* AMENDED BLD-117 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1368
___________
KEITH COLLIER,
Appellant
v.
CORRECTIONAL OFFICER ADAMS; CAPTAIN BLUDWORTH
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civil No. 1-09-cv-02232)
District Judge: Honorable Sylvia H. Rambo
____________________________________
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
February 20, 2015
Before: AMBRO, JORDAN and KRAUSE, Circuit Judges
(Opinion filed: February 25, 2015)
_________
OPINION*
_________
PER CURIAM
Keith Collier, a federal prisoner proceeding pro se, appeals from an order of the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
District Court granting summary judgment to the remaining Defendants in this action
brought by Collier pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). For the reasons that follow, we will affirm.
In 2008, Collier was moved to the Special Housing Unit at USP Allenwood as a
result of a gambling investigation. When his belongings were packed for the move,
officers found homemade intoxicants and disciplinary proceedings ensued. In protest,
Collier began a hunger strike on July 4, 2008. He alleged that Defendant Bludworth
threatened to shut off the water to his cell if he maintained the hunger strike and that
Defendant Adams shut off the water on July 9, 2008. Running water was restored to his
cell on July 12, 2008. Collier ended his hunger strike on July 16, 2008.
While he was on the hunger strike, Collier was seen daily by prison medical staff,1
who monitored his health and counseled him about the risks of not eating and drinking.
Although water to his cell was turned off for 77 hours at the beginning of the strike, water
was available to Collier in the medical areas, and milk was available at breakfast each
day. Collier, however, did not ask medical staff (or any other staff) for a drink because
he felt he should not have had to ask. He did not accept milk at breakfast because he felt
it was like food. Collier became dehydrated and was given intravenous fluids on two
days prior to the end of his hunger strike.
Collier subsequently filed a Bivens complaint that included allegations that he had
been injured by the deprivation of water to his cell. The District Court dismissed the
1
It appears that there was one day during the hunger strike that Collier was not seen
by medical staff: July 13, 2008, after running water was restored to his cell.
2
majority of Collier’s complaint for failure to state a claim upon which relief could be
granted, but permitted Collier’s Eighth Amendment claim regarding water deprivation to
proceed. Bludworth and Adams, the remaining defendants, then moved for summary
judgment, which the District Court granted. On appeal, we vacated the grant of summary
judgment and remanded for further proceedings because the record was not clear on
whether the water deprivation amounted to a violation of the Eighth Amendment. See
Collier v. Martinez, 474 F. App’x 870, 874 (3d Cir. 2012). We concluded that there was
an unresolved factual dispute regarding whether Collier had access to alternative sources
of drinking water during the 77 hours. Id. We further noted that the Eighth Amendment
claim would fail if it were shown that Collier had “access to adequate hydration during
the period in question, even in conjunction with meals he otherwise did not desire to eat .
. . [because] he would not be able to show that the complained-of deprivation was
‘sufficiently serious.’” Id. at n.5.
On remand, the parties engaged in additional discovery and filed new motions for
summary judgment. The Magistrate Judge recommended that summary judgment be
granted in favor of the Defendants, concluding in part that they were entitled to qualified
immunity because Collier had failed to establish a violation of the Eighth Amendment.
The Magistrate Judge explained that the undisputed facts showed that Collier had access
to fluids during the 77-hour period in which the water to his cell was shut off: milk was
available every morning and water was available in the medical areas where Collier was
seen each day during the period. Collier chose not to drink milk and did not ask medical
staff, or any other staff, for water. Moreover, he did not establish that he would have
3
been refused fluids if he asked for them. Nor did Collier show that the Defendants were
deliberately indifferent to a substantial risk because they were aware that inmates on
hunger strike were treated on regular basis by medical staff to ensure their health and
safety. The District Court adopted the Magistrate Judge’s report and ordered that
judgment be entered in favor of the Defendants. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and, if no substantial question
is presented, we may affirm on any ground supported by the record. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6; Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We
review de novo the District Court’s order granting summary judgment to the Defendants.
See Schmidt v. Creedon, 639 F.3d 587, 594-95 (3d Cir. 2011). Summary judgment is
appropriate where “the movant shows that 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).
Although “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor in determining whether a genuine factual question
exists, summary judgment should not be denied unless there is sufficient evidence for a
jury to reasonably find for the non[-]movant.” Barefoot Architect, Inc. v. Bunge, 632
F.3d 822, 826 (3d Cir. 2011) (internal quotation marks and citation omitted).
To determine whether an official is entitled to qualified immunity, a court must
decide whether (1) the facts shown by the plaintiff “make out a violation of a
constitutional right,” and (2) “the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). “If the
plaintiff fails to satisfy either prong, the defendant is entitled to judgment as a matter of
4
law.” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). For substantially
the reasons set forth in the Magistrate Judge’s report and the District Court’s
memorandum opinion, we agree that Collier failed to make out an Eighth Amendment
violation and that, as a result, the Defendants were entitled to summary judgment on
qualified immunity grounds.
To prove an Eighth Amendment violation, Collier had to show that he was
deprived of “the minimal civilized measure of life’s necessities . . . [which] includes
proving that the deprivation suffered was sufficiently serious, and that a prison official
acted with deliberate indifference in subjecting him to that deprivation.” Griffin v.
Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (internal quotation marks and citation
omitted). Although the water to Collier’s cell was shut off for 77 hours, the conditions
did not amount to the complete or nearly complete lack of access to fluids that we
previously were concerned about. See Collier, 474 F. App’x at 874. On the contrary,
fluids were available daily, but Collier either refused them or failed to ask for them.
Although he asserted before the District Court that an issue of material fact was in
dispute and that summary judgment should not be granted to the Defendants, he failed to
specify what fact was in dispute and cite supporting evidence. This is insufficient under
Rule 56, which requires a party who asserts that a fact is genuinely disputed to support
that assertion by either citing specific material in the record, or showing that the material
cited does not establish the absence of a genuine dispute. See Fed. R. Civ. P. 56(c)(1).
Therefore, the District Court appropriately rejected Collier’s unsupported assertion.
The District Court also reiterated that the following facts undisputed facts were
5
presented by the Defendants:
Collier’s hunger strike began on July 4, 2008 and ended July 12,
2008.2 His cell, except for toilet water [which was free of urine], was
without water for 77 hours. During those times, Collier had access to
fluids such as milk each morning, and he never asked staff for water
or fluids. He was constantly monitored and evaluated by medical
staff during the 77 hours at issue. Collier was constantly counseled by
medical staff regarding the need to be hydrated. He was given
intravenous fluids on two occasions.
Mem. Op. at 4, ECF No. 143. Under these facts, we agree with the District Court that
Collier failed to show that the deprivation of running water in his cell for 77 hours was
“sufficiently serious.” Cf. Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995) (prisoner
held in cell without clothes, mattress, and running water for four days, but who was
provided milk which he did not like to drink, did not show that the conditions violated the
Eighth Amendment). Given that the Defendants also established that they were aware
that prisoners on hunger strike were monitored daily by medical staff, as Collier was, we
also agree that Collier failed to show that they acted with deliberate indifference when
they shut off the water to his cell.3 Collier has failed to offer any arguments on appeal
challenging the District Court’s decision.4
2
It appears that the District Court confused the date the water was turned back on in
Collier’s cell, July 12th, with the date he ended his hunger strike, July 16th. See Report
& Recommendation at 18, 21, ECF No. 133; Statement of Facts in Supp. of Defs.’ Mot.
for Summ. J. at ¶¶ 4, 119, ECF No. 112.
3
We also note that the administration of intravenous fluids for dehydration occurred days
after the water supply to Collier’s cell was restored, and Collier did not aver that he
suffered any long-term, lasting physical effects from his hunger strike.
4
The District Court also rejected Collier’s challenge to the earlier denials of his motions
to appoint counsel and close discovery, which he raised in his objections to the
6
Accordingly, we will summarily affirm the District Court’s order granting
summary judgment to the Defendants. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Magistrate Judge’s report. The court determined that the challenges were untimely and
that the Magistrate Judge had properly deemed the motion to close discovery to be
withdrawn because Collier did not file a supporting brief. Collier has raised no
arguments on appeal regarding this aspect of the District Court’s decision.
7