                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-1529
                                       ___________

                                   NOLAN BIZZELL,
                                            Appellant

                                             v.

                    SUPERINTENDENT FRANKLIN J. TENNIS;
                  MAJOR MORRIS; CAPTAIN EDEN; C.O. PORTER
                     ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-09-cv-01353)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 18, 2011

   Before: SCIRICA, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges

                                 (Filed: October 24, 2011)
                                         _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM.

       Pro se plaintiff Nolan Bizzell appeals orders granting summary judgment in favor

of the defendants and denying a motion for reconsideration. Having reviewed the record,

we are in full accord with the District Court and will affirm its judgment.
       The basic facts of this lawsuit are not in dispute. During the time in controversy,

Bizzell was incarcerated at the State Correctional Institution at Rockview, located in

Bellefonte, Pennsylvania. In early 2007, he was paired with a new cellmate, Baron

Powell, whose threatening remarks, erratic behavior, and racialist tendencies were cause

for some alarm. On several occasions, Bizzell complained to prison staff members

(including defendant Corrections Officer Porter) about his stormy relationship with

Powell—for example, informing a Sergeant that “my celly is crazy”—and was instructed

to “keep doing what you’re doing” and “stay out of trouble.” Bizzell, who was focused

on “get[ting his] GED” and “conduct[ing] [him]self as a positive citizen,” as well as on

keeping his prison job, followed this advice, and for some time the tension between the

two cellmates remained purely verbal.

       On July 6, 2007, Bizzell discovered a four-inch-long bolt in his property box.

Recognizing that it was contraband—and, worse, contraband that could “be sharpened . .

. [into] a potential weapon”—Bizzell took the bolt to defendant Porter, informing him

that he “found this in [his] property and [he] did not put it there.” Bizzell further told

Porter that he suspected Powell to be the culprit, as no other inmate could have placed the

contraband in the cell. Bizzell suspected that Powell was “trying to set [him] up” (i.e. get

him cited for misconduct); he also may have told Porter that he was concerned about

personal safety. 1 Porter assured Bizzell that he would “take care of it.”


1
  The facts as recounted by Bizzell in his deposition do not entirely correspond to what he
included in his pleadings. In the complaint and in his response to the defendants’ motion
                                              2
       The next day, Bizzell went to see defendant Major Morris. He again explained the

situation regarding the bolt, implicating Powell and emphasizing that he did not wish to

be sanctioned for this possible contraband. In response to Bizzell’s worries over Porter’s

apparent lack of action, Morris told Bizzell to “stop being paranoid,” advised him to see a

psychiatrist to “get [his] medication upped,” and walked away.

       Undeterred, Bizzell continued to seek help, asking his work supervisor (Crispell, a

non-party) to call defendant Captain Eden. Crispell did so, informed Eden of the



for summary judgment, he described telling various employees of the prison (some of
whom are parties, some of whom are not) that he was concerned for his personal safety
and that Powell “would attack him as he was being bullied by him.” His deposition
testimony (which, we should note, is not reproduced in full in the defendants’
submissions, and does not contain much material associated with Bizzell’s non-party
discussions) was more equivocal, couched more in terms of the potential institutional and
collateral harm connected to being caught with contraband:
       Q. Why, if he wanted to cause you harm, would he hide the bolt in your
       stuff as opposed to his stuff?
       A. Well, wouldn’t you think it would be easier if the shakedown came in
       your cell and there’s an object in there, who would get in trouble? Either
       way, whatever which way it goes; physically, mentally, emotionally or
       whatever which way it will go, I would be harmed because everything I
       did, my outside clearance, my education, my schoolwork. You have to
       have a certain clearance to do what I was doing where there’s an outside
       clearance. I can work outside without supervision, so I don’t have to
       have a staff member with me. So if they go and find that in my cell, there’s
       no, oh, I don't know how that got there. That’s a misconduct, you know
       that. And I believe I did the right thing as the policy say[s], when you find
       any contraband, because I’m responsible for what’s [] in that cell,
       regardless if it’s mine or not mine, I am to take it up to the officer
       immediately.
Dep. Tr. 42:22–43:19, ECF No. 19-2. Bizzell elsewhere admitted that his complaint
contained some factual inaccuracies. See, e.g., Dep. Tr. 62:10–14 (clarifying that his
“several days” of hospitalization was actually just “one day”).

                                             3
situation, and told Bizzell of Eden’s advice: “not to worry about it.”

         Later that day, after speaking to several other individuals—and apparently issuing

an agitated plea to non-party Nurse Paula, in which he described his fears of an

impending attack—Bizzell was assaulted in his cell by Powell. Bizzell sustained serious

injuries from the beating and was briefly hospitalized. During his convalescence, he met

with defendant Superintendent Tennis, with whom he had not previously spoken.

         After exhausting his administrative grievances, 2 and following his release from

prison and his relocation to Florida, Bizzell initiated this 42 U.S.C. § 1983 suit against

defendants Tennis, Morris, Eden, and Porter, alleging that they violated his rights under

the Eighth Amendment to the United States Constitution by displaying “deliberat[e]

indifferen[ce] to his personal safety by ignoring repeated complaints and requests for

assistance for protection from [Powell].” Compl. ¶ 1, ECF No. 1. The defendants moved

for summary judgment. The presiding Magistrate Judge issued a Report and

Recommendation (R&R) in favor of summary judgment; Bizzell filed objections, but did

not do so in a timely fashion. Accordingly, the District Court performed “clear error”

review of the R&R and granted summary judgment in favor of the defendants. Bizzell

moved for reconsideration of this outcome, after the denial of which he filed a timely

notice of appeal.

         “We exercise plenary review of the district court’s grant of defendants’ motion for



2
    See 42 U.S.C. § 1997e(a).
                                              4
summary judgment.” Fontroy v. Owens, 150 F.3d 239, 242 (3d Cir. 1998). 3 In so doing,

we apply “the same standard that the lower court should have applied.” Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000); see also Fed. R. Civ. P. 56(a)

(summary judgment is appropriate if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law”). 4 In determining whether

summary judgment is appropriate, we must “view all evidence and draw all inferences in

the light most favorable to the non-moving party.” Startzell v. City of Phila., 533 F.3d

183, 192 (3d Cir. 2008). “[T]he non-moving party must rebut the [summary-judgment]

motion with facts in the record and cannot rest solely on assertions made in the pleadings

[or in] legal memoranda . . . .” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201


3
  Our selection of a standard of review is complicated somewhat by Bizzell’s untimely
filing of objections to the R&R; indeed, he specifically asks us to deem his objections
timely and remand the case to the District Court for de novo review. His argument to this
end, which is based on the “confusing” nature of the local and Federal rules, is
unavailing. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (observing
that pro se status is no excuse for failure to follow Federal Rules); see also McNeil v.
United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those
who proceed without counsel.”). However, despite “denying” Bizzell’s motion for
reconsideration, the District Court functionally analyzed his objections de novo;
therefore, we need not determine what effect his failure to timely object may have had on
our standard of review. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011);
Henderson v. Carlson, 812 F.2d 874, 878 n.4 (3d Cir. 1987). As the sole focus of the
motion for reconsideration was in fact achieved in all but name, we will not discuss it
further herein.
4
  The R&R issued on November 29, 2010, and the District Court entered its order on
December 20, 2010. In the interim, the 2010 revisions to the Federal Rules went into
effect. We cite above to the December 2010 revision, but the differences between the old
and new Rule 56 do not affect the substantive summary-judgment standard. See Fed. R.
Civ. P. 56 advisory committee’s 2010 note.
                                             5
(3d Cir. 2006) (internal citations and quotations omitted).

       We agree that the defendants were entitled to summary judgment. The Eighth

Amendment’s prohibition on “cruel and unusual punishments” has “been interpreted to

impose a duty upon prison officials to take reasonable measures to protect prisoners from

violence at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.

1997) (citations and quotations omitted). But “a prison official cannot be found liable

under the Eighth Amendment for denying an inmate humane conditions of confinement

unless the official knows of and disregards an excessive risk to inmate health or safety.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added); see also Betts v. New

Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010). “Consequently, to survive

summary judgment on an Eighth Amendment claim asserted under 42 U.S.C. § 1983, a

plaintiff is required to produce sufficient evidence of (1) a substantial risk of serious

harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.”

Hamilton, 117 F.3d at 746 (emphasis added). Here, there is no indication that the

defendants were aware of a serious risk posed to Bizzell by Powell. The two had not

previously fought; Bizzell’s pre-July complaints focused on Powell’s instability and not

his potential for (and threats of) violence. Even if we were to follow the July events as

Bizzell describes them in his complaint and memorandum of law, his expressions of fear

upon finding the bolt were mixed with concerns over disciplinary sanctions for

contraband. The bolt itself, as Bizzell admits, was not fashioned into a weapon, and had

been confiscated by the defendants before the assault. Powell’s disciplinary history,
                                              6
meanwhile, suggests a troublemaker with violent tendencies—hardly an ideal cellmate

for Bizzell 5—but (as the District Court explained) his citations for fighting were from

September 2005, and therefore did not suggest an immediate risk of violence. See

Brennan, 511 U.S. at 837 (“[T]he 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.”); Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (in case

with similar fact pattern, “before Defendants’ awareness arises to a sufficient level of

culpability, there must be much more than mere awareness of [a cellmate’s] generally

problematic nature”); cf. Verdecia v. Adams, 327 F.3d 1171, 1175–76 (10th Cir. 2003)

(distinguishing Eighth Amendment deliberate indifference from situations in which a

defendant is “negligent in assessing [a] risk”). Finally, Bizzell has shown no personal

involvement by defendant Tennis in any aspect of a potential constitutional violation, and

§ 1983 liability cannot be premised solely on respondeat superior. Evancho v. Fisher,

423 F.3d 347, 353 (3d Cir. 2005) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988)).

       In sum, while we agree with the defendants that the assault was tragic, we also

believe that they did not demonstrate the deliberate indifference to a serious risk of harm

required for liability under the Eighth Amendment. We will therefore affirm the

judgment of the District Court.


5
 Of course, Bizzell had no constitutional right to a cellmate of his choosing. See Murray
v. Bledsoe, ___ F.3d ___, No. 10-4397, 2011 WL 2279428, at *1 (3d Cir. June 10, 2011).
                                             7
