                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-3481
                                  ___________

                   IN RE: BAYSIDE PRISON LITIGATION

                               DAN MCCALLUM,

                                                   Appellant

                                        v.

           COMMISSIONER OF THE NEW JERSEY DEPARTMENT
                      OF CORRECTIONS, ET AL.
                ____________________________________

                 On Appeal from the United States District Court
                          for the District of New Jersey
                     (D.C. Civil Action No. 1-09-cv-03340)
                  District Judge: Honorable Robert B. Kugler
                  ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                               March 24, 2011
        Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

                         (Opinion filed March 25, 2011)

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Plaintiff Dan McCallum appeals the August 2, 2010, order of the District Court
entering judgment in favor of the defendants. For the following reasons, we will affirm.

         In July 1997, an inmate of the Bayside State Prison in New Jersey fatally stabbed a

corrections officer, allegedly leading to widespread retaliation by staff members against

the inmate population. Litigation under 42 U.S.C. § 1983 commenced in 1997, see In re

Bayside Prison Litig., 157 F. App‘x 545, 546 (3d Cir. 2005), and was ―still in its initial

phases almost four-and-a-half years‖ later, due to ―hundreds of constantly evolving

Plaintiffs,‖ see In re Bayside Prison Litig., 190 F. Supp. 2d 755, 756 (D. N.J. 2002).1

         In October 2007, many of the remaining plaintiffs consented to have their actions

reviewed by a Special Master, the Honorable John Bissell, to ―assist the resolution of

these individual claims and [to formulate] a fair and efficient plan for the management of

the individual claims.‖ See Order of Reference to Special Master, ECF No. 2.2 The

Special Master Agreement established that: 1) the participants would waive jury trials as

to all matters submitted for resolution; 2) Federal Rules—such as the Federal Rules of

Evidence and Civil Procedure—would apply, as would ―all applicable law‖; 3) findings

of fact would be ―binding pursuant to Fed. R. Civ. P. 53(g)(3)3; and 4) conclusions of law

would be reviewed de novo upon objection. Special Master Agreement ¶¶ 1, 3–4, ECF


1
 Class certification was denied by the District Court in April 2000, as individual issues
overwhelmed any commonality among the plaintiffs.
2
  All ECF references in this opinion refer to entries on McCallum‘s individual docket
(1:09-cv-03340).
3
    This subsection is now found at Fed. R. Civ. P. 53(f)(3)(C).
                                               2
No. 2.

         Plaintiff McCallum was one of the parties to this agreement. He had alleged that

on August 13, 1997, after being falsely charged with a weapons offense, he was:

         taken to lockup where he was assaulted. A guard smashed his face into an
         officer‘s desk and he was hit and kicked in the back. He requested medical
         assistance but was denied. [He] did not see medical personnel until he was
         transferred to another prison. He put in numerous requests for an Internal
         Affairs investigation and the administrator but never received a response.
         He filed an A.R.F. but was threatened for doing so. [He] subsequently
         experienced back pain, and had to have a tooth replaced due to the assaults.
         Guards directed racial epithets to him.

Sixth Am. Compl. ¶ 226, ECF No. 3. This mistreatment was allegedly ―done with the

intention of inflicting pain and suffering upon inmates in retaliation for and/or as revenge

for the killing of a corrections officer.‖ Sixth. Am. Compl. ¶ 4.

         The Special Master heard testimony on March 31, 2010, during which McCallum

described the two events underpinning his complaint. First, while McCallum was being

marched to the B Unit after a shank was discovered in his cell, an officer repeatedly

jabbed him in the back with a baton, causing him serious pain. He later developed a back

problem, which required the use of muscle relaxers for several months thereafter. See Tr.

66:5–67:10, 68:22–69:6, 69:10–17.4 Upon arriving at the B Unit:

         I was being walked to the podium, to the desk, and I was trying to slow
         down, I was on my tippy toes, another officer grabbed me by my head and
         rammed my face into the podium desk, knocked my tooth loose. And as I

4
 All references to transcript testimony within this opinion are to the testimony collected
on March 31, 2010. To our knowledge, these notes of testimony have not received an
ECF number.
                                              3
       was about to spit out some blood, the officer that was at the desk said don‘t
       put no blood on my floor. Don‘t get no blood on my floor.

Tr. 67:15–22. He complained that he could not identify the officers involved in either

assault, as they ordered and compelled him to keep his head down during the process.

       Two institutional witnesses then testified in rebuttal. Thomas Guerin, an Internal

Affairs investigator, had interviewed McCallum several months after the incident.

Guerin testified that while McCallum had insisted that he was not aware of the shank in

his cell, at no time did he complain that he had been assaulted in connection with the

incident. Tr. 130:10–15, 130:24–131:2. Nor was there an indication in Guerin‘s written

report of either the jabbing or podium incidents. Tr. 135:19–22, 136:13–16. Guerin

insisted that if something like that were to have been related, his report would reflect the

allegation. Tr. 67:15–22. Linwood Veach, Sr., was working at B Unit during the

incident in question and recalled no unusual altercations. Tr. 146:7–148:15.

        Having considered the aforementioned testimony in tandem with several exhibits,

the Special Master issued his Report on April 21, 2010, finding that McCallum had failed

to prove an Eighth Amendment violation and recommending that the court rule in favor

of the defendants. The Report questioned McCallum‘s credibility, observing that he had

numerous prior criminal convictions, some of which involved the use of falsity, fraud,

and deception. Report 8:2–11. With regard to the jabbing incident, there was no

information in the record to dispute that McCallum was jabbed, to some extent, and that

he was walked over to B Unit in an uncomfortable position; regardless, ―[t]he force
                                              4
employed by . . . officers in transit was not excessive or sadistic under the circumstances,

but was . . . reasonably . . . employed under all the circumstances including the fact that

[McCallum] was to be charged with harboring and concealing a dangerous homemade

shank.‖ Report 8:23–9:26, 13:2–10. With regard to the podium incident, the Special

Master weighed the testimony with several exhibits that documented McCallum‘s

complaints and protestations of innocence with regard to the shank in his cell, none of

which made reference to any assault or ill treatment. He concluded: ―The incident as Mr.

McCallum described it at the podium just never happened. And the fact and/or the

severity of the incident as he has described it before this Special Master is belied by the

complete absence of any reference to it in Mr. McCallum‘s contemporaneous writings in

August of 1997 and in his interviews and other contact with Internal Affairs officers in

1998.‖ Report 13:10–17. The Report recommended an order and judgment of no cause

for action; the District Court agreed, and, as there were no objections filed, found in favor

of the defendants on August 2, 2010. This appeal followed.

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291. As the parties

specifically agreed to be bound by the Special Master‘s findings of fact, see Fed. R. Civ.

P. 53(f)(3)(C), those findings are ―unreviewable by this court or by the district court.‖

AgGrow Oils, L.L.C. v. Nat‘l Union Fire Ins. Co., 420 F.3d 751, 753 (8th Cir. 2005).

But ―[w]hether facts support a cause of action involves application of law to the facts,‖

and we will review issues of law ―de novo . . . look[ing] directly to the special master‘s

                                              5
binding factual findings to determine whether they establish the [legal] elements required

for . . . relief.‖ Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895, 902–

03 (4th Cir. 1996).

       The Eighth Amendment prohibits the ―unnecessary and wanton infliction of pain.‖

Whitley v. Albers, 475 U.S. 312, 319 (1986); Betts v. New Castle Youth Dev. Ctr., 621

F.3d 249, 259 (3d Cir. 2010). The core inquiry on an excessive-force claim is ―whether

force was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.‖ Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (per

curiam) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). ―It is obduracy and

wantonness, not inadvertence or error in good faith, that characterize the conduct

prohibited by‖ the Eighth Amendment; ―[t]he infliction of pain in the course of a prison

security measure, therefore, does not amount to cruel and unusual punishment simply

because it may appear in retrospect that the degree of force authorized or applied for

security purposes was unreasonable, and hence unnecessary in the strict sense.‖ Whitley,

475 U.S. at 319. In order to determine whether a correctional officer has used excessive

force, we examine: ―(1) the need for the application of force; (2) the relationship between

the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the

extent of the threat to the safety of staff and inmates, as reasonably perceived by

responsible officials on the basis of the facts known to them; and (5) any efforts made to

temper the severity of a forceful response.‖ Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.

                                              6
2000) (internal citations, quotations omitted).

       With regard to the baton incident, the Special Master concluded that the conduct

did not rise to the level of an Eighth Amendment violation. We agree. While

acknowledging that nothing in the record contradicted McCallum‘s claims that he was

jabbed, the Special Master found that the force ―was not excessive or sadistic under the

circumstances,‖ given that the officers had just found a dangerous weapon in

McCallum‘s cell. The additional force may have been unnecessary, but the facts found

by the Special Master do not support the conclusion that it was inflicted in a malicious

and sadistic manner.5 With regard to the podium assault, we are bound by the Special

Master‘s conclusion that ―[t]he incident as Mr. McCallum described it at the podium just

never happened.‖

       Finally, McCallum alleged that he was denied medical treatment following the

aforementioned incidents. In order to succeed on an Eighth Amendment claim

addressing denied medical treatment, McCallum must show ―(1) that the defendants were

deliberately indifferent to [his] medical needs and (2) that those needs were serious.‖

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S.


5
 Both in the complaint and on appeal, McCallum avers that officers made racist remarks
while walking him towards B Unit. However, McCallum provided no testimony nor any
other evidence supporting his allegation of racist remarks. See Nisenbaum v. Milwaukee
County, 333 F.3d 804, 810 (7th Cir. 2003) (―Allegations in a complaint are not
evidence.‖); Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137 (9th
Cir. 2001) (―[U]nsubstantiated versions of events proffered . . . on appeal are, of course,
not evidence.‖).
                                              7
97, 106 (1976)). As with other Eighth Amendment claims, mere negligence or

malpractice is not enough; rather, there must be conduct ―that includes recklessness or a

conscious disregard of a serious risk.‖ Id.; see also Monmouth Cnty. Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (―Where prison authorities deny

reasonable requests for medical treatment . . . and such denial exposes the inmate ‗to

undue suffering or the threat of tangible residual injury‘ . . . deliberate indifference is

manifest.‖) (internal citations omitted).

       The Special Master did not squarely address this claim in his Report, despite the

presentation of testimony on the topic and the existence of physical evidence.

Nevertheless, as it is well settled that we can affirm on any basis finding support in the

record, see Fairview Twp. v. EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985), we will do so

on the ground that the record fails to show allegations of the deliberate indifference

necessary to sustain an Eighth Amendment violation.

       For the foregoing reasons, we will affirm the order of the District Court adopting

the findings of the Special Master.




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