Welch v. PA Dept Corr , 269 F. App'x 223 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-18-2008
Welch v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1881
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1881
CHRISTOPHER M. WELCH,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
SUPERINTENDENT PIAZZA; DEPUTY KERESTES;
DEPUTY VARANO; MAJOR MACKANNEY;
CAPTAIN MILLER; LT. GOOLER;
LT. KELLER; SGT. GREENE;
C/O BIGLER; UNIT MANAGER SMITH;
C.S.A. K. DASCANI
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 06-cv-00923)
District Judge: Honorable James M. Munley
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 18, 2008
Before: AMBRO, FUENTES and FISHER, Circuit Judges
(Opinion filed: March 18, 2008)
OPINION
PER CURIAM
Christopher M. Welch appeals from the order of the United States District Court
for the Middle District of Pennsylvania granting summary judgment in favor of the
defendants. We will affirm.
The facts are well-known to the parties and are recounted in detail in the District
Court’s memorandum, so we will summarize them only briefly. Welch filed a pro se
civil rights complaint regarding events during his incarceration at the State Correctional
Institution at Coal Township (Pennsylvania). As defendants, Welch named the
Pennsylvania Department of Corrections and several prison officials and employees. He
alleged that, despite several warnings and grievances to prison staff that he was being
threatened by staff members and by his cellmate, the defendants failed to protect him
from being physically attacked, in violation of the Eighth Amendment prohibition against
cruel and unusual punishment. Welch sought declaratory, injunctive, and damages relief
on his Eighth Amendment claim.1
The defendants filed a motion to dismiss or in the alternative for summary
judgment, along with a brief and supporting exhibits. Welch filed a brief in opposition to
the motion, with a supporting affidavit. The defendants filed a reply. The District Court
deemed the defendants’ motion as a motion for summary judgment and directed the
parties to submit additional documentation in support of their positions. Welch submitted
1
Welch was released from prison during the proceedings. Thus, by order entered
September 15, 2006, the District Court denied as moot Welch’s request for a preliminary
injunction.
2
a reply and another supporting affidavit. The District Court granted the defendants’
motion and entered judgment in favor of the defendants. First, the District Court
concluded that Welch failed to exhaust his administrative remedies, as required by
42 U.S.C. § 1997e(a), concerning the incident with his cellmate. Thus, the District Court
excluded those allegations from consideration. Second, regarding the allegations that
were the subject of three other grievances that Welch pursued, the District Court
concluded the claims were administratively exhausted but the defendants were entitled to
summary judgment. The District Court noted that Welch failed to produce evidence of a
substantial risk of serious harm and that the defendants acted with deliberate indifference
to such a risk.
Welch appeals. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We
exercise plenary review over a District Court’s grant of summary judgment and apply the
same test applied by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d
Cir. 2001). Summary judgment is proper when, viewing the evidence in the light most
favorable to the nonmovant, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Id. at 232; Fed. R. Civ. P. 56(c). The
party opposing summary judgment “may not rest upon the mere allegations or denials of
the . . . pleading”; the party’s response, “by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial.” Saldana,
260 F.3d at 232 (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)). We will view the facts in the light most favorable to the
3
nonmoving party and we will draw all inferences in that party’s favor. See Reitz v.
County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997).
Welch filed four grievances that are relevant to this matter. In grievance #130430,
Welch alleged that Lt. Vandine threatened to transfer Welch “all beat-up” to a prison in
western Pennsylvania because he was staring at Sgt. Kilmer’s wife. After investigation,
the grievance officer determined that there was no evidence that Lt. Vandine threatened
Welch. Welch’s appeals were unsuccessful. In grievance #132303, Welch repeated some
of the allegations in the previous grievance and also alleged that unnamed guards
threatened and harassed him because of his litigation activities. He indicated that he was
offered “self-lockup” (i.e., protective custody), but he declined because he did not want to
disrupt his programming and schedule. Several weeks later, Welch filed grievance
#133376, alleging that he had been beaten by an unnamed inmate on October 16, 2005,
and repeating allegations of threats by staff and fear of being assaulted. Grievances
#132303 and #133376 were denied because they did not contain specific information
concerning the identities of the prison staff members who threatened Welch or the nature
of those threats. Lastly, Welch filed grievance #137443, again alleging that unnamed
guards threatened him. Welch further alleged that he had enemies in several identified
areas of the prison. This grievance was denied. In appealing that decision, Welch stated
that he was involved in an altercation with his cellmate on December 1, 2005, the same
day he filed the grievance. The appeal was denied, and no further institutional appeals
were taken.
4
Upon review of the documents in the record, we conclude that the District Court
correctly granted summary judgment. At issue is whether the defendants knew of and
disregarded a substantial risk of serious harm to Welch. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). Aside from naming Lt. Vandine in one of his grievances, Welch never
provided prison officials with any specific information regarding which inmates or staff
members were threatening him; Welch does not allege that Lt. Vandine assaulted him or
caused any of the alleged assaults. With no specifics alleged in his grievances, Welch did
not show that a substantial risk of serious harm existed. Furthermore, the record shows
that Welch refused the prison staff’s offer of protective custody; even if it could be said
that the defendants actually knew of a substantial risk of serious harm to Welch, the offer
of protective custody tends to refute a claim that prison staff acted with deliberate
indifference to any such risk. In addition, the defendants submitted documentation to
show that Welch did not fully exhaust grievance #137443, and Welch did not offer any
argument or documentation to the contrary during the District Court proceedings. Thus,
we agree with the District Court’s conclusion that, to the extent that Welch sought redress
on the basis of this grievance, it was unexhausted under 42 U.S.C. § 1997e and was not
properly before the court.2
In opposing the defendants’ summary judgment motion, Welch submitted
2
Welch notes on page 3 of his brief that he “appealed the grievance to the highest
level with no success,” but he points to nothing in the record to show that the District
Court erred in finding to the contrary.
5
affidavits to indicate the existence of factual dispute in how the incidents on October 16,
2005 and December 1, 2005 occurred. Welch attaches the affidavits to his brief and
argues that the District Court should have denied summary judgment due to the disputed
facts.3 However, regardless of how the incidents occurred, there is no “genuine issue of
any material fact” relevant to the issue of whether the defendants knew of and disregarded
a substantial risk of serious harm to Welch.
Welch also argues that the District Court erred in denying his motion for
appointment of counsel.4 In support, Welch argues that the motion had merit and that
appointment of counsel was necessary in light of his acute psychiatric disorder. Informal
Br. at 4. We note that his counsel motion contained no allegation that he suffered from a
psychiatric disorder, and we discern no error in the District Court’s application of the
applicable factors in denying Welch’s counsel motion. See Tabron v. Grace, 6 F.3d 147,
155-56 (3d Cir. 1993).
For the foregoing reasons, we will affirm the judgment of the District Court.
3
Welch argues that the District Court erred in granting summary judgment
without allowing him more opportunity to present evidence. However, the District Court
docket entries reflect that Welch filed a brief in opposition to the defendants’ motion,
after which the District Court deemed the motion as a motion for summary judgment and
expressly allowed Welch additional time to submit further argument and documentation.
The record shows that Welch availed himself of that opportunity, and his documents
were duly considered.
4
We note that Welch filed a motion for appointment of counsel on appeal, which
this Court denied on July 26, 2007.
6