                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 14-6300


RICHARD E. KARTMAN,

                 Plaintiff – Appellant,

          v.

SHANNON MARKLE; OFFICER STANCOTI; OFFICER SKIDMORE,

                 Defendants – Appellees,

          and

OFFICER LONG; JOHN DOE MEDICAL EMPLOYEE,

                 Defendants.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:10-cv-00106-FPS-JES)


Submitted:   August 14, 2014                  Decided:     August 22, 2014


Before DUNCAN    and   FLOYD,    Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Richard E. Kartman, Appellant Pro Se. Thomas E. Buck, BAILEY &
WYANT, PLLC, Wheeling, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Richard E. Kartman appeals from the district court’s

orders    granting      summary     judgment        to   Defendants        and    denying

Kartman’s     motion     for    reconsideration          in    Kartman’s     42     U.S.C.

§ 1983 (2012) proceeding.           On appeal, Kartman pursues his claims

against Officer Skidmore, Officer Stancoti, and Shannon Markle,

contending that these Defendants were deliberately indifferent

to a threat to his physical safety by other inmates.                                 As a

result, Kartman avers that he was assaulted twice (on October 2

& November 5, 2008).             He further claims that Officer Stancoti

failed to appropriately intervene on both occasions.

              The    district      court       granted        summary      judgment     to

Skidmore      and    Stancoti,     finding      that     they      were    entitled     to

qualified immunity as Kartman failed to allege that they were

aware of a substantial risk of harm and disregarded it.                                 The

court also ruled that Stancoti responded appropriately to both

assaults.          Subsequently,    the    district        court     granted      summary

judgment to Markle, ruling that, even assuming that Kartman sent

Markle   grievances       and    letters       as   he     alleged,       there   was   no

evidence that Markle ever received them.                       As such, he was not

aware    of    a    substantial     risk   of       harm      to   Kartman    and     was,

accordingly, entitled to qualified immunity




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                                              I.

              “This      [c]ourt      reviews      a    district            court’s    grant    of

summary judgment de novo, applying the same legal standards as

the district court” and viewing the evidence in the light most

favorable to the nonmoving party.                           Martin v. Lloyd, 700 F.3d

132,   135    (4th      Cir.     2012).       The       district           court    shall    grant

summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment      as    a    matter       of   law.         “Conclusory            or    speculative

allegations        do    not     suffice,     nor       does       a       mere    scintilla    of

evidence      in        support       of    [the        nonmoving            party’s]        case.”

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002) (internal quotation marks omitted).                                  “Where the record

taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (internal quotation marks omitted).

              The       Eighth       Amendment      imposes            a     duty     on     prison

officials to “protect prisoners from violence at the hands of

other prisoners.”           Farmer v. Brennan, 511 U.S. 825, 833 (1994)

(internal     quotation          marks     omitted).          To       obtain       relief   under

§ 1983   on    a    claim      for    failure      to    protect           from     violence,   an

inmate     must     show:       (1)    “serious        or    significant            physical    or

emotional      injury”         resulting     from       that       failure,         De’Lonta    v.

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Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation

marks    omitted);    and   (2)    that        the   prison       officials       had   a

“sufficiently culpable state of mind,” which in this context is

deliberate     indifference.       Farmer,       511      U.S.    at   834    (internal

quotation marks omitted).           A prison official “is deliberately

indifferent to a substantial risk of harm to a [prisoner] when

that [official] ‘knows of and disregards’ the risk.”                         Parrish ex

rel.    Lee   v.   Cleveland,     372   F.3d     294,      302    (4th     Cir.    2004)

(quoting Farmer, 511 U.S. at 837).

              It is not enough to prove that the official should

have known of the risk; instead, “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,     511       U.S.   at    837.        A   showing      of

negligence on the part of prison officials does not rise to the

level of deliberate indifference.               Davidson v. Cannon, 474 U.S.

344, 347-48 (1986); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

1999).    As the Supreme Court explained, “an official’s failure

to alleviate a significant risk that he should have perceived

but did not, while no cause for commendation, cannot under our

cases be condemned as the infliction of punishment.”                            Farmer,

511 U.S. at 838.




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                                           II.

            Aside     from      general    allegations         that    all       the    prison

officials should have been aware of the threat against him based

on his numerous statements to other prison officials, Kartman

did not aver that he informed Stancoti of a substantial risk of

harm prior to the first altercation.                   Thus, the only allegations

against Stancoti with regard to the first assault are that he

watched from the tower while Kartman and another inmate engaged

in   a   verbal     altercation,        observed       the     other       inmate       pacing

outside    Kartman’s      cell    for     twenty      minutes,      and    then,       when   a

physical attack ensued, failed to respond more quickly than he

did.       However,       the    fact     that     Stancoti         watched       a     verbal

altercation followed by prolonged pacing is far from sufficient

to show that he knew that Kartman was in danger of substantial

harm.       Moreover,        Stancoti’s         report       states       that     he    took

appropriate action, and Kartman’s contrary allegations are based

on pure speculation.            As there was no material issue of disputed

fact, the district court correctly granted summary judgment to

Stancoti with regard to the October incident.

            Turning to the November altercation, Kartman alleges

that     Stancoti     stood,      smiled,       and    watched        as     Kartman      was

assaulted    by     two   inmates,        “knocked      to    the     ground      extremely

hard,” pummeled, kicked and punched.                     Stancoti stood watching

“for what seemed like a long time.”                   Subsequently, when Stancoti

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was taking Kartman to medical, Stancoti stated that he wanted

“to see how [Kartman] could fight.”                      There is no affidavit,

report,     or    testimony      from    Stancoti       regarding       the      November

incident.

             The district court did not specifically address this

claim.      Instead, the district court noted that Stancoti did not

know the other inmates were going to attack Kartman prior to

either    assault     and    Stancoti      appropriately        responded        to   the

October     fight.        The    court    makes    no     mention       of    Stancoti’s

response     to     the   second      incident     once    it     began.          Because

Kartman’s verified complaint provides undisputed evidence that

Stancoti     watched      Kartman       being     assaulted       and        unreasonably

delayed breaking up the fight, summary judgment was improperly

granted on this claim.               See Smith v. Mensinger, 293 F.3d 641,

650   (3d    Cir.    2002)      (finding    that    “a     corrections         officer’s

failure to intervene in a beating can be the basis of liability

. . . if the corrections officer had a reasonable opportunity to

intervene and simply refused to do so”); Robinson v. Prunty, 249

F.3d 862, 867 (9th Cir. 2001) (holding no qualified immunity

where    guards     failed      to   intervene     while    one     inmate      attacked

another).        Accordingly, we vacate this portion of the district

court’s orders and remand for further proceedings.




                                           7
                                          III.

            Kartman testified in his deposition that he repeatedly

informed Markle, the Administrator of the Central Regional Jail,

in grievances and letters delivered by varying methods, that he

faced a substantial risk of harm from other inmates.                            Markle

testified that he never received any of these grievances and,

therefore,       had   no     knowledge       of    Kartman’s      situation.        The

district court assumed that Kartman filed the grievances and

letters as he claimed.           However, the court concluded that there

was no evidence that Markle actually received them or had any

knowledge of Kartman’s issues, based on Markle’s testimony and

the fact that Markle was not responsible for making prisoner’s

housing decisions and would not have been the person to respond

to these grievances.

            We     conclude      that     material        issues    of   fact    exist

preventing summary judgment on this claim.                         Markle testified

that requests to be moved would be placed in his mailbox so long

as they were addressed to him and would not be diverted to a

supervisor or guard.           While Markle stated that he would likely

refer the request to a supervisor or the booking department,

such   a   referral     would       require      Markle   to    initially   read     and

screen the request or grievance.                    Moreover, the record showed

that   grievances      must    be    filed       with   the    Administrator    of   the

Jail; filing grievances with officers or supervisors would be

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insufficient to exhaust.         Finally, Kartman submitted a grievance

response from the Director of Inmate Services, which could be

interpreted    as    stating     that       Markle        had    received      Kartman’s

grievances filed following the October assault.

            Based on the foregoing, and contrary to the district

court’s    ruling,     we    find     that        Kartman       provided      sufficient

evidence to raise a material issue of fact as to whether he

filed the disputed grievances and letters and, if so, whether

Markle    either    received   them     or       was   willfully      blind    to    their

existence.    See Bowen V. Manchester, 966 F.2d 13, 17 (1st Cir.

1992) (finding deliberate indifference could be shown by actual

knowledge or willful blindness of serious risk).                         The district

court ruled that a reasonable person in Markle’s position in

possession    of    the     incident    reports           of    the   October       fight,

Kartman’s November grievances, and Kartman’s letter would have

known of an excessive risk of harm to Kartman and would have

taken    action.     Because    it     is       unclear    whether    Markle     was    in

possession of or was aware of these documents, we vacate the

district court’s order granting summary judgment and remand for

further proceedings.

                                        IV.

            We have reviewed the record and the parties’ arguments

on appeal regarding the claims against Skidmore, and we find

that the district court correctly determined that Skidmore was

                                            9
entitled   to   qualified     immunity.     Accordingly,      we    affirm   the

portion of the district court’s order granting summary judgment

in favor of Skidmore for the reasons stated by the district

court.     Kartman v. Markle, No. 5:10-cv-00106-FPS-JES (N.D. W.

Va. Mar. 3, 2012).       The remainder of the district court’s orders

are vacated and remanded for further proceedings consistent with

this opinion.      We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the    court   and   argument    would   not   aid   the   decisional

process.

                                                        AFFIRMED IN PART;
                                             VACATED AND REMANDED IN PART




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