C L D

- 1 2 8 NOT PRECED ENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 9

- 3094

___________ ANTHONY C. ALLEN ,

Appellant

v. J. A. ECKARD; A. EBERLING; K. M. SPARR; R. W. GOUGHNOUR; A. J. HIMES;

C. MCCONNELL; NURSE C. SWA NGER

____________________________________ 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

__________ __________________________ Submit te d 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 F e b r u a r y 2 7 , 2 0 2 0 Before: JORDAN, KRAUSE and MATEY , Circuit Judges

(Opinion filed : March 11, 2020 )

_________ OPINION *

_________ PER C URIAM

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent

.2

Appellant Anthony C. Allen, proceeding pro se and in forma pauperis, appeals from th e District Court’s order granting summary judgment to the defendants. Because the appeal presents no substantial question, we wil l summarily affirm the judgment of t he District Court. Allen filed a complaint under 42 U.S.C. § 1983 alleging that, after esc ort ing Allen to his cell from a prison library, two officers pulled him out of his cell and slammed him on the ground without prov ocation

. Once Allen was on the gr ou nd, other officers, including a supervisor, responded to the scene and implemented the pri son’s protocol for an unplanned use of force. A l though Allen alleged that he experienced medical problems attributable to the eve nt , including bruises, scrapes, an d 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

. Al le n claimed that (1) the officers who restrained him used excessive force , (2) two superviso rs failed to protect him, (3) two medical providers were deliberately indifferent to his medical needs , and (4) the misconduct hea ring examiner viola ted his due pro ce ss rights and conspired against him

. He also claimed that the supervisor s 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 H ousing Unit (“ RHU ”)

.3

After filing their answer , the defendants moved for judgment on the p leadings

. 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 th e close of discovery , the defendants moved for summary judgment. The District Court grant ed the motion, determining that (1) video evidence of the unplanned force incident invalidated Al len’s
factual account re garding e xcessive force , (2) Allen did not ex haust his failure to train or supervise claim as required under the Prison Litigation Refo rm Act (“PLRA”) , and (3) Allen’s deliberate indifference to medical needs claim was moot because he voluntarily dismissed one of t he defendants against whom the cla im was made and failed to effectuate service on the other

. Allen timely appealed

. We have j urisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de novo the D istrict Court’s grant of a motion for judgment on the pleadings under Federal Rul e 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

est ablishes there are no material issues of fact, and that he or she is entitled to ju dgment as a matter of law.” Id. Likewise, we review de novo the District Court’s grant o f summary judgment. Blunt v. Lower Merion Sch. Dist. , 767 F.3d 247, 265 (3d Cir. 2 014). Summary judgment is appropriate “if the movant shows that there is no genu in e dispute as to any material fact and the movant is entitled to judgment as a matter of la w.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the evide nce is sufficient for a reasonable factfinder t o return a verdict for the non

- mov in g party. Anderson v. Liberty4

Lobby, Inc. , 477 U.S. 242, 248 (1986). In evaluating a moti on for summary judgment, “all justifiable inferences are to be drawn in . . . favor” of the non

- moving party. Id. at 255. Howeve r, “[w]hen opposing parties tell t wo different stories, one of which is blatantly contradicted by the reco rd, so that no reaso nable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary jud gment.” Scott v. Harris , 550 U.S. 3 72, 380 (2007). A d d i t i o n a l l y , w e 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 se veral of Allen’s cla ims failed on the plead in gs 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, 65 0 (3d Cir. 2002) (explain ing that a corrections officer is
li able 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 grou nd

. He did not allege that the ot he r 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 , 48 5

– 8 6 (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 month s of discip linary confinement did no t implicate a5

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 Ro th schild 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 agre ement, and the object of the consp ir acy).
We also agree with the District Court ’s entry of summary judgment for the defendants as to Allen’s excessive force claim. Althoug h Allen’s version of events contradicted the defendants’ account, no reasonable fac tfinder cou ld conclude that the of fi cer - defendants used excessive force against Allen because videotape evidence of the incident “blatantly contradicts” Allen’s version of e vents

. See Scott , 550 U.S. at 380 (holding that videotape evidence “utterly discre dited” the non - mov ing party’s vers io n of

events and warranted summary judgment for the movant)

. Allen’s affidavit state d that , after he was escorted to his cell , for no reason and without provocation, one of the officer s pulled Allen out of the cell by th e tether at tached between Allen’s ha nd restraints

. After the officer pulled him out of the cell , he slammed Allen to the ground and restrained him with the help o f another officer

. By contrast, t he officers’ incident report s stated that, after being esco rted to his cell, Allen turned and t ried to pull his tether
into the cell

. When the officer holding the tether ordered Allen to turn around , Allen made a n aggressive lunging gesture toward him . After a struggle for control, the officer pulled Allen from the cell an d restrained him on the g round.6

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 i s pulled into the cell

. The other officer then assists in pull ing Allen out of the cell and restraining him on the grou nd

. While the footage does not depict what occurred inside Allen’s cell, it shows that Allen was re moved from the cell and re s trained o nly after the officer was pulled in to the cell. W ithout 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 althoug h the video is consiste nt with Allen’s assertions that the officers brought him to the ground with signific ant force, and that one officer got on his back , neither fact could compel a reasonable factfinder to conclude that the officers acted

“ ma liciously a nd sadistically for the p urpose of causing harm .” Whitley v. Albers , 475 U.S. 312, 319 (1986) ; see also Fu entes v. Wagner , 206 F.3d 335, 346 (3d Cir. 2000) ( noting that even a prison officer’s “over

- reaction” to an inmate

- caused disturbance

wou ld fall sho rt of supporting a find in g of excessive force where the totality of the circumstances indicate d that the fo rce 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 w e 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 office rs regarding the7

proper use of for ce in response to RHU inmate disturbances a n d exhibited deliberate indifference to a known pattern of officer assaults. Th ere are several ways to establish supervisory liability under § 1983. See Barkes v. First Corr. Me d., Inc. , 766 F.3d 307, 316 (3d Ci r. 2014), rev’d on other grounds , Taylor v. Barkes , 135 S. Ct. 2042 (2015) (per curiam) (explaining that “failure to” claim s are generally considered to be a subcategory of “policy or practice” liability). However, all of them require a showing that there w as an actual constitutional violation at the hands of subordinates. Santiago v. Warminster Twp. , 629 F.3d 121, 130 (3d C ir. 2010); see also Sample v. Diecks , 885 F.2d 1099, 1118 (3d Cir. 1989) (describing the four

- part test for supervisory liability). Be cause 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 def endants against whom the claim was m ade had been dismissed , either voluntarily by Allen or for his failure to effectuate service

. See Fed . R. Civ. P. 4(m) (stating that a d efendant must be served within 90 days of the filing of the complaint).
Because All en’s appeal presents no substantia l question, we will affirm the judgment of the District Court.