BLD-272                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-4664
                                     ___________

                        STEPHEN BERNARD BLACKSTONE,

                                                 Appellant

                                           v.

             A.L. THOMPSON, Sued in his individual and official capacity
                    ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 12-cv-00899)
                       District Judge: Honorable Cathy Bissoon
                     ____________________________________

        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
                                    June 5, 2014
           Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                             (Opinion filed: June 10, 2014)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Stephen Bernard Blackstone, an inmate proceeding pro se, filed a complaint in the

District Court pursuant to 42 U.S.C. § 1983. He alleged that Corrections Officer Alfred

L. Thompson violated the Eighth Amendment by failing to protect him from an attack by
his cellmate. After discovery, Thompson filed a motion for summary judgment, which

the District Court granted on the recommendation of the Magistrate Judge. Blackstone

appealed.1 Because the appeal presents no substantial question, we will summarily

affirm.

                                               I.

          Blackstone’s complaint alleged that Corrections Officer A.L. Thompson failed to

protect him from his cellmate, Gary Weedon. According to the allegations, on November

9, 2010, at approximately 3:30 p.m., Blackstone told Thompson that he was having

problems with Weedon, that he did not feel comfortable around Weedon, and that he

wanted to move. In response, Thompson informed Blackstone that he did not have the

authority to move inmates. He provided Blackstone with a DC-135A Request to Staff

form and instructed him to fill out the form and give it to the unit manager the following

day. Blackstone filled out the form and immediately placed it in the unit manager’s

mailbox. He wrote, among other things: “I believe my cellie may try to assault me in the

cell tonight.” [Doc. 1, Complaint, Exh. A]. It is undisputed that Thompson never saw

the written request.

          That evening, Blackstone sustained injuries from a fight with his cellmate.

According to Blackstone, he was lounging in the dayroom when Weedon attacked him,


1
   Blackstone subsequently filed a post-judgment motion seeking relief from the final
judgment in order to introduce new evidence. The District Court denied that motion.
That denial is not before us, as Blackstone did not file a timely new or amended Notice of
Appeal. See Fed. R. App. P. 4(a)(4)(B)(ii).
                                               2
unprovoked. The attack resulted in facial contusions, blurred vision, lingering headaches

and a fractured orbital bone. Thompson conceded that there was a fight but maintained

that the altercation was mutual, as opposed to an unprovoked assault. Thompson

described the fight accordingly in an incident report. Prison officials conducted a

disciplinary hearing. After the hearing officer reviewed video evidence, Blackstone and

Weedon were both found guilty of fighting. As punishment, Blackstone was assigned to

restricted housing for thirty days.

       Blackstone alleged that prison policy DC-ADM 802 authorizes an inmate to

request self-lockup for his own protection, but that he was not given that option by

Thompson. He further claimed that Thompson knew or should have known that Weedon

was likely to assault Blackstone because, in addition to Blackstone’s express statement to

Thompson, Weedon carried an inmate status of “H-Code,” signifying that he was a high

risk inmate. Blackstone also alleged that Thompson knew that other inmates had

complained about Weedon in the past.

                                            II.

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

affirm if Blackstone’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4

and 3d Cir. I.O.P. 10.6. When reviewing orders granting summary judgment we apply

the same test as the District Court, granting summary judgment where there remains no

genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law. See Noel v. Boeing Co., 622 F.3d 266, 270 n.4 (3d Cir. 2010). We view
                                             3
the underlying facts and all reasonable inferences therefrom in the light most favorable to

the non-moving party. See Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010).

                                             III.

       To survive Thompson’s motion for summary judgment, Blackstone needed to

point to evidence in the record that Thompson both knew of and was deliberately

indifferent to an excessive risk to his safety. See Beers-Capitol v. Whetzel, 256 F.3d 120,

131 (3d Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). We agree with

the District Court that Blackstone did not adduce evidence to show that Thompson

operated from the requisite mindset.

       When making a determination as to deliberate indifference, the court must “focus

[on] what a defendant’s mental attitude actually was (or is), rather than what it should

have been (or should be).” Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir.1997) (internal

citation and quotation marks omitted). Deliberate indifference is “a state of mind more

blameworthy than negligence.” Farmer, 511 U.S. at 835. Even if Thompson “knew the

underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise

was insubstantial or nonexistent,” liability will not attach. Id. at 844. Here, there is no

indication in the record that Thompson made the inference that an excessive risk was

present. Prior to the fight, Blackstone had just one communication with Thompson, in

which Blackstone stated that he was not “getting along” and did not “feel comfortable”

with his cellmate. [See Doc. 66, p. 1-2]. Absent any other evidence of Thompson’s

culpable state of mind, that singular, generalized statement is not sufficient to permit a
                                              4
reasonable finder of fact to infer that Thompson both knew of and intentionally

disregarded an excessive risk to Blackstone’s safety.

       Blackstone points to Weedon’s “H-class” status as circumstantial evidence of

Thompson’s deliberate indifference. The risk that an inmate with some history of

violence might attack another inmate for an unknown reason, however, is too speculative

to give rise to an Eighth Amendment claim. See Bistrian v. Levi, 696 F.3d 352, 371 (3d

Cir. 2012). It is true that the requisite mindset may be proved by circumstantial evidence,

such as where a plaintiff demonstrates that a substantial risk was “longstanding,

pervasive, well-documented, or expressly noted by prison officials in the past.” Farmer,

511 U.S. at 842 (citations omitted); see also Leavy, 117 F.3d at 747. Here, however,

there were no longstanding, pervasive, well-documented, or previously noted tensions

between Weedon and Blackstone. Nor is there any indication in the record that

Blackstone told Thompson of any specific incident or cause of tension between the

cellmates from which a greater inference of risk could be drawn. See Bistrian, 696 F.3d

at 368-71 (permitting Eighth Amendment claims to proceed where an inmate repeatedly

advised officials of threats he received as a result of helping an investigation that targeted

those with whom he was placed). To the contrary, Blackstone’s filings repeatedly

describe the type of “out-of-the-blue and unadorned ‘I’m-in-trouble’ entreaty,” id. at

69-70, that is commonly faced by officials, who are charged with the “arduous” task of

managing an inmate population while protecting those in custody. Young v. Quinlan,

960 F. 2d 351, 363 n.23 (3d Cir. 1992), superseded by statute, Prison Litigation Reform
                                              5
Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, as recognized in Nyhuis v. Reno, 204

F.3d 65, 71 n.7 (3d Cir. 2000).

         We acknowledge that the factual assertions of the parties differ as to who

instigated the altercation between Weedon and Blackstone. That dispute, however, is not

material to Blackstone’s claims. See F.R.Civ.P. 56(a). Even assuming that Blackstone

was attacked by Weedon, Blackstone has not pointed to evidence of deliberate

indifference. As we have explained, the combination of Weedon’s “H-Code” status and

one report of unspecified tensions between the cellmates does not support an inference of

deliberate indifference. The District Court thus correctly concluded that summary

judgment was warranted.2

                                             IV.

         For the foregoing reasons, we will summarily affirm the judgment of the District

Court.




2
  We also perceive no error in the District Court’s order denying Blackstone’s request for
counsel. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). We observe that
Blackstone diligently prosecuted his case; his thorough filings reflect that he was able to
effectively conduct discovery and present his arguments. Id.; Smith-Bey v. Petsock, 741
F.2d 22, 26 (3d Cir. 1984). The District Court also did not err in denying Blackstone’s
motion for a temporary restraining order. See Fed. R. Civ. P. 65.
                                              6
