NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-2295 ___________

BRIAN C. MOORE, Appellant

v.

ANGELA D. MANN, individually and in their official capacities; RENEE FOULDS, individually and in their official capacities; HERING; BRINER; SGT. ZAMBONI, individually and in their official capacities; DAVID VARANO, individually and in their official capacities; LIEUTENANT LONG, individually and in their official capacities; JOHN E. WETZEL, individually and in their official capacities ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3-13-cv-02771) District Judge: Honorable Matthew W. Brann ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 8, 2019

Before: MCKEE, COWEN, and ROTH, Circuit Judges

(Opinion filed: August 14, 2020) ___________

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

Pro se appellant Brian C. Moore, a Pennsylvania state prisoner proceeding in

forma pauperis, appeals from the District Court’s order granting summary judgment to

the remaining defendants in a civil rights action he filed pursuant to

.

For the reasons discussed below, we will vacate the District Court’s order and remand for

further proceedings consistent with this opinion.

I.

Moore’s complaint alleged that, in 2011, he witnessed his former counselor at

SCI-Coal Township, defendant Angela Mann, engaging in inappropriate sexual contact

with other inmates. Shortly thereafter, Mann and other corrections defendants allegedly

began making inflammatory statements about Moore, calling him a pedophile, gay, and a

snitch.1 Moore claimed that the defendants violated his Eighth Amendment rights by

making these statements to other inmates, thereby placing him in a class of vulnerable

inmates that are frequently subject to assault. Moore also raised other claims stemming

from his allegations that the defendants filed a false misconduct against him, resulting in

a sanction of 270 days in the Restricted Housing Unit, and lost prison wages for that time

period.

1 Moore is a convicted sex offender. He filed a prison grievance related to the alleged misconduct by Mann and the other defendants. 2 The defendants filed a motion to dismiss, which the District Court granted in part.

The District Court dismissed all claims against defendants Varano, Wetzel, and Long for

failure to plead their personal involvement; all claims against all defendants in their

official capacities for monetary damages, because the claims were barred by the Eleventh

Amendment; all state law tort claims because they were barred by sovereign immunity

under state law; all due process claims, because Moore’s sanction of 270 days’

disciplinary confinement and loss of prison wages were insufficient legal interests to

trigger due process protection; and all claims based on the violation of criminal statutes

and Department of Corrections regulations, as the alleged violation of those statutes and

regulations did not state a claim under

The District Court denied the

motion to dismiss with respect to Moore’s Eighth Amendment failure-to-protect claim

against the defendants who allegedly disparaged Moore and discussed his criminal

history, including defendants Mann, Foulds, Hering, Briner, and Zamboni.

After discovery, the remaining defendants moved for summary judgment. All of

the remaining defendants categorically denied that they discussed Moore’s criminal

history with other inmates. Defendant Long added that he interviewed all staff members

connected with Moore’s grievance, and that none were aware of Moore’s allegations.

2 We do not address these claims further, as Moore does not challenge the order granting the motion to dismiss in part. United States v. Pelullo,

(3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.”). 3 Additionally, an investigation by the Office of Special Investigations and Intelligence,

independent of the grievance process, did not substantiate most of Moore’s claims,

although Moore did state in that investigation that Mann was labeling him a snitch and

openly discussing his criminal history.

Moore opposed the summary judgment motion with his affidavits, an affidavit

from a fellow inmate named Terry Shay, the defendants’ responses to his interrogatories,

and his administrative grievance records. Moore’s affidavits state that he overheard the

defendants calling him a snitch, gay, and a pedophile in front of other inmates, and that,

as a result, other inmates at SCI-Coal Township threatened him with bodily harm in 2011

and 2012. After he transferred to SCI-Smithfield, he encountered the same threats in

2013 and 2014 because a number of inmates were transferred from SCI-Coal Township

to SCI-Smithfield. In his brief in opposition to the summary judgment motion, Moore

added that those threats have materialized. He stated he was assaulted by inmates at SCI-

Coal Township and SCI-Smithfield, though he did not describe those assaults or state that

he suffered any physical injuries. Shay’s affidavit similarly states that the defendants

openly discussed Moore’s criminal history, and that inmates at SCI-Smithfield have

threatened Moore as a result.

At least one interrogatory response, from defendant Angela Mann, states that

disparaging an inmate regarding his criminal history is prohibited under Department of

Corrections policy. The grievance records indicate that Moore informed at least

4 defendant Foulds that other defendants, including Mann, were placing him in danger by

discussing his criminal history with other inmates. And one of Moore’s affidavits states

that he informed Foulds of this information around September 2011.

The Magistrate Judge recommended denying the motion for summary judgment.

The District Court rejected the recommendation, and granted the motion for summary

judgment. The District Court determined that although there was a genuine issue of

material fact regarding whether the defendants actually told other inmates that Moore was

gay, a pedophile, or a snitch, Moore had not submitted any facts from which a jury could

find that the defendants knew of and disregarded the risk of serious harm that those

statements would create. This appeal ensued.

II.

We have jurisdiction under

, and exercise plenary review over

the District Court’s order granting summary judgment. See Blunt v. Lower Merion Sch.

Dist.,

(3d Cir. 2014). Summary judgment is proper when, viewing the

evidence in the light most favorable to the nonmoving party and drawing all inferences in

favor of that party, there is no genuine dispute 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. Cty. of

Bucks,

, 422-23 (3d Cir. 2006).

5 III.

The Eighth Amendment protects prisoners from violence at the hands of others, as

“[b]eing violently assaulted in prison is simply not ‘part of the penalty that criminal

offenders pay for their offenses.’” Farmer v. Brennan,

(1994) (quoting

Rhodes v. Chapman,

(1981)). “This constitutional limitation on

punishment has been interpreted to impose a duty upon prison officials to take reasonable

measures to protect prisoners from violence at the hands of other prisoners.” Hamilton v.

Leavy,

(3d Cir. 1997) (quotation marks and citations omitted). To

succeed on a failure-to-protect claim, a plaintiff must show: (1) a substantial risk of

serious harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.

See

. A prison official is deliberately indifferent to a substantial risk of serious

harm if the official “knows of and disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.” Farmer,

.

Here, the District Court erred in finding that Moore has not submitted any facts

suggesting deliberate indifference by the defendants. See Higgs v. Att’y Gen. U.S.,

, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant’s

pleadings is well-established.”). As discussed below, Moore certainly submitted some

facts in support of that claim, and we conclude that those facts show a genuine dispute

6 regarding whether the defendants were deliberately indifferent to the risk of telling other

inmates that Moore was gay, a pedophile, or a snitch.3

The District Court did not consider the contextual and circumstantial evidence that

Moore presented. See Hamilton,

(“A prison official's knowledge of a

substantial risk is a question of fact and can, of course, be proved by circumstantial

evidence.”) (citing Farmer,

). We have previously noted that the sex

offender label is stigmatizing in the prison context, and that prison norms may call for the

assault of sex offenders. See Renchenski v. Williams,

(3d Cir. 2010).

Similarly, other circuits have held that prison officials’ failure to protect an inmate

labeled a “snitch” constitutes deliberate indifference. See Irving v. Dormire,

(8th Cir. 2008) (“After all, who better knows the opprobrium and consequent

effect thereof that attaches to the label of snitch than those who work daily within the

inmate population.”); Benefield v. McDowall,

(10th Cir. 2001);

Northington v. Marin,

(10th Cir. 1996).

Here, Moore’s and Shay’s affidavits articulate those prison norms, and suggest the

defendants’ awareness of them. The affidavits state that the defendants created a risk of

serious harm by discussing Moore’s criminal history with other inmates, who have both

threatened to assault, and assaulted, Moore. In addition, Moore’s affidavit and the

3 The parties do not dispute that there is a genuine issue of material fact whether the defendants actually made these statements to other inmates. 7 grievance records indicate that he communicated the risk of harm to at least defendant

Foulds. See Bistrian v. Levi,

(3d Cir. 2012) (deliberate indifference

prong of failure-to-protect claim was stated based on fact that plaintiff advised defendants

of risk of assault by fellow inmate). And the discovery response from defendant Mann

states that there is a policy which prohibits prison officials from disparaging an inmate

regarding his criminal history. While a knowing violation of a prison policy, standing

alone, might not provide sufficient evidence of a constitutional violation, cf. Longoria v.

Texas,

, 593 n.9 (5th Cir. 2006), when combined with the other evidence in

this record, it may provide circumstantial evidence to support a finding of deliberate

indifference here.

The defendants argue that Moore has not shown that he was assaulted or suffered

any harm. But an inmate need not wait until an actual attack occurs to obtain relief. See

Helling v. McKinney,

(1993); Betts v. New Castle Youth Dev. Ctr.,

(3d Cir. 2010); see also Benefield

(inmate allegations

that officer labeled him a snitch in front of other inmates, even though inmate had not in

fact been assaulted, stated a claim under Eighth Amendment). Here, there is at least a

genuine issue of material fact whether the risk of assault was serious, and whether Moore

showed a sufficient likelihood that such injury will result from the defendants’ conduct.

Cf. Betts,

.

8 The defendants also argue that Moore is prevented from recovering compensatory

damages for mental and emotional injuries because he has not shown that he suffered any

physical injuries from any assault. See Mitchell v. Horn,

(3d Cir.

2003) (holding that 42 U.S.C. § 1997e(e) requires a “less-than-significant-but-more-than-

de minimis physical injury as a predicate to allowing the successful pleading of an

emotional injury”) (citations omitted). But while Moore has not specifically described

his injuries, he does state that he was assaulted on at least two occasions. Thus, we

conclude—construing his pro se pleadings liberally and in the light most favorable to him

as the nonmoving party—that whether he was assaulted and whether he suffered any

physical injuries are live questions.4

Accordingly, we will vacate the judgment of the District Court in part, see supra

n.2, and remand for further proceedings consistent with this opinion.

4 Of course, if he is unable to show a sufficient physical injury at trial, then 42 U.S.C. § 1997e(e) would apply. We note that even under that scenario, he could still seek injunctive relief, nominal damages, and punitive damages without showing such a physical injury. See Mitchell,

. 9