DLD-034                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-3212
                                  ___________

                       CHRISTOPHER WILLIAM REED,

                                              Appellant

                                        v.

 CRAIG HARPSTER, UNIT MANAGER; JEFFERY RACKOVAN, GRIEVANCE
 COORDINATOR; JAMES D. MORRIS, MAJOR; BRIAN THOMPSON, DEPUTY
   SUPERINTENDENT; FRANKLIN TENNIS, SUPERINTENDENT; DORINA
 VARNER, ACTING CHIEF HEARING OFFICER; ROBERT MARSH, DEPUTY
                        SUPERINTENDENT
               ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                         (D.C. Civil No. 3:09-cv-01618)
                  District Judge: Honorable A. Richard Caputo
                  ____________________________________

      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
                                November 8, 2012

           Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                       (Opinion filed: December 11, 2012)

                              _________________

                                  OPINION
                              _________________

PER CURIAM
       Christopher William Reed appeals pro se from the District Court’s orders

dismissing his complaint as to five of the seven defendants and granting the remaining

defendants’ motion for summary judgment. Because the appeal presents no substantial

question, we will summarily affirm the District Court’s orders.

                                            I.

       In August 2009, Reed, an inmate at the State Correctional Institution at Rockview,

Pennsylvania (“SCI-Rockview”), filed a civil rights complaint against seven officers of

the Pennsylvania Department of Corrections. In the complaint, as amended in January

2010, Reed claimed that Defendants Harpster and Thompson failed to protect him from

an attack by his cellmate, Michael LaCava. In particular, Reed claimed that: (1) Harpster

and Thompson knew of LaCava’s record of two prior assaults at other prisons; (2)

LaCava told Harpster that he intended to “lump up” Reed; and (3) LaCava sent a letter to

Thompson stating that a “danger does exist” in placing him in a double cell. Reed further

alleged that all defendants participated in a conspiracy to cover-up Harpster’s and

Thompson’s failure to protect Reed from attack. Harpster served an answer to Reed’s

complaint, and the other defendants filed a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). The District Court subsequently dismissed Reed’s conspiracy claim

as to all moving defendants, and dismissed Reed’s Eighth Amendment claim as to all

moving defendants except Thompson. The District Court then granted summary

judgment in favor of Harpster and Thompson on the ground that Reed failed to create a


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genuine dispute regarding whether the defendants knew of and disregarded an excessive

risk to Reed’s safety. Reed timely appealed.

                                              II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily

affirm a judgment of the District Court if the appeal does not raise a substantial question.

See I.O.P. 10.6.

       A. Dismissal of the claims against Defendants Rackovan, Morris, Varner, Marsh,
       Tennis, and Thompson

       Our review of a district court’s order granting a motion to dismiss for failure to

state a claim is plenary. Dique v. N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010). To

survive a motion to dismiss, a plaintiff must “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must

contain “factual content that allows the court to draw the reasonable inference that the

defendant[s are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 556).

       First, as the District Court noted, Reed’s conspiracy claims against defendants

Rackovan, Morris, Thompson, Varner, Marsh, and Tennis are not cognizable. In order

to sufficiently allege a claim of a civil rights conspiracy, the complaint must specifically

set forth: (1) the conduct that violated the plaintiff’s rights; (2) the time and the place of

the conduct; and (3) the identity of the officials responsible for the conduct. See Oatess

v. Sobolevitch, 914 F.2d 428, 431 n.8 (3d Cir. 1990) (citing Colburn v. Upper Darby

                                               3
Twp., 838 F.2d 663, 666 (3d Cir. 1988)). Furthermore, the allegations of conspiracy

must be grounded firmly in facts; they cannot be conclusory nor can they hinge on bare

suspicions and foundationless speculation. See Young v. Kann, 926 F.2d 1396, 1405

n.16 (3d Cir. 1991) (affirming dismissal of conspiracy claims based upon mere suspicion

and speculation). Here, Reed made a foundationless allegation of conspiracy without

setting forth any facts regarding the conduct, time, or place which constituted the

conspiracy. Therefore, Reed’s conspiracy claim did not satisfy the pleading requirements

and was properly dismissed. 1

       Second, the District Court correctly dismissed Reed’s Eighth Amendment claim

against defendants Rackovan, Morris, Varner, Marsh, and Tennis. “An individual

government defendant in a civil rights action must have personal involvement in the

alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat

superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)) (internal brackets omitted). We agree

with the District Court that Reed failed to put forth any facts suggesting that these

defendants participated in the allegedly unconstitutional decision to place Reed in a cell

with a dangerous cellmate. They therefore cannot be held liable based only on the fact of

their employment at SCI-Rockview.




1
 To the extent the District Court did not dispose of Reed’s conspiracy claim against
Harpster, we note that this claim is also conclusory, and we deem it properly dismissed.
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       B. Grant of summary judgment in favor of Harpster and Thompson

       Our review of a district court’s order granting summary judgment is plenary.

Kreimer v. Bureau of Police, 958 F.2d 1242, 1250 (3d Cir. 1992). Summary judgment

may be granted only where “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       To establish an Eighth Amendment claim for failure to protect, a plaintiff must

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

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

safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference may be

proven by showing that “the official knows of and disregards an excessive risk to inmate

health or safety.” Id. at 837. Not only must a prison official be “aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists,” but the

official “must also draw the inference.” Id. Here, the only evidence Reed proffered to

show that Thompson was aware of a substantial risk from LaCava is a letter LaCava

wrote to Thompson in early July 2008 requesting placement in a single cell. In that letter,

LaCava states generally that “danger does exist” in placing him in a double cell. While

this may suggest some risk, LaCava also states that he is “not a . . . predator . . . [or]

troublemaker . . . [, n]or do I have a assaultive history— I choose to conduct myself with

dignity, respect and class at all times.” He also explains that he will not refuse another

order to be housed in a double cell. Although LaCava had previously expressed his

desire to be housed alone, he had not previously engaged in violence at SCI Rockview,
                                               5
and his prison record of misconduct contains only two prior acts of violence elsewhere—

one in 2001 and the other in 2006, 19 months before his assault on Reed. Reed offered

only his belief, and no admissible evidence, to support his claim that Harpster was ever

made aware of LaCava’s intent to hurt his cell mate. We agree with the District Court’s

conclusion that the evidence in the record is insufficient to raise a genuine issue of

material fact that either Thompson or Harpster knew of a substantial risk to Reed’s safety

and acted with deliberate indifference to that risk.

       Accordingly, this appeal presents us with no substantial question, and we will

summarily affirm the District Court’s order. See 3rd Cir. LAR 27.4 and I.O.P. 10.6.




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