CLD-289                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-4203
                                  ___________

                               COREY BRACEY,
                                         Appellant

                                        v.

   PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SUPERINTENDENT
 GRATERFORD SCI; DEPUTY BRYANT; MAJOR GILLMORE; MAJOR SUTTER;
   CAPTAIN WHITE; CAPTAIN FRONZ; CAPTAIN MORROW; LIEUTENANT
   CALDWELL; LIEUTENANT VINCENT; LIEUTENANT DEAL; SERGEANT
    WOLFE; CORRECTION OFFICER STAFFORD; MAXINE OVERTON; DR.
     ROMAN; MENTAL HEALTH MANAGEMENT; WILLIAM WOODS; E.
BROWNLEE, GR-9693;CORRECTION OFFICER HARMON; LIEUTENANT IRWIN;
                         SERGEANT RUFF
               ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civil No. 1-11-cv-00004)
                    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 26, 2014
          Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                          (Opinion filed: July 2, 2014 )
                                  _________

                                   OPINION
                                   _________

PER CURIAM
       Corey Bracey, a Pennsylvania prisoner proceeding pro se, appeals from the

District Court’s order granting the defendants’ motion for summary judgment. After

careful review of the record, we conclude that this appeal does not present a substantial

question. Therefore, we will summarily affirm.

       On September 14, 2010, and again on February 2, 2011, Bracey was attacked by

other inmates while in the exercise yard of the Restricted Housing Unit (RHU) at SCI-

Albion. In his complaint, he alleged that Department of Corrections (DOC) officials and

employees failed to protect him from those assaults, retaliated against him after he filed

grievances related to conditions in the RHU, and destroyed evidence concerning his

claims. He also brought state law tort claims for assault and battery, and medical

malpractice. The defendants filed a motion for summary judgment, which a Magistrate

Judge recommended granting. In particular, the Magistrate Judge concluded that the

evidence failed to demonstrate that the defendants were deliberately indifferent to a

serious risk of harm, and found that the issuance of misconducts and denial of privileges

were unrelated to the filing of grievances.1 Over Bracey’s objections, the District Court



1
  In addition, to the extent that Bracey sought to impose liability based solely on the
defendants’ supervisory role, the Magistrate Judge properly recommended rejecting his
claims. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The Magistrate
Judge also correctly concluded that Bracey failed to point to evidence in the record
demonstrating that the defendants conspired to destroy videotapes related to the first
assault. According to the defendants, the videotapes were not “preserved by being
burned to a disc before the cameras re-recorded over those incidents.” Bracey has not
pointed to any disputed material facts suggesting that the re-recording of the videotapes
was unconstitutional, and he also failed to allege facts plausibly suggesting an illicit
agreement. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993)
(stating that to demonstrate the existence of a conspiracy under § 1983, “a plaintiff must
                                             2
adopted the Magistrate Judge’s Report and Recommendation, declined to exercise

supplemental jurisdiction over the remaining state law claims, Borough of W. Mifflin v.

Lancaster, 45 F.3d 780, 788 (3d Cir. 1995), and granted the defendants’ motion for

summary judgment. Bracey appealed.

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

over the entry of summary judgment. Doe v. Luzerne Cnty., 660 F.3d 169, 174 (3d Cir.

2011). In doing so, we draw all reasonable inferences from the record in favor of the

non-moving party and will affirm if there is no genuine issue as to any material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).

       We conclude that summary judgment was properly granted to the defendants on

Bracey’s failure to protect claims.2 The Eighth Amendment imposes “a duty upon prison


show that two or more conspirators reached an agreement to deprive him or her of a
constitutional right under color of law.”).
2
  We likewise hold that Bracey failed to show a genuine issue of material fact to the
extent that he alleged that the correction officers failed to intervene in the assault. See
Bistrian v. Levi, 696 F.3d 353, 371 (3d Cir. 2012) (holding that a corrections officer who
fails to intervene in an assault may be liable if the officer had “a realistic and reasonable
opportunity to intervene” and “simply refused to do so” (quoting Smith v. Mensinger,
293 F.3d 641, 650-51 (3d Cir. 2002))). According to a report of the incident, a fight was
“called” at 8:40, “immediately several responding officers arrived to assist, the yard
enclosure was entered[,]” and the armed assailant was secured by 8:44. See Odom v.
S.C. Dep't of Corr., 349 F.3d 765, 773 (4th Cir. 2003) (stating that “correctional officers
who are present when a violent altercation involving an armed inmate erupts and fail to
intervene immediately do not violate the Eighth Amendment if officers are unarmed,
unaware of a risk of harm prior to the altercation, and take reasonable steps to intervene
safely.”). Bracey did not dispute this sequence of events, nor did he allege that correction
officers could have reasonably intervened sooner.

                                             3
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

internal quotations omitted). To establish a failure to protect claim, inmates must

demonstrate that (1) they are “incarcerated under conditions posing a substantial risk of

serious harm”; and (2) the prison official acted with “deliberate indifference” to their

health and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). “[T]he official must

actually be aware of the existence of the excessive risk; it is not sufficient that the official

should have been aware.” Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001).

Actual knowledge can exist where “a substantial risk of inmate attacks was longstanding,

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

where “circumstances suggest that the defendant-official being sued had been exposed to

information concerning the risk and thus must have known about it.” Id. (quoting

Farmer, 511 U.S. at 842-43).

       In support of his failure to protect claim, Bracey relied on evidence indicating that

there had been several altercations at the SCI-Albion exercise yards prior to the date that

he was first assaulted.3 According to the Magistrate Judge, who reviewed in camera

prison reports provided by the defendants, there were nine such incidents at SCI-Albion

3
  It is undisputed, however, that there was no prior tension between Bracey and his
assailants, and Bracey did not allege that those assailants had a history of assaulting other
inmates. Cf. Bistrian, 696 F.3d at 368-71 (concluding that plaintiff stated plausible
failure to protect claim where he alleged, inter alia, that he had advised prison officials
that he had been threatened by a violent inmate who later attacked him); see also
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999) (stating
that a plaintiff cannot avoid summary judgment with speculation; he or she must provide
competent evidence from which a rational trier of fact can find in his or her favor).

                                               4
during the two years leading up to the initial attack on Bracey in September 2010, and no

incidents between then and February 2011, when Bracey was attacked for the second

time. This evidence fails to demonstrate that there was a pervasive or well-documented

substantial risk of inmate attacks, especially when the nine incidents are considered in the

context of the numerous exercise yards visits that occurred during the two-year period.

Moreover, the circumstances which allegedly caused a substantial risk of harm to Bracey

were not prevalent in the prior attacks.4 Finally, Bracey alleged that prison policy was

violated when correction officers (1) hired his assailant as a block janitor (a job which

provided the assailant with access to an item that was fashioned into a shank); (2) failed

to search the assailant’s cell every 30 days; (3) worked in the RHU for more than two

years, resulting in complacency and incompetence; (4) failed to pat-search or use a metal

detector on RHU inmates going to the exercise yards; (5) provided too few guards to

escort inmates on their way to the exercise yards; and (6) did not know their duties.

Contrary to his allegations, however, a violation of prison policy “is insufficient by itself

to support an argument for deliberate indifference[,]” Longoria v. Texas, 473 F.3d 586,

593 n.9 (5th Cir. 2006), and there is no evidence that a failure to follow prison policies

created a substantial risk of serious harm to Bracey.

4
  For instance, the September 2010 attack on Bracey involved an inmate who was able to
sneak a weapon in to the exercise yard after a prison official failed to recheck the inmate
for contraband following a strip search. Bracey, who was still handcuffed, was attacked
when his assailant’s handcuffs were removed. The assault in February 2011 occurred
when another inmate who was placed in the exercise yard with Bracey was able to free
one of his hands from the handcuffs, and used the handcuffs as a weapon. Only four of
the prior incidents occurred during the process of removing handcuffs from inmates
sharing an exercise yard, and none involved the use of a weapon.

                                              5
       Bracey also alleged that his First Amendment rights were violated when the

defendants retaliated against him for filing grievances related to alleged “dereliction of

safety precautions in the RHU.” Specifically, Bracey claimed that the defendants

identified him to other inmates as a snitch, issued false misconduct citations, and

withheld meals, grooming opportunities, and exercise yard privileges. A prisoner

alleging retaliation in violation of the First Amendment must show (1) that he engaged in

constitutionally protected conduct; (2) that an adverse action was taken against him by

prison officials sufficient to deter him from exercising his constitutional rights; and (3)

that there is a causal link between the exercise of his constitutional rights and the adverse

action taken against him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). We

conclude that the District Court properly held that there was no genuine issue of material

fact with respect to whether a causal connection existed between the exercise of Bracey’s

constitutional rights and the alleged adverse actions. The defendants demonstrated that

they issued the misconduct citations because of misbehavior by Bracey.5 See id. at 334

(holding that even if “a prisoner demonstrates that his exercise of a constitutional right

was a substantial or motivating factor in the challenged decision, the prison officials may

still prevail by proving that they would have made the same decision absent the protected


5
  On several occasions, Bracey was found guilty by a hearing examiner of refusing to
obey an order and using abusive, obscene, or inappropriate, language to an employee.
See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002) (“Given the quantum of
evidence of Carter’s misconduct, we cannot say that the prison officials’ decision to
discipline Carter for his violations of prison policy was not within the ‘broad discretion’
that we must afford them.”). The record also establishes that Bracey refused meals,
grooming opportunities, and exercise, not that they were withheld from him.

                                              6
conduct for reasons reasonably related to a legitimate penological interest.”).

Furthermore, we agree that no evidence in the record establishes a causal link between

Bracey’s grievances concerning security in the RHU and the defendants’ alleged labeling

of him as a snitch.6 Cf. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d

Cir. 2007) (holding, in a case involving alleged retaliation under the Individuals with

Disabilities Education Act, that to establish causal connection, a plaintiff must prove

either a suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, or a pattern of antagonism coupled with timing to establish a causal

link).

         For the foregoing reasons, we will summarily affirm the District Court’s order.




6
  As the Magistrate Judge noted, Bracey provided unsworn statements from two inmates
who stated that Bracey was rumored to be a snitch. But one of those inmates was not
housed as SCI-Albion and the other did not indicate when the defendants allegedly
identified Bracey as a snitch.
                                              7
