NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1152 __________

JOHN DALE PREACHER, Appellant

v.

MICHAEL D. OVERMYER; DEREK F. OBERLANDER; ERNESTO J. MONGELLUZO; ERIN IRELAND; P.A. ENNIS; CAPTAIN C. CARTER; LIEUTENANT DAVIS; LIEUTENANT DICKEY; BRUCE SIMON; MATHEW J. BLICHA; SHARON PRICE; LIEUTENANT HEFFERNAN; KATHLEEN HILL; KEVIN C. COWAN; SGT. J.H. CULVER; LT. R. WONDERLING; SGT. S. FREDERICKSON; C.O. B.J. LONG; C.O. B.J. BODDORF; C.O. C.J. FREY; C.O. SMALLS; C.O. BARNES; C.O. R.P. SMITH; C.O. J.D. REDDICK; C.O. M. BOOHER; C.O. G.W. HILER; C.O. WEISS; C.O. J.E. COLEMAN; C.O. FARCUS; KEVIN R. DITTMAN; CFSI L. WHISNER; SGT. M. GILARA; CRAIG HASPER; C.O. TERMINE; HOLLOWAY, Correctional Food Service ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1-17-cv-00018) Magistrate Judge: Honorable Richard A. Lanzillo ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) September 17, 2021

Before: MCKEE*, SHWARTZ and RESTREPO, Circuit Judges

(Opinion filed: May 19, 2023)

* Judge McKee assumed senior status on October 21, 2022. ___________

OPINION* ___________

PER CURIAM

Pro se appellant John Dale Preacher appeals from the District Court’s order

granting summary judgment to the defendants in this civil rights case. We will affirm the

District Court’s order in part, vacate in part, and remand for proceedings consistent with

this opinion.

I.

Preacher is a Pennsylvania prisoner who was formerly incarcerated at the State

Correctional Institution at Forest, Pennsylvania (SCI-Forest). In January 2017, Preacher

commenced an action pursuant to

against thirty-five employees of the

Pennsylvania Department of Corrections. In his amended complaint, Preacher claimed

that the defendants violated his rights under the First, Eighth, and Fourteenth

Amendments at various times between May 2015 and October 2016.

Following discovery, the defendants moved for summary judgment. The District

Court, acting through a Magistrate Judge on the parties’ consent, granted the motion on

the grounds that: Preacher failed to exhaust certain claims as required by the Prison

Litigation Reform Act; some of his claims were not premised on sufficient personal

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

2 involvement under

; and the remaining claims failed as a matter of law.

Preacher appeals.

II.

We have jurisdiction over this appeal pursuant to

. We exercise

plenary review over the District Court’s summary judgment ruling. See Blunt v. Lower

Merion Sch. Dist.,

(3d Cir. 2014). Summary judgment is appropriate

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

party “bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions” of the record which demonstrate the absence of a

genuine dispute of material fact. Celotex Corp. v. Catrett,

(1986). If

the moving party meets the initial burden of establishing that there is no genuine issue,

the burden shifts to the nonmoving party to “come forward with specific facts” showing

that there is a genuine issue for trial. See Santini v. Fuentes,

(3d Cir.

2015) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)).

III.

A.

Preacher’s primary argument on appeal concerns a “food incident” that took place

3 on March 28, 2016.1 Preacher contends that on that date, Corrections Officer Long

intentionally placed rusted metal objects in Preacher’s macaroni and cheese in retaliation

for his filing prior grievances. Preacher unknowingly bit down on the objects and injured

himself. Based on this incident, Preacher asserted a First Amendment retaliation claim

and an Eighth Amendment conditions-of-confinement claim.

We address the District Court’s disposition of the retaliation claim first. In order

to survive summary judgment on this claim, Preacher was required to put forth evidence

from which it could be inferred that, inter alia, “he suffered an adverse action at the hands

of the prison officials.” Rauser v. Horn,

(3d Cir. 2001) (quotation

marks omitted). In granting summary judgment to the defendants on this claim, the

District Court determined that Preacher failed to meet his burden because he had not

presented any evidence that Officer Long introduced the rusted metal objects into

Preacher’s food.

In doing so, the District Court failed to address Preacher’s statement in his

declaration that when Officer Long handed him his food tray, the officer said, “you[’re]

in the corner now where the camera can’t see . . . enjoy your last meal bitch boy.” Aff.

10, ECF No. 103-1. This statement created a genuine issue for trial as to whether Officer

Long tampered with Preacher’s meal. See Marino v. Indus. Crating Co.,

,

1 In the District Court, Preacher raised numerous additional claims. We will address only those claims that Preacher properly raised in his opening brief, for an issue is forfeited “unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.” Skretvedt v. E.I. DuPont De Nemours,

, 202–03 (3d Cir. 2004) (quoting Laborers’ Int’l Union v. Foster Wheeler Corp.,

(3d Cir. 1994)). 4 247 (3d Cir. 2004) (“[I]n considering a motion for summary judgment, a district court

may not make credibility determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence is to be believed[,] and all justifiable inferences

are to be drawn in his favor.” (internal quotations omitted)). While Preacher did not

submit any other corroborating evidence in support of his declaration, an affidavit is

“about the best that can be expected from [a pro se prisoner] at the summary judgment

phase of the proceedings.” See Brooks v. Kyler,

, 108 n.7 (3d Cir. 2000)

(quotation marks and alterations omitted). Accordingly, we will vacate the grant of

summary judgment as to this retaliation claim against Officer Long.

We will also vacate the grant of summary judgment as to Preacher’s Eighth

Amendment claim relating to Officer Long’s alleged meal tampering. In order to survive

summary judgment as to this claim, Preacher was required to put forth evidence from

which it could be inferred that he suffered (1) a deprivation that is “objectively,

sufficiently serious” such that it “result[s] in the denial of ‘the minimal civilized measure

of life’s necessities’” and (2) “deliberate indifference” on the part of Officer Long to

“inmate health or safety.” Farmer v. Brennan,

(1994) (quotation

marks omitted); see also Ramos v. Lamm,

, 570–71 (10th Cir. 1980)

(stating, in the context of the Eighth Amendment, that the state must provide an inmate

with “nutritionally adequate food that is prepared and served under conditions which do

not present an immediate danger to the health and well being of the inmates who

consume it.”). The District Court granted summary judgment on this claim based on its

conclusion that “Preacher has produced no evidence that any Defendant was responsible

5 for or had knowledge of” metal objects being placed on his meal tray. Op. 11, ECF No.

123. In light of Preacher’s representation above about Officer Long’s threatening

comment, however, Preacher created a genuine issue for trial. Therefore, we will vacate

the grant of summary judgment as to this Eighth Amendment claim as well.

Relatedly, the District Court also granted summary judgment as to Preacher’s

claims that a number of additional defendants failed to protect him from Officer Long’s

alleged misconduct. Those defendants are Boddorf, Termine, Barnes, Smalls, Heffernan,

Culver, and Mongelluzo. The District Court entered judgment in their favor based

entirely on its ruling that Preacher’s First and Eighth Amendment claims against Officer

Long failed. Op. 23, ECF No. 123. Because we are vacating the judgment on these

claims as to Officer Long, we will likewise do so as to these defendants for the claims

associated with the food-tampering incident.2

B.

Preacher also claimed that, on March 25, 2016, Corrections Officer Culver

threatened and sexually harassed him in retaliation for his filing grievances. Br. 28, ECF

No. 21. The District Court did not address the claim, stating that it could “discern no

claims or allegations that any of them [including Officer Culver] were personally

involved in the alleged wrongs during this timeframe.” Op. 19, ECF No. 123. However,

while Preacher certainly could have stated the claim more clearly, we are satisfied that he

2 On remand, the District Court may consider the Appellees’ arguments that the additional defendants cannot be held liable under the First or Eighth Amendments for Officer Long’s alleged misconduct.

6 did adequately present a retaliation claim against Officer Culver. See Am. Compl. ¶¶ 90–

91, 109; Resp. in Opp. to SJ 48. Therefore, we will vacate the District Court’s judgment

as to this claim so that it can address it in the first instance.3

C.

As for Preacher’s remaining points of error on appeal, we have carefully reviewed

the record and agree with the District Court that, for substantially the reasons it provided,

the defendants were entitled to summary judgment on Preacher’s other claims. We need

not repeat the District Court’s thorough analysis and only briefly address Preacher’s

arguments here.

First, Preacher claimed that Nurse Hill violated his Eighth Amendment rights by

providing inadequate medical care after the March 28, 2016 food incident. Preacher

acknowledged that Nurse Hill cleaned his wounds and examined his injuries but asserted

that she also should have prescribed him pain medication and antibiotics. These alleged

omissions, however, do not support a showing that Nurse Hill was deliberately indifferent

to a serious medical need; rather, to survive summary judgment, Preacher was required to

present evidence that Nurse Hill intentionally refused to provide care, delayed care for

non-medical reasons, denied prescribed medical treatment, or denied reasonable requests

for treatment. See Estelle v. Gamble,

(1976) (“[A] complaint that a

physician has been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment.”); Pearson v. Prison

3 We express no opinion about the merits of these claims. 7 Health Serv.,

(3d Cir. 2017) (explaining that nurse’s negligent

treatment of prisoner’s pain was not enough for the jury to find that she acted with

deliberate indifference in violation of the Eighth Amendment). He failed to do so.

Therefore, the District Court correctly concluded that Preacher had not met his burden.

The District Court also correctly concluded that the summary judgment record did

not support Preacher’s First Amendment retaliation claims against Food Service

Instructor Whisner, Food Service Manager Dittman, or Food Service Supervisor

Holloway. Preacher asserted that these defendants conspired to issue a false misconduct

charge against him in retaliation for his religious practices and prior grievances. The

misconduct charge—in which Whisner alleged that Preacher had sexually harassed her—

resulted in Preacher losing his job in the dietary department and being placed in the

Restrictive Housing Unit.

The District Court correctly concluded that Preacher could not withstand summary

judgment on this claim because he did not provide any evidence to support an inference

that Whisner issued the misconduct out of religious animus or in response to any prior

grievance. See Mitchell v. Horn,

(3d Cir. 2003) (explaining that to

succeed on a retaliation claim in this context, the prisoner must establish a causal link

between the constitutionally protected conduct and the retaliatory action). While

Preacher cited in his declaration instances where defendants Dittman and Holloway

exhibited anti-religious animus, those defendants did not issue the misconduct charge (or

take any other identified adverse action against him), and Preacher did not present

anything more than unsupported speculation that Whisner conspired with them when she

8 issued the misconduct charge. See Parkway Garage, Inc. v. City of Phila.,

,

700 (3d Cir. 1993) (explaining that in order to demonstrate a conspiracy, “a plaintiff must

show that two or more conspirators reached an agreement to deprive him or her of a

constitutional right”); see also Great W. Mining & Min. Co. v. Fox Rothschild LLP,

(3d Cir. 2010) (“[T]o properly plead an unconstitutional conspiracy [under

§ 1983], a plaintiff must assert facts from which a conspiratorial agreement can be

inferred.”).

Lastly, Preacher challenges the District Court’s determination that he did not

exhaust his Eighth Amendment excessive force claims against Officer Long and Sergeant

Frederickson. Preacher acknowledges that he did not properly exhaust these claims but

contends that he chose not to do so “out of fear for his safety and life.” Br. 30, ECF No.

21. However, he did not raise this argument in the District Court, and we will not

consider arguments raised for the first time on appeal. See Tri-M Grp., LLC v. Sharp,

(3d Cir. 2011). Moreover, although we have recognized that “serious

threats of retaliation and bodily harm” may render a prison grievance process

unavailable, see Rinaldi v. United States,

(3d Cir. 2018), the fact that

Preacher pursued initial grievances against Officer Long and Sergeant Frederickson—and

then filed roughly thirty more grievances after these were denied—belies his contention

that he was too fearful to use the grievance system.4

IV.

4 Preacher’s alleged fear for his safety does not excuse his failure to exhaust his claims against other defendants. 9 For these reasons, we will vacate in part the District Court’s judgment and remand

the matter for the court to consider: (1) Preacher’s First Amendment retaliation claim

relating to the March 28, 2016 food incident against Long, Boddorf, Termine, Barnes,

Smalls, Heffernan, Culver, and Mongelluzo; (2) Preacher’s Eighth Amendment

conditions-of-confinement claim relating to the same incident against the same

defendants; and (3) Preacher’s First Amendment retaliation claim against Culver relating

primarily to the incident that took place on March 25, 2016. We will otherwise affirm.

10