CLD-284                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-1825
                                      ___________

                                     JEREMY NED,
                                              Appellant

                                             v.

     J. KARDIN, Asst. Warden; S. ECKENRODE, Officer; J. MILLER, Lieutenant
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3-16-cv-00251)
                       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
                                 September 19, 2019

            Before: CHAGARES, RESTREPO and SCIRICA, Circuit Judges

                            (Opinion filed: October 11, 2019)


                                        _________

                                        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 Jeremy Ned appeals the District Court’s order granting summary

judgment to the defendants. For the reasons set forth below, we will summarily affirm

the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       At the time at issue in this case, Ned was a prisoner confined at FCI Loretto. In

his complaint, he alleged that, on September 10, 2014, he told Officer S. Eckenrode that

his cellmate was trying to sexually assault him and that he needed to be moved to a

different cell. He claimed that the next day, he made the same report to Lieutenant J.

Miller and Assistant Warden J. Randin. However, none of the three prison employees

took any action, and early in the morning on September 12, 2014, his cellmate attacked

him. In his complaint, Ned alleged that these three individuals failed to protect him in

violation of his rights under the Eighth Amendment.

       The defendants filed a motion to dismiss or, in the alternative, for summary

judgment. ECF No. 30. Ned filed a cross-motion for summary judgment and a brief in

response to the defendants’ motion. ECF Nos. 33–34. Critically, in his brief, Ned

drastically changed his allegations. He expressly denied ever telling the defendants

“anything about sexual assault” or “that he had been threatened,” now claiming that he

had told the defendants only that he and his cellmate “were not getting along and I’d like




                                             2
to be moved.” ECF No. 34 at 4–5.1 Adopting a Magistrate Judge’s report and

recommendation, the District Court granted summary judgment to the defendants. The

Court observed that, because Ned had abandoned his allegation that he had told the

officers he had been threatened with sexual assault, “the only evidence before the fact [of

the attack] . . . is that there was a claim that two cellmates were not getting along.” ECF

No. 39 at 2. This, the Court concluded, was “insufficient to show genuine disputes of

fact that a substantial risk of serious harm existed or that any defendant drew the

inference that such a risk existed.” Id. Ned filed a timely notice of appeal, and has filed

a motion for appointment of counsel in this Court.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of

summary judgment de novo, applying the same standard as the District Court. See Blunt

v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is

proper if, viewing the record in the light most favorable to Ned, there is no genuine issue

of material fact and the defendants are entitled to judgment as a matter of law. See

Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002).

       We agree with the District Court’s analysis of this case. At the outset, both parties

requested summary judgment, so it was permissible for the District Court to resolve the

case under that standard (as opposed to the motion-to-dismiss standard). See Hilfirty v.

Shipman, 91 F.3d 573, 578–79 (3d Cir. 1996). The District Court was also entitled to


1
 This is the same way that Ned described his report to officers in his administrative
proceedings. See ECF No. 34-2 at 2.
                                           3
credit the version of events that Ned stated in his brief rather than his complaint. See

Windham v. Harris Cty., 875 F.3d 229, 233 n.3 (5th Cir. 2017) (“Admissions in the brief

of the party opposing the motion for summary judgment may be used in determining that

there is no genuine dispute as to any material fact.” (alterations omitted) (quoting 10A

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2723 (4th ed.

updated Apr. 2017)); Woods v. City of Chi., 234 F.3d 979, 989 (7th Cir. 2000).

       Under these circumstances, the District Court correctly held that the defendants

were entitled to summary judgment. A prison official cannot be found liable under the

Eighth Amendment for failing to protect a prisoner “unless 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 v. Brennan, 511 U.S. 825, 837

(1994).

       Here, Ned merely told the prison officials that he was not getting along with his

cellmate and asked to be moved. This is the type of “out-of-the-blue and unadorned

‘I’m-in-trouble’ entreaty” that this Court has deemed inadequate to sustain an Eighth

Amendment claim. Bistrian v. Levi, 696 F.3d 352, 369–70 (3d Cir. 2012); see also

Butera v. Cottey, 285 F.3d 601, 606 (7th Cir. 2002) (ruling that a prisoner’s report to jail

personnel that he was “having problems in the block” and “needed to be removed” was




                                              4
insufficient to establish deliberate indifference (alteration omitted)).2 The District Court

therefore did not err in granting summary judgment to the defendants.3

       Accordingly, we will summarily affirm the District Court’s judgment. Ned’s

motion for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155 (3d

Cir. 1993).




2
  Ned also stated in his brief that his cellmate had a “history of not getting along with
other inmates and assault,” ECF No. 34 at 2, but he failed to elaborate that allegation in
any meaningful way. See generally Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir.
2018) (explaining that conclusory statements are insufficient to withstand summary
judgment).
3
 In his complaint, Ned also raised a claim under 42 U.S.C. § 1985, but in response to the
defendants’ motion for summary judgment, he failed altogether to show any conspiracy
between the defendants. See generally Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).
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