                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

Dancy v. Collier
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4329




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Recommended Citation
"Dancy v. Collier" (2008). 2008 Decisions. Paper 1564.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1564


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ALD-131                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 07-4329
                                  ___________

                               LARRY DANCY,

                                        Appellant

                                         v.

                MR. COLLIER; MR. DIVERSE; MR. SNYDER;
                MR. NOON; MR. TRGOVAC; MR. WILLISON;
                      MR. SMITH; MR. MATTHEWS
                 ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 06-cv-02301)
                   District Judge: Honorable Edwin M. Kosik
                  ____________________________________

      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
                                February 14, 2008

          Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges.

                             Filed: February 20, 2008
                                    _________

                                   OPINION
                                   _________
PER CURIAM

       Larry Dancy, a federal prisoner, brought suit against prison officials and

employees relating to an assault he suffered at the hands of another inmate. He claimed

that after he filed a race discrimination claim with the Justice Department against some

Defendants, other Defendants leaked confidential information from his case. He

contended that in response to hearing the leaked information, another inmate stabbed him.

He also alleged that Defendants denied him medical treatment for the stab wound and

hindered his attempts to grieve his complaints. As the parties are familiar with the facts,

we will refer to other details only as they become relevant.

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

judgment. Dancy filed a motion for appointment of counsel, then he submitted a response

to Defendants’ motion. The District Court denied Dancy’s counsel motion without

prejudice to its renewal in the event that any of his claims went to trial. Then, the District

Court treated Defendants’ motion as a motion for summary judgment and granted it.1

Dancy appeals and moves for appointment of counsel.

       We will summarily affirm the District Court because no substantial issue is

presented on appeal. See L.A.R. 27.4; I.O.P. 10.6. Because we conclude that Dancy’s




       1
       The District Court properly concluded that Dancy, who had captioned his
response a response to a “motion for summary judgment,” had notice of the nature of
Defendants’ motion from its title.

                                              2
appeal is not meritorious, we deny his motion for appointment of counsel. See Tabron v.

Grace, 6 F.3d 147 (3d Cir. 1993).

       The District Court did not abuse its discretion in denying Dancy’s motion for

appointment of counsel. The District Court identified the appropriate considerations and

did not err in concluding that it was not necessary to appoint counsel. See Tabron, 6 F.3d

at 155-58.

       The District Court properly granted summary judgment in favor of Defendants on

Dancy’s claim that Defendants did not provide him with appropriate and timely medical

care for his stab wound because Dancy failed to exhaust his administrative remedies for

this claim. A prisoner who challenges prison conditions must exhaust available

administrative remedies before filing suit in federal court. See 42 U.S.C. § 1997e;

Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006); Booth v. Churner, 532 U.S. 731, 739

(2001). However, although Dancy has sought relief through administrative remedies 35

times in prison, he did not follow the procedures set forth at 28 C.F.R. § 542 et seq. to

raise his claim of a lack of medical care following his stabbing. Dancy contended that

Defendant Synder’s referral of an appeal of a decision denying a different grievance to

the Bureau of Prisons (“BOP”) Regional Office interfered with his ability to seek

administrative relief for his medical care claim, but we do not agree. The referral of an




                                              3
unrelated appeal to the Regional Office 2 could not have affected the available remedy for

his medical care claim.

       Furthermore, the District Court properly granted summary judgment in favor of

five Defendants (Marie Trgovac, Timothy Noone, James Collier, Troy Williamson, and

Joseph Smith) 3 for lack of personal involvement. Dancy makes no claims against

Defendants Trgovac, Noone, and Collier in his complaint; he merely mentions that he

filed his Justice Department complaint against them. In response to their declarations

denying involvement in the other acts Dancy alleged, Dancy did not otherwise implicate

them. As for Defendants Williamson and Smith, Dancy explicitly sought to impose

liability on them on a respondent-superior theory, which cannot be done in this Bivens4

action. See, e.g., Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (citing cases).

       The District Court also properly granted the remaining Defendants’ (Richard

Divers’s and Todd Matthews’s) request for summary judgment on the basis of qualified

immunity. Qualified immunity shields government officials from liability for civil

damages “insofar as their conduct does not violate clearly established statutory or



       2
       As the District Court explained, the referral was reasonable under the
circumstances.
       3
        Here and elsewhere, we substitute correct spellings for the spellings in the
caption.
       4
        Dancy proceeds under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), the federal counterpart to § 1983 claims against state
actors. See Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004).

                                              4
constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The inquiry into the applicability of qualified

immunity is twofold: (1) whether the plaintiff demonstrated the deprivation of a

constitutional right, and (2) whether that right was established at the time of the alleged

deprivation. Saucier v. Katz, 533 U.S. 194, 201 (2001). As the District Court concluded,

Dancy did not show the deprivation of a constitutional right.

       Dancy claimed that Defendant Matthews provided Divers with information from

an affidavit he submitted in the investigation of his race discrimination claim. He alleged

that Divers then retaliated for the filing of the claim by revealing to an inmate named

Haynes that Dancy had mentioned his name and caused him to be transferred to an

undesirable prison program. Dancy contended that he was stabbed by another inmate

(who remains unnamed) as a result.

       Defendants presented evidence that Matthews was the only officer involved in the

investigation and that he did not reveal the contents of Dancy’s affidavit to Divers or

others. Divers averred that he did not even know about the investigation until months

after the stabbing occurred. Dancy did not respond with evidence to put Defendants’

declarations in controversy. As the District Court noted, Dancy did not even explain the




                                              5
basis for his belief that Matthews leaked information to Divers or that Divers passed

along information to Haynes.5

       In sum, the District Court properly denied Dancy’s motion for appointment of

counsel and granted Defendants’ motion for summary judgment. Accordingly, we affirm

the District Court’s judgment. Also, we deny Dancy’s motion for appointment of

counsel.




       5
        Also, the internal investigation of the stabbing paints a very a different story of
the cause of the altercation that led to the stabbing, namely that Dancy instigated a fight
with another inmate.

                                              6
