Michael Bristol v. E. T. Settle

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2051
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MICHAEL BRISTOL,
Appellant
v.
CORRECTIONAL OFFICER E. T. SETTLE;
SECRETARY PA DEPT OF CORRECTIONS
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-09-cv-04155)
District Judge: Honorable Robert F. Kelly
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Submitted Under Third Circuit LAR 34.1(a)
January 10, 2012
Before: SCIRICA, RENDELL and SMITH, Circuit Judges
(Opinion Filed January 12, 2012)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
On April 2, 2009, five or six inmates at the Pennsylvania State Correctional
Institute at Graterford entered the cell of plaintiff-appellant Michael Bristol, who was
also an inmate there, called him a “child molester,” and punched and kicked him for
between 20 and 40 seconds. Bristol subsequently filed this case against Graterford
Correctional Officer E.T. Settle, asserting an Eighth Amendment failure-to-protect claim,
brought under 42 U.S.C. § 1983, and associated state-law claims, arising out of the April
2 attack.1 Bristol alleges that Officer Settle caused the attack by telling the other inmates
that Bristol’s cellmate was a child molester. He alleges, further, that, a week after the
beating, Officer Settle came to Bristol’s cell and informed him that the attack was
intended for his cellmate, who had been convicted of a sex offense or offenses involving
children.
Bristol appeals an order of the District Court granting summary judgment to
Officer Settle and dismissing all of Bristol’s claims. We have jurisdiction over this
appeal under 28 U.S.C. § 1291, and will affirm.
The District Court first found that the undisputed facts establish that Bristol failed
to exhaust administrative remedies, as required by the Prison Litigation Reform Act, 42
U.S.C. § 1997e, and Woodford v. Ngo, 548 U.S. 81, 93 (2006), before an inmate may
pursue a § 1983 claim concerning prison conditions. Specifically, evidence submitted by
Graterford’s Grievance Coordinator showed, and Bristol admitted, that Bristol never
submitted any grievance related to the April 2 attack. The District Court also considered
and rejected Bristol’s argument that he was denied access to the grievance process, noting
that, even accepting Bristol’s assertion that he did not learn about the grievance process
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Bristol also named Jeffrey Beard, Secretary of the Pennsylvania Department of
Corrections, as a defendant. The District Court dismissed Bristol’s claims against Beard,
and Bristol has not raised that dismissal as an issue on appeal. Bristol acknowledges that
this appeal pertains only to his claims against Officer Settle.
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until after the attack, when he was at a different facility, Bristol never attempted to file a
grievance or asked that his failure timely to file a grievance be excused.
On appeal, Bristol reasserts the argument that he should be excused from filing a
grievance in this case, without citing any supporting caselaw or facts that the District
Court failed to consider. Given the mandatory nature of the administrative exhaustion
requirement, see Jones v. Bock, 549 U.S. 199, 211 (2007), and Bristol’s failure to identify
any basis on which we could hold that the grievance process was unavailable in his case,
we agree with, and adopt, the District Court’s analysis and conclusion on this point.
The District Court also considered the merits of Bristol’s federal failure-to-protect
and state-law claims and held that he failed to present sufficient admissible evidence to
survive summary judgment. Bristol seeks to rely on his own assertion that Officer Settle
told other, unidentified inmates (presumably the same inmates who attacked Bristol, but
Bristol has not offered any evidence on that point) that Bristol’s cellmate was a child
molester. But Bristol acknowledged at his deposition that he was not present when those
remarks allegedly were made, and Officer Settle testified that he never called Bristol’s
cellmate a child molester. The District Court properly held that Bristol’s testimony about
what Officer Settle said to other, unidentified inmates outside of Bristol’s presence would
be inadmissible at trial and, therefore, does not create a genuine issue of material fact.
Bristol’s primary response on appeal is to suggest that the admissibility of
evidence at trial is irrelevant at the summary judgment stage, but Federal Rule of Civil
Procedure 56 plainly states otherwise. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or
declaration used to support or oppose a motion must . . . set out facts that would be
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admissible in evidence . . . .”); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that “it is not proper” to consider evidence that
would not be admissible at trial “on summary judgment”). Bristol also argues on appeal
that his testimony that, on April 9, a week after the attack, Officer Settle told him that the
attack was intended for his cellmate confirms that Officer Settle orchestrated the attack.
But Officer Settle’s after-the-fact statement about the attack does not, without more,
establish a genuine fact question as to whether, before the attack, Officer Settle knew of
and unreasonably disregarded a risk of harm, which Bristol would have to show to
survive summary judgment on his failure-to-protect claim. See Beers-Capitol v. Whetzel,
256 F.3d 120, 133 (3d Cir. 2001) (“To be liable on a deliberate indifference claim, a
defendant prison official must both know of and disregard an excessive risk to inmate
health or safety.” (internal quotation marks and alterations omitted)).
The District Court also held that Bristol had not adduced sufficient facts to
establish that Officer Settle’s actions caused his injuries. Even accepting as true Bristol’s
allegation that Officer Settle told other inmates that Bristol’s cellmate was a child
molester (which, for reasons described above, we cannot do), that does not establish
either a risk of harm to Bristol or that Officer Settle’s comments caused the attack.
Finally, the District Court observed that Bristol’s complaint did not contain any
specific state-law claims; it stated only that the Court had jurisdiction to “consider claims
arising under state law.” Nevertheless, it considered the possibility that Bristol may have
intended to allege state-law assault, battery, negligence, and gross negligence claims, and
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held that any such claims suffered from the same lack of evidence as Bristol’s failure-to-
protect claim. We agree.
Accordingly, and for essentially the reasons set forth in the District Court’s
opinion, we will affirm the judgment dismissing Bristol’s claims.
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