                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2007

Goode v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1374




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Recommended Citation
"Goode v. Nash" (2007). 2007 Decisions. Paper 712.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/712


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DLD-292                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 07-1374
                                 ________________

                                 RONALD GOODE,

                                           Appellant

                                           v.

                              JOHN NASH, Warden
                     ____________________________________

                   On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 04-CV-01781)
                   District Judge: Honorable Christopher C. Conner
                     ____________________________________

                           Submitted For Possible Dismissal
                           Under 28 U.S.C. § 1915(e)(2)(B)
                                    June 28, 2007

               Before: BARRY, AMBRO and FISHER, Circuit Judges.

                                (Filed: July 20, 2007)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Ronald Goode appeals from an order of the United States District Court for the

Middle District of Pennsylvania, granting defendant John Nash’s motion for summary

judgment and entering judgment against Goode and in favor of Nash in Goode’s civil
rights case. Because we conclude that this appeal lacks arguable merit, we will dismiss it

pursuant to 28 U.S.C. § 1915(e)(2)(B).

       Goode, an inmate at the Federal Correctional Institution at Schuykill, filed a

complaint in the District Court alleging that his constitutional rights were violated due to

his exposure to second-hand smoke at the prison. Defendant Nash filed a motion for

summary judgment arguing that he was entitled to qualified immunity and that Goode’s

complaint failed to state a claim upon which relief could be granted. The Magistrate

Judge assigned to the case recommended that the motion be granted, but the District

Court declined to adopt the recommendation, noting that the record showed that Goode

had a history of infirmary visits for breathing and sinus problems that potentially could

have been caused by second-hand smoke, and that Goode had complained to Nash about

his exposure. The Court noted that “several of these elements are supported only by

minimal evidence, and sometimes by only the allegations of Goode’s brief in opposition

and those affidavits submitted into evidence,” but the Court determined that Goode was

entitled to develop his allegations through limited discovery. District Court order entered

9/26/05, doc. #27.

       The Magistrate Judge thereafter granted the parties 90 days following the filing of

an answer to complete discovery and file dispositive motions. Nash filed an answer on

February 2, 2006, and on May 17, 2006, filed a motion for summary judgment, followed

by a supporting brief and statement of facts on June 1, 2006. Goode filed a brief in

opposition, an “appendix attachment,” and various other filings in response, but did not

                                              2
submit any further support for his allegations. Aside from personal allegations, the only

evidence Goode submitted was the following: (1) two inmate affidavits indicating that

Goode’s possession and purchases of tobacco were on their behalf and not for Goode’s

personal use; (2) a case summary of Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003)1;

and (3) an excerpt from an appendix in the FCI-Schuykill handbook setting forth certain

prisoner rights and responsibilities.2

       As the Magistrate Judge noted, we have recently emphasized that although the

party opposing summary judgment is entitled to “the benefit of all factual inferences in

the court’s consideration of a motion for summary judgment, the nonmoving party must

point to some evidence in the record that creates a genuine issue of material fact,” and

“cannot rest solely on assertions made in the pleadings, legal memoranda or oral

argument.” Berckeley Inv. Group, Ltd. V. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)

(internal citations omitted). We agree with the District Court that Goode did not meet his

burden of pointing to some evidence in the record that creates a genuine issue of material

fact regarding his allegations that defendant violated his Eighth Amendment rights by



       1
        In Atkinson, we held that prison officials were not entitled to qualified immunity
from an inmate’s claim that they violated his Eighth Amendment rights by exposing him
to second-hand tobacco smoke.
       2
        Goode argued in his opposition to the second motion for summary judgment that
he was “NEVER ADVISED as to any [discovery] date deadline of May 3, 2006.” We
agree with the Magistrate Judge that Goode had ample notification that the discovery
period had commenced and that it would be necessary for him to engage in some
discovery in order to substantiate his claims.

                                             3
exposing him to second-hand smoke.

      For the foregoing reasons, the appeal will be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B).




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