DLD-217                                                        NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2048
                                      ___________

                                    DEVON KNOX,
                                          Appellant

                                            v.

        JOHN DOE, Warden/Superintendent; JOHN DOE, Security Captain;
     JOHN DOE, Unit Manager; JOHN DOE, C/O's Guards; BRITTON, Lieutenant
                  ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3-11-cv-00135)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

              Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                              (Opinion filed: July 12, 2012)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

       Devon Knox, an inmate at the Pennsylvania State Correctional facility at Dallas,

appeals pro se and in forma pauperis from the District Court’s dismissal of his complaint.

For the reasons that follow, we will summarily affirm the District Court’s order.
                                             I.

       In June 2011, Knox commenced a civil rights action under 42 U.S.C. § 1983

alleging that several unnamed prison employees acted with deliberate indifference

towards his safety in violation of his Eighth Amendment rights. After Knox received

permission to proceed in forma pauperis, the Magistrate Judge recommended that the

complaint be dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B),

but granted Knox leave to amend the complaint. Knox filed an amended complaint that

was subsequently dismissed by the District Court for failure to state a claim. The District

Court denied Knox’s motion for reconsideration on March 27, 2012. Knox timely filed a

notice of appeal on April 11, 2012.

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm the

District Court’s judgment if the appeal presents no substantial question. See 3d Cir. LAR

27.4 and I.O.P. 10.6. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must

contain a “short and plain statement of the claim showing that the pleader is entitled to

relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This pleading standard “does

not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or

‘a formulaic recitation of the elements of a cause of action will not do.’” Id. “[A]
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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. (citing Twombly, 550 U.S. at 570).

       Under the Eighth Amendment, prison officials “must take reasonable measures to

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(internal quotation and citation omitted). Accordingly, “prison officials have a duty to

protect prisoners from violence at the hands of other prisoners.” Id. at 833 (citation

omitted). To establish an Eighth Amendment failure to protect claim, a plaintiff must

show that: (1) he is “incarcerated under conditions posing a substantial risk of serious

harm” and (2) prison officials acted with “deliberate indifference to [his] health or

safety.” Id. at 834. Deliberate indifference is proven by showing that a prison official

“knows of and disregards an excessive risk to inmate health or safety.” Id. at 837.

“[D]eliberate indifference describes a state of mind more blameworthy than negligence.”

Id. at 835. Further, “a corrections officer’s failure to intervene in a beating can be the

basis of liability for an Eighth Amendment violation under § 1983 if the corrections

officer had a reasonable opportunity to intervene and simply refused to do so.” Smith v.

Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). “However, an officer is only liable if there

is a realistic and reasonable opportunity to intervene.” Id. at 651.

       Knox alleged that he sent a request slip to a prison official in April 2009 stating

that “someone in the jail” was going to hurt him. (Dkt. No. 1, ¶ 9.) Knox claimed that,

in July 2009, he was attacked with a baseball bat by another inmate in the prison yard and
                                              3
suffered severe head injuries. According to Knox, the attack occurred in the south prison

yard after all the guards from the south yard left to attend to a disturbance in the north

yard, leaving the south yard without any surveillance. He also alleged that all baseball

bats were supposed to be chained and locked up in the yard. Finally, Knox alleged that,

in March 2011, an officer told him “that he seen the video tape … and inmate John Doe

singled out the Plaintiff, and struck him with a baseball bat as the officers watched … .”

(Dkt. No. 1, ¶ 19.)

       Knox claimed that several unnamed prison employees acted with deliberate

indifference by failing to prevent the attack and by failing to intervene during the attack.

With respect to failing to prevent the attack, Knox’s complaint does not contain sufficient

factual matter to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at

678. The facts, as alleged, fail to support a claim that the prison employees were aware

of and disregarded any specific threat of harm prior to the attack. 1 Knox’s complaint is

only three-and-a-half pages long, and his “application to amend” adds another two-and-a-

half pages. His allegations indicate that he warned prison officials of “threats” to his

safety in only vague and speculative terms. He claims he sent a “request slip” to prison

officials in April 2009 that stated: “I feel it is now best you place me in protected

       1
         Assuming that there is an official policy to have all baseball bats chained and
locked up in the yard, the alleged failure to do so is, at most, negligent, especially without
any allegations that there were prior baseball bat attacks at the prison. Deliberate
indifference requires “a state of mind more blameworthy than negligence.” Farmer, 511
U.S. at 835.
                                               4
custody due to the serious nature of threats on my life.” (Dkt. No. 9, ¶¶ 27-32.). He also

says that between April 2009 and July 2009 he wrote another request slip to the prison’s

superintendent “stating that I was in danger and would feel safer if I could move to CB

with my cousin.” (Dkt. No. 1, ¶ 12.). The “request slips” are two conclusory statements

with no underlying facts. No evidence exists that Knox told prison officials which other

prisoners were making the threats or why they were doing so. Prison officials could not

have been deliberately indifferent in the absence of facts indicating a substantial risk of

harm to Knox. See id. at 837 (prison officials must be “aware of facts from which the

inference could be drawn that a substantial risk of harm exists” and “must also draw the

inference”).

       Nor does Knox’s complaint contain sufficient factual matter to state a claim for

relief that is plausible on its face with respect to the prison employees’ failure to

intervene. Iqbal, 556 U.S. at 678. The facts alleged indicate that the prison guards were

not present during the attack, having left to attend to a different part of the yard, and

therefore they could not have intervened. And, even if the prison guards were present

during the attack, no facts indicate that they had a “realistic and reasonable opportunity to

intervene.” Mensinger, 293 F.3d at 650. Knox alleged that, two years after the incident,

another officer said that a video showed unidentified officers were present during the

attack. “The plausibility standard … asks for more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Knox has not pleaded factual
                                               5
content that would allow “the court to draw the reasonable inference” that the defendants

are liable for failure to intervene. Id.

                                            III.

       The District Court properly denied Knox’s motion for reconsideration and

dismissed his amended complaint for failure to state a claim. We will summarily affirm

the order of the District Court because no substantial question is presented by this appeal.

3d Cir. LAR 27.4 and I.O.P. 10.6.




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