Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-8-2005
Morgan v. Terhune
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2523
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Recommended Citation
"Morgan v. Terhune" (2005). 2005 Decisions. Paper 144.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2523
KENNY MORGAN,
Appellant
v.
JACK TERHUNE; ROY HENDRICKS; MORAN; M. BRZDEK;
S. BRZDEK; J. FRY; MASTROPOLO; KEATON; WERESK;
G. A. SMITH; DIVITIS; CMS STAFF; FRANK JAMES; GAIL GILLESPE
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 00-cv-05888
(Honorable Anne E. Thompson)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 14, 2005
Before: SCIRICA, Chief Judge, FISHER and ALDISERT Circuit Judges
(Filed December 8, 2005)
OPINION OF THE COURT
PER CURIAM.
Kenny Morgan, a New Jersey state prisoner, appeals pro se from an adverse jury
verdict entered in the United States District Court for the District of New Jersey. Finding
no error, we will affirm.
Morgan commenced this civil rights action pro se, but the District Court appointed
him counsel who filed an Amended Complaint pursuant to 42 U.S.C. § 1983 against
prison officials, numerous corrections officers, a prison law librarian, and medical staff.
Morgan alleged that he was assaulted by the officers, and that prison officials denied him
showers and yard time, provided unsanitary cell conditions, and poisoned his food in
violation of the Eighth and Fourteenth Amendments.1
The defendants filed a motion for judgment on the pleadings, which was denied.
The defendants then filed a motion for partial summary judgment. The District Court
granted the motion as to the failure-to-protect claim against defendants Terhune and
Hendricks, but denied it as to the claim regarding the conditions of confinement.
Thereafter, the defendants renewed their motion for summary judgment as to the
conditions of Morgan’s confinement, contending (as they did in their Answer to the
Amended Complaint) that Morgan failed to exhaust administrative remedies. The District
Court granted summary judgment as to the claim concerning the conditions of
confinement, but denied it as to Morgan’s remaining claims. Morgan proceeded to trial
on his excessive force claim against four corrections officers and a prison sergeant. At
the conclusion of the three-day trial, the jury returned a verdict in favor of the defendants,
finding that Morgan failed to prove by a preponderance of the evidence that any of the
1
Morgan asserted three additional claims in his Amended Complaint, but abandoned
them in the final pre-trial order.
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defendants violated the Eighth Amendment by intentionally using excessive force against
Morgan. Morgan filed a motion for new trial, which was denied. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
As a threshold matter, Morgan has not provided a copy of the trial transcript, and
thus he cannot contend on appeal that a jury finding or conclusion is unsupported by, or
contrary to, the evidence. See Fed. R. App. P. 10(b)(2). In any event, because Morgan
raises no substantive argument on appeal regarding the adverse jury verdict or the District
Court’s denial of his motion for a new trial, he has waived his opportunity to challenge
these rulings. See Fed. R. App. P. 28(a)(5); United States v. Pellulo, 399 F.3d 197, 222
(3d Cir. 2005). Instead, Morgan argues that the District Court improperly granted
summary judgment in favor of defendants Terhune and Hendricks on the failure-to-
protect claim. See Br. at 9-10.2
To prevail on an Eighth Amendment failure-to-protect claim, a prisoner must
establish that the prison official “knows of and disregards an excessive risk to inmate
health or safety; the 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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). To survive summary
judgment, Morgan is thus required “to produce sufficient evidence of (1) a substantial
2
We exercise plenary review over the District Court’s grant of summary judgment.
Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).
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risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3)
causation.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).
As the District Court concluded, Morgan has not met his burden of establishing
that Terhune and Hendricks acted with deliberate indifference. Morgan did not submit
any evidence indicating that he had been mistreated prior to the incident by correctional
officers or other prison officials. In fact, Morgan conceded during his deposition
testimony that before the alleged altercation, he did not have any “problems” with the
officers. Finally, Morgan’s letter written to Terhune and Hendricks summarizing the
incident after it occurred is insufficient to establish that Morgan suffered from a
substantial risk of serious harm or that the defendants were deliberately indifferent to that
risk. On this record, the District Court properly granted the defendants’ motion for
summary judgment.
For the foregoing reasons, we will affirm the District Court’s judgment.
Appellees’ motion to strike Morgan’s informal brief is denied.
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