ALD-222                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-1177
                                      ___________

                                 WALTER V. HARRIS,
                                             Appellant

                                             v.

                          FEDERAL BUREAU OF PRISONS
                       ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Action No. 16-cv-00049)
                    District Judge: Honorable Susan Paradise Baxter
                      ____________________________________

       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 27, 2019

               Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges

                              (Opinion filed: July 25, 2019)
                                      _________

                                        OPINION *
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Walter V. Harris appeals from the final judgment of the United States District Court

for the Western District of Pennsylvania entered in his lawsuit under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 1364(b), 2671 et seq. We will affirm the judgment.

       Harris filed his pro se FTCA complaint against the Federal Bureau of Prisons

(“BOP”). The District Court’s 1 memorandum opinion contains a detailed account of the

background, stipulations, and findings of fact based on the evidence presented at trial. Be-

cause the parties are familiar with the case, we provide only a summary. This case concerns

a slip-and-fall injury that Harris sustained during his incarceration at the Federal Correc-

tional Institution-McKean (“FCI-McKean”) at Lewis Run, Pennsylvania. In his complaint,

Harris alleged that, on the morning of December 12, 2013, while walking from his cell

block to the dining hall, he slipped and fell on a negligently maintained walkway. Accord-

ing to Harris, it had snowed the prior evening, and the prison snow removal crew failed to

clear the walkway of compacted snow and ice, creating a dangerous condition. He alleged

that the BOP failed to supervise the snow removal in a proper manner. He further alleged

that the BOP had notice of the dangerous condition because it was visible to prison guards

walking on the walkway and watching by video. As a result of his fall, Harris fractured

his ankle and required surgery for the insertion of a plate and screws.




1
  The parties consented to having a United States Magistrate Judge exercise jurisdiction
pursuant to 28 U.S.C. § 636. Following trial but before issuance of judgment, the presid-
ing Magistrate Judge was elevated to the position of United States District Judge.
                                             2
       In February 2016, Harris filed his pro se complaint under the FTCA. The BOP filed

a motion for summary judgment, which was denied. The matter proceeded to a non-jury

trial, at which Harris appeared and testified by videoconference. 2 Harris testified that the

walkway between his housing unit and the dining hall was snow-covered and slippery on

the morning of December 12, 2013. He stated that he slipped and fell backwards on the

middle of the walkway on his way to breakfast. Further, he stated that he never stepped in

the grass while walking, noting that the accumulated snowfall next to the walkway was

four-to-five inches deep. Harris stated that two other inmates walking behind him saw him

fall, and the inmates helped him to the medical department. In contrast, Timothy Newman,

a Correctional Officer at FCI-McKean at the time of Harris’s fall, testified that he super-

vised the snow removal crew early that same morning, walked all of the walkways to iden-

tify any unsafe areas, inspected the snow removal crew’s shoveling and spreading of salt

and sand where needed, and found no dangerous conditions on the walkways upon com-

pletion of the work. Newman also stated that he received no reports of any dangerous

walkway conditions that morning, and he stated that inmates are only permitted to walk on

the walkways, not on the grass, regardless of the season. Diane Kengersky Miller, a phy-

sician assistant at FCI-McKean, testified that she conducted an injury assessment of Harris

after his fall, and she documented that Harris told her that he twisted his ankle as he walked

in the grass/snow, because the sidewalk was slippery. In addition to the testimony pre-

sented by the parties, the trial evidence included the National Weather Service local


2
 In 2012, while at FCI-McKean, Harris was diagnosed with Becker muscular dystrophy
and was transferred for medical treatment at FCI-Butner in North Carolina.
                                              3
conditions reports for early to mid-December 2013, and Harris’s inmate injury assessment

documented by Miller in the BOP electronic medical record.

       After considering the evidence, the District Court found that Harris’s testimony as

to the weather conditions and the amount of snow on the ground was not credible, as it was

contradicted by Newman’s testimony and the National Weather Service reports. The Dis-

trict Court also noted the conflicting testimony concerning Newman’s presence or absence

at the scene where Harris fell, and concerning whether Harris had told Miller that he had

fallen while walking in the grass and snow instead of on the walkway. Ultimately, the

District Court concluded that Harris failed to establish that the BOP breached a duty of

care owed to him and thus failed to establish his claim for negligence under the FTCA.

Harris appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Harris has been

granted in forma pauperis status under 28 U.S.C. § 1915, we review this appeal for possible

dismissal in accordance with § 1915(e)(2)(B). We may summarily affirm under Third Cir-

cuit LAR 27.4 and I.O.P. 10.6 if no substantial question is presented on appeal.

       In an appeal of a final judgment after a bench trial, we exercise plenary review over

the District Court’s legal conclusions. Colliers Lanared & Axilbund v. Lloyds of London,

458 F.3d 231, 236 (3d Cir. 2006). We review findings of fact for clear error, and “due

regard must be given to the trial court’s judgment as to the credibility of the witnesses.”

Id. (citing Fed. R. Civ. P. 52(a)). Pennsylvania law governs Harris’s negligence claim un-

der the FTCA. See 28 U.S.C. § 1346(b); DeJesus v. United States Dep’t of Veterans Af-

fairs, 479 F.3d 271, 279 (3d Cir. 2007). In Pennsylvania, a plaintiff in a negligence action

                                             4
must demonstrate (1) that the defendants owed him a duty or obligation recognized by law;

(2) a breach of that duty; (3) a causal connection between the conduct and the resulting

injury; and (4) actual injury. See Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139

(3d Cir. 2005). The BOP must exercise ordinary diligence in keeping prisoners safe and

free from harm. See 18 U.S.C. § 4042.

       Because Pennsylvania law recognizes inmates as invitees, see Graf v. County of

Northampton, 654 A.2d 131, 134 (Pa. Commw. 1995), Harris had to show that the BOP

(1) knew of the dangerous walkway condition or would have discovered it by the exercise

of reasonable care, and should have realized that it posed an unreasonable risk of harm;

(2) should have expected that Harris would not discover the danger or would have failed

to protect himself against it; and (3) failed to exercise reasonable care to protect Harris

from the danger. See Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). Further, Harris

had to show that the prison either contributed to creating the harmful condition or had

actual or constructive notice of the condition. See Estate of Swift v. Northeastern Hosp.

of Phila., 690 A.2d 719, 722 (Pa. Super. 1997).

       Based on the testimony by Newman and Miller, along with Miller’s medical record

notes, the District Court found that Harris failed to establish by a preponderance of the

evidence that he was walking on the walkway when he fell. Though Harris testified that

his fall on the walkway was witnessed by at least two other inmates, he produced no evi-

dence in support. In addition, the District Court found that, even assuming that Harris did

fall on the walkway, Harris failed to establish the presence of a dangerous condition, or

that prison staff either created or had actual or constructive notice of a harmful condition,

                                             5
to trigger a duty on the part of the United States. The District Court credited Newman’s

testimony concerning his personal observations during the early morning hours of Decem-

ber 12, 2013, the walkways were clear, and that no one had notified prison staff to the

contrary.

       Upon review of the record, which includes the trial transcript, we discern no clear

error in the District Court’s findings of fact and no error in making its legal conclusions.

Because no substantial question is presented by this appeal, we will summarily affirm the

judgment of the District Court.




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