PS2-015                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 13-4613
                                       ___________

                                TIMOTHY T. FLETCHER,
                                              Appellant

                                             v.

    PERRY PHELPS, individual and official capacities; MARK RISPOLLI, individual and
     official capacities; GLADYS LITTLE, Sgt. individual and official capacities; BRIAN
                          REYNOLDS, individual and official capacities
                           ____________________________________

                      On Appeal from the United States District Court
                                for the District of Delaware
                         (D. Del. Civil Action No. 12-cv-00489)
                       District Judge: Honorable Sue L. Robinson
                       ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   November 17, 2015
               Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                            (Opinion filed: December 21, 2015)
                                       ___________

                                        OPINION *
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Timothy Fletcher, a Delaware state prisoner proceeding pro se, appeals an order of

the United States District Court for the District of Delaware granting Sergeant Gladys

Little’s motion for summary judgment on his failure-to-protect claim and dismissing his

equal protection claim. We will affirm, but on different grounds than the District Court.

See Blunt v. Lower Merion Sch. Distr., 767 F.3d 247, 265 (3d Cir. 2014) (noting court

may affirm on any basis supported by the record).

       The record reflects that in late December 2011 Fletcher complained that his

cellmate was harassing him because he is a homosexual. As a result, Fletcher was moved

to a different cell. Fletcher then told Sergeant Little that he feared for his life because his

new cellmate was harassing him on the same basis. Little told Fletcher that he must ask a

lieutenant to be moved. She also told him that he should not taunt other inmates and that

he should avoid places in the recreation yard where staff could not see him. Little also

spoke to Fletcher’s cellmate and her supervisor. Fletcher reported to other correctional

officers that his cellmate was threatening him and requested protective custody, a more

restrictive type of confinement designed to keep inmates safe. On or about January 2,

2012, Fletcher was moved to protective custody.

       On the night of January 7, 2012, Fletcher told Little that his new cellmate, Kevin

Wilkerson, was making fun of him due to his sexual orientation, that he did not like

Wilkerson, and that he wanted to be moved. Sergeant John Goldman and Officer David

Alston then told Little that Fletcher and Wilkerson were “bickering.” Sometime between

10:00 and 11:00 p.m., Little interviewed both men separately outside of their cell.

Fletcher states that Little was told that Wilkerson was touching him and harassing him for

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sex. According to Little, Fletcher said that he was afraid of Wilkerson and that he feared

that Wilkerson would try to rape him. Wilkerson said that he was afraid of Fletcher

because Fletcher was harassing him for sex. Little told them each to stop bickering or

they would have to go to isolation. Both men agreed to stop arguing. 1

       According to an incident report prepared by Little, at 1:30 a.m., when she and

Officer Keith Burns were checking the area, Fletcher told her that Wilkerson was

harassing him for sex. Wilkerson stated that Fletcher was harassing him. Little told both

men that if their conduct continued, she would move them to isolation. They told Little

that they would stop. Thereafter, both inmates went to sleep.

       At 3:21 a.m., during medication rounds, Officer Jeffery Holcomb saw that

Wilkerson had cuts and scratch marks on his face. Wilkerson told Holcomb that he had

fallen when jumping off his bunk bed. Fletcher had no visible injuries. A disciplinary

hearing was held, and Fletcher was found guilty of assault, disorderly or threatening

behavior, and fighting, and sanctioned to 30 days in isolation. The disciplinary hearing

decision reflects that Fletcher said that he and Wilkerson were fighting, but that he did

not hit Wilkerson in the face. Fletcher, however, attests that Wilkerson tried to rape him

and that he defended himself. Fletcher asserted in grievances that staff failed to do

anything when he reported Wilkerson’s advances.



1
 Contrary to Little’s affidavit, Goldman and Alston, who were present when the inmates
were questioned, attest that Fletcher said that he wanted to be moved to a single cell
because he did not like Wilkerson. We have viewed the facts in a light most favorable to
Fletcher. Monroe v. Beard, 536 F.3d 198, 206 (3d Cir. 2008) (per curiam).

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       Fletcher filed a complaint in District Court, which he later amended, claiming that

Little failed to protect him in violation of his Eighth Amendment rights and discriminated

against him based on his sexual orientation in violation of the Equal Protection Clause. 2

Following discovery, the District Court granted summary judgment in favor of Little on

Fletcher’s Eighth Amendment claim and dismissed his equal protection claim as

frivolous pursuant to 28 U.S.C. § 1915(e). This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over orders granting summary judgment. Blunt, 767 F.3d at 265. We review the

dismissal of Fletcher’s equal protection claim under § 1915(e) for abuse of discretion,

although we exercise plenary review over issues of law. Deutsch v. United States, 67

F.3d 1080, 1083 (3d Cir. 1995).

       To establish an Eighth Amendment violation based on a failure to prevent harm,

an inmate must show (1) that he was incarcerated under conditions posing a substantial

risk of serious harm; and (2) that a prison official was deliberately indifferent to his

safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). “Deliberate indifference” is a

subjective standard. See id. at 837. A prison official must know of and disregard an

excessive risk to inmate health or safety. Id.

       The District Court decided that a reasonable jury could conclude that Little was

subjectively aware of a substantial risk of harm to Fletcher based on her knowledge




2
Fletcher had brought claims against other defendants, which he did not pursue or the
District Court dismissed pursuant to 28 U.S.C. § 1915(e). These claims are not at issue.
                                              4
that he feared that he would be assaulted, her advice to him regarding his fears, and the

fact that she had asked her supervisor about changing his cell before he was moved to

protective custody. The District Court, however, held that no reasonable jury could find

that Little violated Fletcher’s Eighth Amendment rights because Little took reasonable

steps to prevent harm from occurring. See Farmer, 511 U.S. at 844 (stating that a prison

official who actually knew of a substantial risk to inmate safety may be found free from

liability if he responded reasonably to the risk).

       Fletcher argues on appeal that a jury should have decided his claim. We conclude

that summary judgment was not warranted on the question whether Little reasonably

responded to a risk of harm. There are discrepancies among the affidavits and incident

reports – particularly those prepared by Little – as to the conversations that transpired

between Fletcher and Little on January 7 and January 8, 2012. The record also reflects

that Fletcher told Little that Wilkerson was harassing him for sex not only when she

questioned him outside his cell, but also later on her rounds. Little responded both times

by threatening time in isolation. If we were to agree with the District Court that Little

was aware of a substantial risk of harm to Fletcher, the reasonableness of Little’s

response would be a factual question for a jury. See Hamilton v. Leavy, 117 F.3d 742,

748-49 (3d Cir. 1997) (reasonableness of response by defendants who were aware of

inmate’s risk of harm was question for the jury).

       We cannot conclude, however, that there is an issue of fact as to whether Little

was aware of a substantial risk of harm to Fletcher. The Supreme Court did not address

in Farmer “[a]t what point a risk of inmate assault becomes sufficiently substantial for

                                              5
Eighth Amendment purposes,” 511 U.S. at 834 n.3, but the evidence in this case falls far

short of establishing that Little was aware of a substantial risk of harm. This is not a case

where a prisoner who was vulnerable to attack remained in the general population. See

Hamilton, 117 F.3d at 747-48 (summary judgment improper on question of official’s

knowledge of risk where inmate had a history of being assaulted, had been labeled a

“snitch,” and was placed in the general population despite a recommendation to the

contrary). Rather, Fletcher requested and was placed in protective custody when he

reported that a cellmate had threatened him.

       Although an official may be deliberately indifferent to a risk of harm in protective

custody, Bistrian v. Levi, 696 F.3d 352, 368 (3d Cir. 2012), there is scant evidence

reflecting that was the case here. The only evidence supporting a conclusion that

Fletcher was at risk of harm consists of his own statements prior to the altercation that

Wilkerson touched him and harassed him for sex. Even if it can be inferred that Fletcher

was at greater risk of harm than other inmates due to his sexual orientation, the evidence

is insufficient to show that Little was aware of a substantial risk of harm. See Beers-

Capitol v. Whetzel, 256 F.3d 120, 140 (3d Cir. 2001) (summary judgment warranted

where defendant knew of allegations of harm but there was no evidence that the

defendant believed the allegations or that the evidence surrounding the allegations was so

strong that he must have believed them likely to be true); see also Bistrian, 696 F.3d at

669-70 (noting that prisoners may feign a fear of harm and distinguishing pleadings

alleging unadorned claims of danger from allegations that officials put an inmate in



                                               6
danger by seeking his help in an investigation and then failing to protect him from

retaliation).

       We note that during discovery Fletcher sought but was denied access to

Wilkerson’s prison disciplinary history related to sexual misconduct. However, even if

Wilkerson had such a history, there is no indication that such evidence would have

supported his claim of deliberate indifference against Little. Little stated in her discovery

responses that she was not aware of any such disciplinary records. Little also attested

that before this incident she had no personal knowledge that Wilkerson engaged in fights

with other inmates or that he harassed or threatened Fletcher or any other inmate. Little

stated that she believed that Wilkerson was a peaceful inmate, a view that was also held

by Officer Alston.

       Fletcher also appeals the dismissal of his equal protection claim, but we agree, for

substantially the reasons stated by the District Court, that dismissal was warranted. To

the extent Fletcher appeals the District Court’s denial of his requests for appointment of

counsel and certain discovery motions, he has not shown that the District Court abused its

discretion.

       Accordingly, we will affirm the judgment of the District Court.




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