NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2295
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BRIAN C. MOORE,
Appellant
v.
ANGELA D. MANN, individually and in their official capacities;
RENEE FOULDS, individually and in their official capacities; HERING;
BRINER; SGT. ZAMBONI, individually and in their official capacities;
DAVID VARANO, individually and in their official capacities;
LIEUTENANT LONG, individually and in their official capacities;
JOHN E. WETZEL, individually and in their official capacities
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-13-cv-02771)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 8, 2019
Before: MCKEE, COWEN, and ROTH, Circuit Judges
(Opinion filed: August 14, 2020)
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OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Brian C. Moore, a Pennsylvania state prisoner proceeding in
forma pauperis, appeals from the District Court’s order granting summary judgment to
the remaining defendants in a civil rights action he filed pursuant to 42 U.S.C. § 1983.
For the reasons discussed below, we will vacate the District Court’s order and remand for
further proceedings consistent with this opinion.
I.
Moore’s complaint alleged that, in 2011, he witnessed his former counselor at
SCI-Coal Township, defendant Angela Mann, engaging in inappropriate sexual contact
with other inmates. Shortly thereafter, Mann and other corrections defendants allegedly
began making inflammatory statements about Moore, calling him a pedophile, gay, and a
snitch.1 Moore claimed that the defendants violated his Eighth Amendment rights by
making these statements to other inmates, thereby placing him in a class of vulnerable
inmates that are frequently subject to assault. Moore also raised other claims stemming
from his allegations that the defendants filed a false misconduct against him, resulting in
a sanction of 270 days in the Restricted Housing Unit, and lost prison wages for that time
period.
1
Moore is a convicted sex offender. He filed a prison grievance related to the alleged
misconduct by Mann and the other defendants.
2
The defendants filed a motion to dismiss, which the District Court granted in part.
The District Court dismissed all claims against defendants Varano, Wetzel, and Long for
failure to plead their personal involvement; all claims against all defendants in their
official capacities for monetary damages, because the claims were barred by the Eleventh
Amendment; all state law tort claims because they were barred by sovereign immunity
under state law; all due process claims, because Moore’s sanction of 270 days’
disciplinary confinement and loss of prison wages were insufficient legal interests to
trigger due process protection; and all claims based on the violation of criminal statutes
and Department of Corrections regulations, as the alleged violation of those statutes and
regulations did not state a claim under 42 U.S.C. § 1983.2 The District Court denied the
motion to dismiss with respect to Moore’s Eighth Amendment failure-to-protect claim
against the defendants who allegedly disparaged Moore and discussed his criminal
history, including defendants Mann, Foulds, Hering, Briner, and Zamboni.
After discovery, the remaining defendants moved for summary judgment. All of
the remaining defendants categorically denied that they discussed Moore’s criminal
history with other inmates. Defendant Long added that he interviewed all staff members
connected with Moore’s grievance, and that none were aware of Moore’s allegations.
2
We do not address these claims further, as Moore does not challenge the order granting
the motion to dismiss in part. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005)
(“It is well settled that an appellant’s failure to identify or argue an issue in his opening
brief constitutes waiver of that issue on appeal.”).
3
Additionally, an investigation by the Office of Special Investigations and Intelligence,
independent of the grievance process, did not substantiate most of Moore’s claims,
although Moore did state in that investigation that Mann was labeling him a snitch and
openly discussing his criminal history.
Moore opposed the summary judgment motion with his affidavits, an affidavit
from a fellow inmate named Terry Shay, the defendants’ responses to his interrogatories,
and his administrative grievance records. Moore’s affidavits state that he overheard the
defendants calling him a snitch, gay, and a pedophile in front of other inmates, and that,
as a result, other inmates at SCI-Coal Township threatened him with bodily harm in 2011
and 2012. After he transferred to SCI-Smithfield, he encountered the same threats in
2013 and 2014 because a number of inmates were transferred from SCI-Coal Township
to SCI-Smithfield. In his brief in opposition to the summary judgment motion, Moore
added that those threats have materialized. He stated he was assaulted by inmates at SCI-
Coal Township and SCI-Smithfield, though he did not describe those assaults or state that
he suffered any physical injuries. Shay’s affidavit similarly states that the defendants
openly discussed Moore’s criminal history, and that inmates at SCI-Smithfield have
threatened Moore as a result.
At least one interrogatory response, from defendant Angela Mann, states that
disparaging an inmate regarding his criminal history is prohibited under Department of
Corrections policy. The grievance records indicate that Moore informed at least
4
defendant Foulds that other defendants, including Mann, were placing him in danger by
discussing his criminal history with other inmates. And one of Moore’s affidavits states
that he informed Foulds of this information around September 2011.
The Magistrate Judge recommended denying the motion for summary judgment.
The District Court rejected the recommendation, and granted the motion for summary
judgment. The District Court determined that although there was a genuine issue of
material fact regarding whether the defendants actually told other inmates that Moore was
gay, a pedophile, or a snitch, Moore had not submitted any facts from which a jury could
find that the defendants knew of and disregarded the risk of serious harm that those
statements would create. This appeal ensued.
II.
We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over
the District Court’s order granting summary judgment. See Blunt v. Lower Merion Sch.
Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is proper when, viewing the
evidence in the light most favorable to the nonmoving party and drawing all inferences in
favor of that party, there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. Cty. of
Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).
5
III.
The Eighth Amendment protects prisoners from violence at the hands of others, as
“[b]eing violently assaulted in prison is simply not ‘part of the penalty that criminal
offenders pay for their offenses.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “This constitutional limitation on
punishment 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) (quotation marks and citations omitted). To
succeed on a failure-to-protect claim, a plaintiff must show: (1) a substantial risk of
serious harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.
See id. at 747. A prison official is deliberately indifferent to a substantial risk of serious
harm if the 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, 511
U.S. at 834.
Here, the District Court erred in finding that Moore has not submitted any facts
suggesting deliberate indifference by the defendants. See Higgs v. Att’y Gen. U.S., 655
F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant’s
pleadings is well-established.”). As discussed below, Moore certainly submitted some
facts in support of that claim, and we conclude that those facts show a genuine dispute
6
regarding whether the defendants were deliberately indifferent to the risk of telling other
inmates that Moore was gay, a pedophile, or a snitch.3
The District Court did not consider the contextual and circumstantial evidence that
Moore presented. See Hamilton, 117 F.3d at 747 (“A prison official's knowledge of a
substantial risk is a question of fact and can, of course, be proved by circumstantial
evidence.”) (citing Farmer, 511 U.S. at 839). We have previously noted that the sex
offender label is stigmatizing in the prison context, and that prison norms may call for the
assault of sex offenders. See Renchenski v. Williams, 622 F.3d 315, 326 (3d Cir. 2010).
Similarly, other circuits have held that prison officials’ failure to protect an inmate
labeled a “snitch” constitutes deliberate indifference. See Irving v. Dormire, 519 F.3d
441, 451 (8th Cir. 2008) (“After all, who better knows the opprobrium and consequent
effect thereof that attaches to the label of snitch than those who work daily within the
inmate population.”); Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001);
Northington v. Marin, 102 F.3d 1564, 1567 (10th Cir. 1996).
Here, Moore’s and Shay’s affidavits articulate those prison norms, and suggest the
defendants’ awareness of them. The affidavits state that the defendants created a risk of
serious harm by discussing Moore’s criminal history with other inmates, who have both
threatened to assault, and assaulted, Moore. In addition, Moore’s affidavit and the
3
The parties do not dispute that there is a genuine issue of material fact whether the
defendants actually made these statements to other inmates.
7
grievance records indicate that he communicated the risk of harm to at least defendant
Foulds. See Bistrian v. Levi, 696 F.3d 352, 369 (3d Cir. 2012) (deliberate indifference
prong of failure-to-protect claim was stated based on fact that plaintiff advised defendants
of risk of assault by fellow inmate). And the discovery response from defendant Mann
states that there is a policy which prohibits prison officials from disparaging an inmate
regarding his criminal history. While a knowing violation of a prison policy, standing
alone, might not provide sufficient evidence of a constitutional violation, cf. Longoria v.
Texas, 473 F.3d 586, 593 n.9 (5th Cir. 2006), when combined with the other evidence in
this record, it may provide circumstantial evidence to support a finding of deliberate
indifference here.
The defendants argue that Moore has not shown that he was assaulted or suffered
any harm. But an inmate need not wait until an actual attack occurs to obtain relief. See
Helling v. McKinney, 509 U.S. 25, 33 (1993); Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 257 (3d Cir. 2010); see also Benefield 241 F.3d at 1270-72 (inmate allegations
that officer labeled him a snitch in front of other inmates, even though inmate had not in
fact been assaulted, stated a claim under Eighth Amendment). Here, there is at least a
genuine issue of material fact whether the risk of assault was serious, and whether Moore
showed a sufficient likelihood that such injury will result from the defendants’ conduct.
Cf. Betts, 621 F.3d at 257.
8
The defendants also argue that Moore is prevented from recovering compensatory
damages for mental and emotional injuries because he has not shown that he suffered any
physical injuries from any assault. See Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir.
2003) (holding that 42 U.S.C. § 1997e(e) requires a “less-than-significant-but-more-than-
de minimis physical injury as a predicate to allowing the successful pleading of an
emotional injury”) (citations omitted). But while Moore has not specifically described
his injuries, he does state that he was assaulted on at least two occasions. Thus, we
conclude—construing his pro se pleadings liberally and in the light most favorable to him
as the nonmoving party—that whether he was assaulted and whether he suffered any
physical injuries are live questions.4
Accordingly, we will vacate the judgment of the District Court in part, see supra
n.2, and remand for further proceedings consistent with this opinion.
4
Of course, if he is unable to show a sufficient physical injury at trial, then 42 U.S.C.
§ 1997e(e) would apply. We note that even under that scenario, he could still seek
injunctive relief, nominal damages, and punitive damages without showing such a
physical injury. See Mitchell, 318 F.3d at 533.
9