NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 18-3233 _______________

SHARIF JONES, Appellant

v.

SHAWN TREECE, (Correctional Officer); KELLER, (G-block) Correctional Officer; THOMAS JENKINS, (G-block) Correctional Officer; BROOKS, Sergeant, (G-Block) Correctional Officer; SERGEANT RENNER; LIEUTENANT DEPHILLIPS, all defend- ants are being sued in their individual and/or official capacities. _______________

On Appeal from the United States District Court for the Western District of Pennsylvania No. 2-16-cv-01453 Magistrate Judge: Hon. Maureen P. Kelly _______________

Argued: May 1, 2019 _______________

Before: RESTREPO, PORTER, and FISHER, Circuit Judges.

(Filed: May 20, 2019) Amy McCrossen [Argued] Jordan Winslow [Argued] Duquesne University School of Law 600 Forbes Avenue Pittsburgh, PA 15219

Adrian N. Roe Roe & Simon 428 Boulevard of the Allies Pittsburgh, PA 15219

Counsel for Plaintiff-Appellant Sharif Jones

Brandon M. Eberle Santicola Steele & Fedeles 722 Turnpike Street Beaver, PA 15009

Counsel for Defendant-Appellee Shawn Treece

Derek J. Illar [Argued] Taylor Brailey Eckert Seamans Cherin & Mellott 600 Grant Street 44th Floor, U.S. Steel Tower Pittsburgh, PA 15219

Counsel for Defendant-Appellee Thomas Jenkins

Kevin T. Freyder Suite 102 60 West High Street Waynesburg, PA 15370

Counsel for Defendant-Appellee Donald Keller

______________

OPINION ______________

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

2 PORTER, Circuit Judge.

Prisoner Sharif Jones claims that three state corrections officers forced him to watch

pornography, violating his Eighth Amendment rights, and sued them under

. The Magistrate Judge granted summary judgment for the officers. We will affirm.

I

In 1993, Jones was sentenced to life without parole for committing first-degree mur-

der and armed robbery in the Philadelphia area. As of early 2016, Jones was jailed at the

State Correctional Institution in Greene, Pennsylvania. In his initial pro se complaint, Jones

claimed that while he was incarcerated at SCI-Greene, corrections officers forced him to

watch pornographic videos and perform sexual acts on them and himself. Jones asserted

federal constitutional claims against the six officers allegedly involved. The Magistrate

Judge appointed pro bono counsel and the parties moved forward with discovery. About

nine months later, the officers moved for summary judgment.

In the face of these motions for summary judgment, Jones dropped three defendants

and narrowed his claims dramatically, limiting them to an Eighth Amendment conditions-

of-confinement claim against three officers—Shawn Treece, Donald Keller, and Thomas

Jenkins—for “deliberate indifference to his mental health in subjecting him to these por-

nographic materials.” J.A. 415–16 n.2. The Magistrate Judge granted summary judgment

for the officers, and Jones appealed.1

1 This civil action involves a federal question, so the Magistrate Judge had jurisdiction under

. The parties voluntarily consented to having a magistrate judge conduct proceedings, satisfying

(c)(l). We have appellate jurisdiction under

3 II

The Magistrate Judge granted summary judgment for the officers for two reasons.

First, she found that Jones’s Eighth Amendment conditions-of-confinement argument was

a new claim first raised in response to the officers’ motions for summary judgment (rather

than pleaded in his complaint), so he did not properly plead it. Second, even if Jones

properly pleaded his Eighth Amendment allegation, the Magistrate Judge held that this

claim failed because of insufficient evidence. The Magistrate Judge was correct on both

issues.

Starting with the first point, a plaintiff generally “may not amend his complaint

through arguments in his brief in opposition to a motion for summary judgment.” Shanahan

v. City of Chicago,

(7th Cir. 1996). In briefing, Jones concedes that he

“did not specifically, by name, allege an inhumane conditions of confinement action until

he obtained advice of counsel.” Appellant’s Br. 13.2 But Jones argues that this failure

should be forgiven because his pro se complaint should be liberally construed to include

this claim. Jones is correct that a pro se litigant’s pleadings are liberally construed. Higgs

v. Att’y Gen.,

, 339 (3d Cir. 2011). But “[l]iberal pleading does not require

that, at the summary judgment stage, defendants must infer all possible claims that could

. “We exercise plenary review over a district court’s order granting sum- mary judgment, applying the same standard as the district court.” Young v. Martin,

(3d Cir. 2015). 2 In one paragraph, under the heading “legal claims,” the complaint alleges “sexual harass- ment, sexual assault, cruel and unusual punishment, failure to protect, excessive force, and violation of due process,” which violated “due process under [the] Fourth, Eighth and Four- teenth Amendments of the United States Constitution.” J.A. 40–41.

4 arise out of facts set forth in the complaint.” Gilmour v. Gates, McDonald & Co.,

(11th Cir. 2004). And in fact, while Jones filed his complaint pro se, he was

later represented by counsel—who declined to amend the handwritten complaint in the

nine months between appointment and summary judgment.

Second, even overlooking any pleading issues and considering Jones’s claims on

the merits, the officers were entitled to summary judgment because Jones did not provide

evidence of an Eighth Amendment violation. An Eighth Amendment claim against a prison

official must meet two requirements: (1) “the deprivation alleged must be, objectively, suf-

ficiently serious”; and (2) the “prison official must have a sufficiently culpable state of

mind.” Beers-Capitol v. Whetzel,

(3d Cir. 2001) (quoting Farmer v.

Brennan,

(1994)). “In prison conditions cases, ‘that state of mind is one

of “deliberate indifference” to inmate health or safety.’”

(quoting Farmer,

). Jones did not provide evidence supporting either requirement.

On the serious-deprivation requirement, the Magistrate Judge noted that Jones failed

to support this allegation “with citations to any specific evidence or expert opinion.” J.A.

22. Without that authority, the court could only “speculate as [to] the nature and degree of

harm exposure to pornography might cause, and whether under the circumstances alleged,

deliberately exposing [Jones] to pornography subjected him to unreasonably harmful con-

ditions of confinement.” J.A. 22. On the state-of-mind requirement, the Magistrate Judge

determined that Jones did not establish that the officers “subjectively knew of the risk of

5 substantial harm to [Jones’s] mental health caused by sexual harassment in the form of

exposure to a pornographic video.” J.A. 23.

Jones’s complaint and summary judgment response show that the Magistrate Judge

was right on both counts. In the complaint, Jones alleges that “[s]everal times,” officers

“forced [Jones] to watch a pornographic DVD.” J.A. 32–33. Jones’s summary judgment

response is more detailed, but similarly bereft of evidence on the conditions-of-confine-

ment claim. As the Magistrate Judge rightly held, the evidence in the response, “while

certainly sufficient to establish that the alleged exposure to pornography served no peno-

logical interest, fails to raise a genuine issue of material fact as to either required element

of his claim.” J.A. 22. Thus, even crediting Jones’s summary judgment response as having

advanced his conditions-of-confinement claim, he still did not provide any evidence to

support it.

*****

In sum, Jones improperly raised his Eighth Amendment conditions-of-confinement

claim in his summary judgment response. And even if we consider this claim properly

pleaded, he did not support it with evidence—despite taking the officers’ depositions and

engaging in extensive discovery—so it fails. We will affirm the Magistrate Judge’s order

granting summary judgment for the officers.

6