                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-3877
                                     _____________

                                    SHAUN AUSTIN,
                                                Appellant

                                             v.

                  COUNTY OF NORTHAMPTON; C.O. LEON HILL;
                   C.O. JAMIE BRANNON; L.T. JOSEPH KOSPIAH
                                 _____________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                   (No. 5-11-cv-02847)
                    District Judge: Honorable Thomas N. O’Neill, Jr.

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 9, 2015
                                    ____________

          Before: CHAGARES, SHWARTZ, and RENDELL, Circuit Judges.

                               (Filed: November 18, 2015)
                                      ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.

       Inmate Shaun Austin filed a lawsuit under 42 U.S.C. § 1983 against Correctional

Officers Leon Hill and Jamie Brannon for failing to protect him during his incarceration,

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
in violation of his constitutional rights. A jury returned a verdict in favor of the officers.

Austin challenges two of the District Court’s evidentiary rulings and seeks a new trial.

We will affirm.

                                                I.

         We write solely for the parties’ benefit and recite only the facts essential to our

disposition. As shown at trial, Austin entered prison in July 2008 on charges including

child rape (while Austin was HIV positive), possession of child pornography, and

recklessly endangering another person. Due to the nature of his crimes, he was placed in

the prison’s protective custody unit — L-Tier.

         In May 2009, Austin told Officer Brannon that another L-Tier inmate, Eugenio

Torres, had been involved in a fight. According to Austin, after Torres found out that

Austin snitched on him, Austin informed Officers Brannon and Hill that Austin feared for

his safety. The next day, Torres attacked Austin with a razor blade.

         Austin then brought this suit against the officers. After a trial, the jury returned a

verdict in favor of the officers on Austin’s claim for failure to protect.1 Austin timely

appealed, challenging two of the District Court’s evidentiary rulings: (1) exclusion of an

incident report regarding Torres’s prior behavior towards a snitch, and (2) admission of

Austin’s sex crime charges.




1
    Claims against other defendants were disposed of prior to trial.

                                                2
                                              II.2

       We review the District Court’s evidentiary rulings for abuse of discretion. United

States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). An abuse of discretion occurs only

where the decision is “arbitrary, fanciful, or clearly unreasonable — in short, where no

reasonable person would adopt the district court’s view.” Id. (quotation marks omitted).

       Austin’s claim against the officers is for failure to protect, which requires that he

show “(1) he was incarcerated under conditions posing a substantial risk of serious harm,

(2) the official was deliberately indifferent to that substantial risk to his health and safety,

and (3) the official’s deliberate indifference caused him harm.” Bistrian v. Levi, 696

F.3d 352, 367 (3d Cir. 2012). A plaintiff can prove an official’s knowledge of a

substantial risk to his safety “in the usual ways, including inference from circumstantial

evidence.” Id. (quotation marks omitted).

                                              A.

       In the first ruling at issue, the District Court excluded an incident report, written

by non-party Officer Robert Sikorsky, that described an attack Torres ordered on another

inmate for snitching three months before Torres attacked Austin. The District Court held

prior to trial that although the report was not hearsay (it was offered to show the officers’

knowledge), it was not relevant unless Austin could show that the officers were aware of




2
  The District Court had jurisdiction under 18 U.S.C. §§ 1331, 1367. We have appellate
jurisdiction under 28 U.S.C. § 1291.

                                               3
it.3 At trial, however, no direct evidence indicated as much. Neither Hill nor Brannon

testified that they saw or heard about the report; in fact, Brannon denied knowledge of the

report and of Torres’s involvement in the earlier attack. Nor was there testimony from its

author, Sikorsky, that he either showed Hill or Brannon the report or told them about it.

Based on the lack of evidence that Hill and Brannon knew about the report, the District

Court determined it was irrelevant.

       Nonetheless, Austin submits that the following circumstantial evidence indicates

that the officers were aware of the report. There are three, eight-hour officer shifts on L-

Tier, one officer per shift. Each officer informs the officer relieving him of “significant

events that have been going on” (“shift briefing”). Appendix (“App.”) 459. Officer

Brannon testified that information about an inmate ordering a hit on another inmate

would be such a significant event to report to the relieving officer. During the time

period of the incident report in question, Officer Hill “usually” worked the 2pm to 10pm

shift, and Officer Sikorsky, the author of the report, worked the 6am to 2pm shift. App.

392-93. Thus, Sikorsky briefed Hill “every day at shift change” about “significant events

that had happened,” which Austin suggests would have included information about

Torres’s prior hit on a snitch. App. 393-94.

       This chain of circumstantial inferences is tenuous at best. Austin presents no

evidence confirming that Hall relieved Sikorsky on the day Sikorsky discovered this

information about Torres. And, although it was Brannon’s practice to brief other officers

3
 Evidence is relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the
action.” Fed. R. Evid. 401.
                                               4
on information about an inmate ordering a hit, that testimony does not necessarily lead to

the conclusion that Sikorsky did the same. Additionally, Austin fails to provide any

theory as to how Brannon learned about the report, given that he did not have the shift

following Sikorsky’s. With no direct evidence that the officers were aware of the report,

and only speculation suggesting otherwise, we cannot conclude that the District Court’s

determination that that the report was irrelevant was “arbitrary, fanciful, or clearly

unreasonable.” Green, 617 F.3d at 239. Accordingly, the District Court did not abuse its

discretion in excluding the incident report.

                                               B.

       In the second ruling at issue, the District Court held that the officers could

introduce evidence of Austin’s sex crime charges to support their theory that Austin’s

criminal history and his tendency to talk about it motivated Torres to attack Austin (a risk

the officers could not have anticipated).

       But, argues Austin, the only suggestion that Torres’s attack was motivated by

Austin’s criminal history was a statement Torres made to Lieutenant Richard Botteri —

which itself was wrongly admitted. The District Court allowed Lieutenant Botteri, who

was present on L-Tier after the attack, to testify by deposition that Torres

“spontaneously” told Botteri that Torres attacked Austin because of his sex crimes. App.

311. The confession came while Torres was in handcuffs after the attack on Austin and

while Botteri was getting Torres “changed over” (presumably to another location). Id.

The District Court ruled that the statement was admissible “because it was at the time of

the attack.” App. 288-89. Austin argues that Torres’s statement to Lieutenant Botteri

                                               5
does not fall within the “excited utterance” exception to the hearsay rule, see Fed. R.

Evid. 803(2) (“statement relating to a startling event or condition, made while the

declarant was under the stress of excitement that it caused”), because there is a lack of

evidence that Torres made the statement while excited from his attack on Austin. Under

Austin’s theory, Torres’s statement is inadmissible, which therefore makes the sex crime

charges irrelevant.4

       We hold that, even if the District Court did err in admitting the statement, that

error was harmless. See McQueeney v. Wilmington Trust Co., 779 F.2d 916, 917 (3d

Cir. 1985) (determining that an erroneous evidentiary ruling is harmless “if it is highly

probable that the error[] did not affect the outcome of the case”). Other evidence made

relevant the officers’ theory that Torres was motivated by Austin’s sex crime charges.

For example, Officer Hill testified that inmates discussed Austin’s charges and HIV-

positive status, especially because his case was high profile and in the newspaper.

Inmates shared newspaper clippings about Austin’s charges. According to the testimony

of Officer Hill and another inmate, Austin openly discussed his HIV-positive status and

used it as a means to do what he wanted on L-Tier with impunity. That same inmate

testified that this behavior “used to get under a lot of people’s skin.” App. 541. Thus,

4
  Austin additionally makes the separate argument that Torres’s “precise motivations” for
attacking him are altogether irrelevant. Austin Br. 27. That is incorrect. Torres’s
motivations are relevant to the extent they indicate whether or not the officers should
have anticipated the attack. The officers cannot be liable unless they were deliberately
indifferent to a risk that materialized and caused Austin harm. If Torres attacked Austin
not because he snitched but because of the sexual nature of his crimes, and the officers
were unaware that Torres posed a risk to Austin on that basis, then no deliberate
indifference their part could have caused Austin harm.

                                             6
regardless of whether Torres’s statement to Lieutenant Botteri was admitted, this other

evidence made Austin’s sex crime charges relevant. See Gerhart v. Henry Disston &

Sons, Inc., 290 F.2d 778, 786 (3d Cir. 1961) (“[T]he improper admission of incompetent

evidence which is merely cumulative on matters which are clearly shown by other

admissible evidence is harmless error.”).5

                                             III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




5
  Austin’s challenge to the District Court’s Rule 403 analysis of the sex crime charges
similarly lacks merit. The District Court articulated a “rational explanation” of how the
probative value of this evidence was not substantially outweighed even by what the
District Court acknowledged was a high risk of prejudice. United States v. Finley, 726
F.3d 483, 491 (3d Cir. 2013) (quotation marks omitted). The District Court did not abuse
its discretion. Id.
                                              7
