cannot be found liable 

under the Eighth Amendment for denying an inmate humane conditions of confinement 

unless the official knows of and disregards an excessive risk to inmate health or safety.” 

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added); see also Betts v. New 

Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010). “Consequently, to survive 

summary judgment on an Eighth Amendment claim asserted under 42 U.S.C. § 1983, a 

plaintiff is required to produce sufficient evidence of (1) a substantial risk of serious

harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.” 

Hamilton, 117 F.3d at 746 (emphasis added). Here, there is no indication that the 

defendants were aware of a serious risk posed to Bizzell by Powell. The two had not 

previously fought; Bizzell’s pre-July complaints focused on Powell’s instability and not 

his potential for (and threats of) violence. Even if we were to follow the July events as 

Bizzell describes them in his complaint and memorandum of law, his expressions of fear 

upon finding the bolt were mixed with concerns over disciplinary sanctions for 

contraband. The bolt itself, as Bizzell admits, was not fashioned into a weapon, and had 

been confiscated by the defendants before the assault. Powell’s disciplinary history, 
7

meanwhile, suggests a troublemaker with violent tendencies—hardly an ideal cellmate

for Bizzell5

In sum, while we agree with the defendants that the assault was tragic, we also 

believe that they did not demonstrate the deliberate indifference to a serious risk of harm 

required for liability under the Eighth Amendment. We will therefore affirm the 

judgment of the District Court.

—but (as the District Court explained) his citations for fighting were from 

September 2005, and therefore did not suggest an immediate risk of violence. See

Brennan, 511 U.S. at 837 (“[T]he official must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he must also 

draw the inference.”); Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (in case 

with similar fact pattern, “before Defendants’ awareness arises to a sufficient level of 

culpability, there must be much more than mere awareness of [a cellmate’s] generally 

problematic nature”); cf. Verdecia v. Adams, 327 F.3d 1171, 1175–76 (10th Cir. 2003)

(distinguishing Eighth Amendment deliberate indifference from situations in which a 

defendant is “negligent in assessing [a] risk”). Finally, Bizzell has shown no personal 

involvement by defendant Tennis in any aspect of a potential constitutional violation, and 

§ 1983 liability cannot be premised solely on respondeat superior. Evancho v. Fisher, 

423 F.3d 347, 353 (3d Cir. 2005) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d 

Cir. 1988)).

 5 Of course, Bizzell had no constitutional right to a cellmate of his choosing. See Murray 

v. Bledsoe, ___ F.3d ___, No. 10-4397, 2011 WL 2279428, at *1 (3d Cir. June 10, 2011).