Sharif Jones v. Shawn Treece ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-3233
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SHARIF JONES,
Appellant
v.
SHAWN TREECE, (Correctional Officer); KELLER, (G-block) Correctional Officer;
THOMAS JENKINS, (G-block) Correctional Officer; BROOKS, Sergeant, (G-Block)
Correctional Officer; SERGEANT RENNER; LIEUTENANT DEPHILLIPS, all defend-
ants are being sued in their individual and/or official capacities.
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
No. 2-16-cv-01453
Magistrate Judge: Hon. Maureen P. Kelly
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Argued: May 1, 2019
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Before: RESTREPO, PORTER, and FISHER,
Circuit Judges.
(Filed: May 20, 2019)
Amy McCrossen [Argued]
Jordan Winslow [Argued]
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, PA 15219
Adrian N. Roe
Roe & Simon
428 Boulevard of the Allies
Pittsburgh, PA 15219
Counsel for Plaintiff-Appellant Sharif Jones
Brandon M. Eberle
Santicola Steele & Fedeles
722 Turnpike Street
Beaver, PA 15009
Counsel for Defendant-Appellee Shawn Treece
Derek J. Illar [Argued]
Taylor Brailey
Eckert Seamans Cherin & Mellott
600 Grant Street
44th Floor, U.S. Steel Tower
Pittsburgh, PA 15219
Counsel for Defendant-Appellee Thomas Jenkins
Kevin T. Freyder
Suite 102
60 West High Street
Waynesburg, PA 15370
Counsel for Defendant-Appellee Donald Keller
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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.
2
PORTER, Circuit Judge.
Prisoner Sharif Jones claims that three state corrections officers forced him to watch
pornography, violating his Eighth Amendment rights, and sued them under 42 U.S.C.
§ 1983. The Magistrate Judge granted summary judgment for the officers. We will affirm.
I
In 1993, Jones was sentenced to life without parole for committing first-degree mur-
der and armed robbery in the Philadelphia area. As of early 2016, Jones was jailed at the
State Correctional Institution in Greene, Pennsylvania. In his initial pro se complaint, Jones
claimed that while he was incarcerated at SCI-Greene, corrections officers forced him to
watch pornographic videos and perform sexual acts on them and himself. Jones asserted
federal constitutional claims against the six officers allegedly involved. The Magistrate
Judge appointed pro bono counsel and the parties moved forward with discovery. About
nine months later, the officers moved for summary judgment.
In the face of these motions for summary judgment, Jones dropped three defendants
and narrowed his claims dramatically, limiting them to an Eighth Amendment conditions-
of-confinement claim against three officers—Shawn Treece, Donald Keller, and Thomas
Jenkins—for “deliberate indifference to his mental health in subjecting him to these por-
nographic materials.” J.A. 415–16 n.2. The Magistrate Judge granted summary judgment
for the officers, and Jones appealed.1
1
This civil action involves a federal question, so the Magistrate Judge had jurisdiction
under 28 U.S.C. § 1331. The parties voluntarily consented to having a magistrate judge
conduct proceedings, satisfying 28 U.S.C. § 636(c)(l). We have appellate jurisdiction under
3
II
The Magistrate Judge granted summary judgment for the officers for two reasons.
First, she found that Jones’s Eighth Amendment conditions-of-confinement argument was
a new claim first raised in response to the officers’ motions for summary judgment (rather
than pleaded in his complaint), so he did not properly plead it. Second, even if Jones
properly pleaded his Eighth Amendment allegation, the Magistrate Judge held that this
claim failed because of insufficient evidence. The Magistrate Judge was correct on both
issues.
Starting with the first point, a plaintiff generally “may not amend his complaint
through arguments in his brief in opposition to a motion for summary judgment.” Shanahan
v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996). In briefing, Jones concedes that he
“did not specifically, by name, allege an inhumane conditions of confinement action until
he obtained advice of counsel.” Appellant’s Br. 13.2 But Jones argues that this failure
should be forgiven because his pro se complaint should be liberally construed to include
this claim. Jones is correct that a pro se litigant’s pleadings are liberally construed. Higgs
v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011). But “[l]iberal pleading does not require
that, at the summary judgment stage, defendants must infer all possible claims that could
28 U.S.C. § 1291. “We exercise plenary review over a district court’s order granting sum-
mary judgment, applying the same standard as the district court.” Young v. Martin, 801
F.3d 172, 177 (3d Cir. 2015).
2
In one paragraph, under the heading “legal claims,” the complaint alleges “sexual harass-
ment, sexual assault, cruel and unusual punishment, failure to protect, excessive force, and
violation of due process,” which violated “due process under [the] Fourth, Eighth and Four-
teenth Amendments of the United States Constitution.” J.A. 40–41.
4
arise out of facts set forth in the complaint.” Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004). And in fact, while Jones filed his complaint pro se, he was
later represented by counsel—who declined to amend the handwritten complaint in the
nine months between appointment and summary judgment.
Second, even overlooking any pleading issues and considering Jones’s claims on
the merits, the officers were entitled to summary judgment because Jones did not provide
evidence of an Eighth Amendment violation. An Eighth Amendment claim against a prison
official must meet two requirements: (1) “the deprivation alleged must be, objectively, suf-
ficiently serious”; and (2) the “prison official must have a sufficiently culpable state of
mind.” Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). “In prison conditions cases, ‘that state of mind is one
of “deliberate indifference” to inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at
834). Jones did not provide evidence supporting either requirement.
On the serious-deprivation requirement, the Magistrate Judge noted that Jones failed
to support this allegation “with citations to any specific evidence or expert opinion.” J.A.
22. Without that authority, the court could only “speculate as [to] the nature and degree of
harm exposure to pornography might cause, and whether under the circumstances alleged,
deliberately exposing [Jones] to pornography subjected him to unreasonably harmful con-
ditions of confinement.” J.A. 22. On the state-of-mind requirement, the Magistrate Judge
determined that Jones did not establish that the officers “subjectively knew of the risk of
5
substantial harm to [Jones’s] mental health caused by sexual harassment in the form of
exposure to a pornographic video.” J.A. 23.
Jones’s complaint and summary judgment response show that the Magistrate Judge
was right on both counts. In the complaint, Jones alleges that “[s]everal times,” officers
“forced [Jones] to watch a pornographic DVD.” J.A. 32–33. Jones’s summary judgment
response is more detailed, but similarly bereft of evidence on the conditions-of-confine-
ment claim. As the Magistrate Judge rightly held, the evidence in the response, “while
certainly sufficient to establish that the alleged exposure to pornography served no peno-
logical interest, fails to raise a genuine issue of material fact as to either required element
of his claim.” J.A. 22. Thus, even crediting Jones’s summary judgment response as having
advanced his conditions-of-confinement claim, he still did not provide any evidence to
support it.
*****
In sum, Jones improperly raised his Eighth Amendment conditions-of-confinement
claim in his summary judgment response. And even if we consider this claim properly
pleaded, he did not support it with evidence—despite taking the officers’ depositions and
engaging in extensive discovery—so it fails. We will affirm the Magistrate Judge’s order
granting summary judgment for the officers.
6