BAILEY v. WOOD

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MAURICE BAILEY, )

)

Plaintiff, ) Case No. 2:21-cv-00179

)

vs. )

)

ALBERT WOOD, )

)

Defendant. )

MEMORANDUM OPINION1

Plaintiff, Maurice Bailey (“Bailey”) commenced this civil rights action against Albert

Wood (“Wood”), a security lieutenant at the State Correctional Institution (“SCI”) at Fayette, in

which Bailey asserts that by spreading false information about him to other prisoners, Wood put

Bailey’s safety at risk.

Presently pending is defendant Wood’s Motion for Summary Judgment (ECF No. 52). For

the reasons set forth below, Wood’s motion will be granted.

I. Relevant Procedural History

Bailey is a state prisoner in the custody of the Pennsylvania Department of Corrections

(“DOC”) who is currently incarcerated at SCI-Fayette, where the events at issue occurred. He is

proceeding pro se in this civil rights action.

Bailey’s Complaint was lodged on or around February 5, 2021. After he corrected various

procedural defects, the operative Complaint was docketed on February 12, 2021 (ECF No. 10).

1 The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all

proceedings in this case as authorized by 28 U.S.C. § 636 (ECF Nos. 9, 21). Thus, the undersigned

has the authority to decide dispositive motions and enter final judgment.

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John Wetzel, Marc Capozza and Wood were named in the Complaint as defendants.

Defendants subsequently filed a Partial Motion to Dismiss (ECF No. 18) Bailey’s claims.

Their motion was granted in part and denied in part. Defendants Wetzel and Capozza were

dismissed with prejudice. In addition, the claim against Wood in his official capacity was

dismissed, as were Bailey’s state law claims of assault and defamation. Although Bailey was

granted leave to amend his Complaint, he did not do so. Thus, the remaining causes of action are

only against Wood in his individual capacity and include a First Amendment retaliation claim, an

equal protection claim, and a state-created-danger claim.

After discovery closed, Wood moved for summary judgment (ECF No. 52). In support of

his motion, he filed a Concise Statement of Material Facts (ECF No. 53) and a supporting Brief

(ECF No. 54). Bailey filed a Responsive Concise Statement of Material Facts (ECF No. 56) and

a Brief in Opposition (ECF No. 57). Thus, Wood’s motion for summary judgment is fully briefed

and ripe for disposition.

II. Relevant Factual Background2

As a security lieutenant at SCI-Fayette, Wood receives and assesses information about

2 These facts are derived from Bailey’s verified Complaint (ECF No. 10), Wood’s Concise

Statement of Material Facts (ECF No. 52), and Bailey’s responsive Concise Statement of Material

Facts (ECF No. 56) and are undisputed except where noted. The Court will consider Bailey’s

factual assertions to the extent that they are based on his personal knowledge, set out facts that

would be admissible in evidence, and state competent testimony on the matters at issue. See Fed.

R. Civ. P. 56(c)(4). The Court may consider Bailey’s allegations that are contained in a verified

complaint because the complaint can be treated as an affidavit or declaration. See, e.g., Ziegler v.

Eby, 77 F. App’x 117, 120 (3d Cir. 2003). However, a court is not “required to accept unsupported,

self-serving testimony as evidence sufficient to create a jury question.” Hammonds v. Collins, No.

12-CV-236, 2016 WL 1621986, at *3 (M.D. Pa. Apr. 20, 2016) (citing Brooks v. Am. Broad. Co.,

999 F.2d 167, 172 (6th Cir. 1993)); Rinaldi v. United States, No. 1:13-CV-450, 2019 WL 1620340,

at *12 (M.D. Pa. Apr. 16, 2019).

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potential security risks in the inmate population and makes recommendations for separations and

transfers based upon evidence that he finds to be credible. ECF 53 ¶ 6. Wood tracks “[a]ll

organizations that may pose danger to the security of DOC institutions” regardless of whether they

are affiliated with any religious group. Id. p. 2. When he believes a separation may be warranted,

he prepares a report that is circulated to other SCI-Fayette staff, who then indicate if they agree or

disagree with his assessment by means of a document known as a vote sheet. Id. ¶ 7. If other staff

agree and the Central Office approves, the separation goes into effect, usually by transferring an

inmate to a new location. Id. ¶ 8.

Bailey is a Nation of Islam (“NOI”) minister at SCI-Fayette. Being an inmate minister is

a position of power within the prison population. ECF 53 ¶ 4. This position gives him certain

authority over the NOI members and additional responsibilities such as speaking during services.

ECF No. 10 ¶ 14. According to Wood, “[t]he security office tracks the Nation of Islam group

because certain of its teachings may pose danger to the security of DOC institutions.” ECF No.

53-3, p. 2. Bailey claims that Wood’s surveillance of NOI is not because of any potential danger

but because of prejudice against the NOI. ECF No. 56 ¶ 10.

Bailey asserts in his Complaint that in Spring of 2019, Wood had a discussion with Bailey

in the presence of two other inmates, Taylor and Pulley. ECF No. 10 ¶¶ 8, 9. During that

conversation, Wood informed Bailey that Carlos Mathis, a NOI inmate, was placed in SCI-

Fayette’s Restricted Housing Unit (“RHU”) for violating DOC rules pending transfer to another

prison. Id. ¶ 9. According to Bailey, Wood also asked him to tell inmate Lamar Gurdine to stop

passing out NOI Literature in the prison’s main yard. Id. ¶ 10. Bailey said that he later asked

Gurdine to stop distributing literature in the yard, but Gurdine told him that prison officials had

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already ordered him to stop doing so. Id. ¶ 11. After a second meeting during which Wood stated

to Bailey that Gurdine had violated DOC rules about speaking during NOI services, Gurdine was

placed in the RHU. Id. ¶¶ 12-15, 17. Gurdine was later transferred to another prison. Id. ¶ 17.

Wood does not recall having any conversations with Bailey about either Mathis or Gurdine.

ECF No. 5 ¶ 2. Wood further states that he did not communicate any information pertaining to the

transfer of inmates Mathis or Gurdine to any inmate. ECF No. 53 ¶¶ 16, 20.

After Mathis and Gurdine were transferred to other correctional institutions, Bailey read

the “DOC separation rationales” that stated that both were transferred because Bailey “ordered a

hit on them.” ECF No. 10 ¶¶ 18, 19; ECF No. 53-4.3 The separation reasoning states: “Reason:

Inmate Mathis Had An Altercation With Inmate Bailey (foi-leader At Fyt) AND Fee Ls [sic]

Retaliation Exist By Ordering A Hit (stg).” “Reason: Inmate Gurdine Has Attempted to Disrupte

[sic] The Noi/foi During Lessons, Inmate Bailey Placed A “hit” On Inmate Gurdine For This.”

ECF No. 53-4.

This rationale for the transfers came as a surprise to Bailey because “Muslims, by Allah’s

command, can only engage in self-defense not ‘hits.’” ECF No. 56 ¶ 5.4 Bailey spoke to the NOI

assistant inmate minister, Sean Bazemore (also a SCI-Fayette inmate), as well as other NOI

member prisoners, about this information. ECF 10 ¶¶ 24, 26. Bailey asserts that Bazemore advised

him that Wood told multiple NOI inmates that Bailey secretly requested the transfers of Mathis

and Gurdine. Id. ¶ 24. Further, Bazemore told Bailey that Wood “first circulated implications

[Bailey] was an informant among Nation of Islam inmates at SCI Fayette around the time of the

3 Bailey does not explain how he obtained the separation rationale.

4 Wood claims that “[a]s an inmate minister of the NOI, Plaintiff had the authority to order a hit to

be carried out on other inmates.” ECF No. 53-3 ¶ 9.

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first Mathis meeting.” Id. According to Bazemore, he was told by Wood that Bailey had requested

that Bazemore be confined in the RHU and transferred but Wood stopped this from occurring. Id.

Bailey also claims that he met with other NOI inmates who told him that Wood said that Bailey

was the informant who requested the “apprehension” and transfers of Mathis and Gurdine. Id.

¶ 26. There were several discussions among the NOI inmates without Bailey’s knowledge about

whether he was an informant, which “explained the apparent tension among the [NOI] inmates

throughout 2019.” Id. All of this, according to Bailey, would likely subject him to “prison

assaults/murder.” Id. ¶ 27.

Wood denies that he either stated or implied to anyone that Bailey was an informant or that

Bailey requested the transfer of any other inmate. ECF No. 53 ¶ 23; ECF No. 53-3 ¶ 14.

There is no evidence in the record that Bailey has ever been assaulted, threatened, or

retaliated against by other inmates. ECF 53 ¶ 28.

III. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant

summary judgment 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). Summary judgment

may be granted against a party who fails to adduce facts sufficient to establish the existence of any

element essential to that party’s case, and for which that party will bear the burden of proof at trial.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden

of showing the absence of a genuine, material dispute and an entitlement to judgment. See id. at

323. This showing does not necessarily require the moving party to disprove the opponent’s

claims. Instead, this burden may often be discharged simply by pointing out for the court an

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absence of evidence in support of the non-moving party’s claims. See id.; see, e.g., Spierer v.

Rossman, 798 F.3d 502, 508 (7th Cir. 2015).

Once the moving party has met its initial burden, then the burden shifts to the non-moving

party to demonstrate, by affidavit or other evidence, “specific facts showing that there is a genuine

issue for trial” or the factual record will be taken as presented by the moving party and judgment

will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). A non-moving party must “go beyond the pleadings” and show probative

evidence creating a triable controversy. Celotex, 477 U.S. at 324. An issue is genuine only if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court

must take the facts in the light most favorable to the non-moving party and must draw all

reasonable inferences and resolve all doubts in that party’s favor. See Hugh v. Butler Cnty Family

YMCA, 418 F.3d 265, 267 (3d Cir. 2005); Doe v. Cnty of Centre, Pa., 242 F.3d 437, 446 (3d Cir.

2001).

Although courts must hold pro se pleadings to “less stringent standards than formal

pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary

judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative

evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g.,

Barnett v. NJ Transit Corp., 573 F. App’x 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff

was still “required to designate specific facts by use of affidavits, depositions, admissions, or

answers to interrogatories…sufficient to convince a reasonable fact finder to find all the elements

of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 F. App’x 817, 820

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(3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with

relevant rules of procedural law.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013) (pro se plaintiffs “cannot flout procedural rules—they must abide by the same rules that

apply to all other litigants.”)

IV. Discussion

Bailey brings civil rights claims under 42 U.S.C. § 1983 against Wood for First

Amendment retaliation, violation of his equal protection rights under the Fourteenth Amendment,

and state-created-danger. “To state a claim under § 1983, a plaintiff must allege the violation of a

right secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988). Importantly, § 1983 does not create substantive rights but instead “provides only

remedies for deprivations of rights established elsewhere in the Constitution or federal laws.”

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).

“The first step in evaluating a section 1983 claim is to identify the exact contours of the

underlying right said to have been violated and to determine whether the plaintiff has alleged a

deprivation of a constitutional right at all.” Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d

210, 222 (3d Cir. 2015) (internal quotations and citations omitted). “Next, a plaintiff must

demonstrate a defendant’s ‘personal involvement in the alleged wrongs.’” Id. (quoting Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). That is because only a person who “subjects,

or causes to be subjected” another person to a civil rights violation can be held liable under § 1983.

While Bailey claims that Wood spread dangerous false information about him to NOI

prisoners, Wood denies that he ever spoke to any inmate about the transfers of Mathis and Gurdine

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or referred to Bailey as an informant. ECF No. 53-3 ¶ 14. Mindful of these conflicting statements,

the Court will analyze each of Bailey’s claims.

A. First Amendment Retaliation Claim

Bailey alleges that Wood retaliated against him for his role as a prison minister for the NOI

inmates. He claims Wood moved two NOI inmates to the RHU and then transferred them to other

prisons and falsely told other NOI prisoners that he was forced to do so because Bailey ordered a

“hit” on them. Bailey also states that Wood falsely told inmate members of NOI that Bailey was

an informant and by doing so, placed Bailey at risk to be harmed by other inmates.

A prisoner asserting a retaliation claim must allege facts demonstrating that (1) he engaged

in constitutionally protected conduct; (2) prison officials took an adverse action against the

plaintiff that was “sufficient to deter a person of ordinary firmness from exercising his

[constitutional] rights”; and (3) the existence of “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) (quoting Allah v. Seiverling,229 F.3d 220, 225 (3d Cir. 2000) (alteration in original);

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).

When considering whether Bailey was engaging in constitutionally protected conduct, the

Court may only consider religious “beliefs which are both ‘sincerely held’ and ‘religious in nature’

[to be] protected under the First Amendment.” Sutton v. Rasheed, 323 F.3d 236, 251 (3d Cir.

2003), as amended (May 29, 2003). “The central and foundational tenets of the Nation of Islam

meet the definition of religion as set forth in Hialeah [Church of the Lukimi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520 (1993)] and Africa [Africa v Commonwealth of Pennsylvania, 662

F.2d 1025 (3d Cir. 1981)].” Id. at 252. Thus, as a Nation of Islam minister, Bailey meets the first

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element of a retaliation claim.

While Wood acknowledges that Bailey’s exercise of religion is protected conduct under

the First Amendment, he contends that Bailey has not demonstrated the existence of an adverse

action. He states that this is so because even if Bailey’s allegations are accepted as true, spreading

false statements is insufficient to deter a person of ordinary firmness from exercising his religious

beliefs. According to Wood, First Amendment retaliation claims are validly dismissed where the

asserted adverse action is simply that a correctional official allegedly “attempted to turn other

inmates ... against [him]” by spreading rumors” without any allegation that any harm occurred as

a result. Neals v. Stromberg, No. 16-cv-7141, 2020 WL 5088226, at *13 (D.N.J. Aug. 28, 2020).

Thus, Wood contends, Bailey’s allegation that Wood spread false information about him to other

NOI inmates is “insufficient to meet the adverse action and causation elements of a First

Amendment retaliation claim.” Neals, 2020 WL 5088226, at *13.

Bailey does not contend in his brief that he was deterred from exercising his religion.

Rather, he asserts that if Wood actually believed that Bailey had ordered a “hit” on other inmates,

he should have issued a misconduct to Bailey. He also references other alleged transgressions of

Wood and the security department at SCI-Fayette. These arguments are not relevant to the analysis

of Wood’s dispositive motion, however.

Wood is correct that even if it is assumed to be true that he spread false information about

Bailey, he is entitled to judgment in his favor with respect to Bailey’s First Amendment claim. As

noted above, the mere dissemination of such information, without more, is insufficient to support

the adverse action element of a retaliation claim. There is no evidence that Bailey was unable to

practice his religious faith or was no longer able to serve as a NOI minister even if Wood told other

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NOI inmates that he was an informant. Moreover, the Complaint does not allege, nor is there any

other evidence, that Bailey sustained any harm as a result of Wood’s conduct. While Bailey claims

that the false information conveyed to other inmates placed him in danger of an assault or murder,

he does not offer any evidence that even suggests that any such conduct occurred or for that matter,

was even threatened.5

Thus, even viewing the facts in the light most favorable to Bailey, his retaliation claim fails

because the alleged false comments and innuendo by Wood are not adverse actions that deterred

Bailey from exercising his religious beliefs. Similarly, no facts were offered to show a causal link

between Bailey’s NOI status and the false information allegedly spread about him. Thus, Wood

is entitled summary judgment with respect to Bailey’s retaliation claim.

B. Equal Protection Claim

Bailey alleges that he was treated differently by Wood because he is the prison minister for

the NOI. Bailey contends that Wood “would not have been authorized to attempt conspiracy plot

[sic] against [him] if [he] was the inmate Protestant minister or Catholic leader.” ECF 10 ¶ 32.

It is undisputed that Wood’s duties include safeguarding the security of the prison and that

he does so regardless of an organization’s affiliation or lack of affiliation with any religious group.

He asserts that there is nothing in the evidentiary record to support Plaintiff’s equal protection

claim against him. Thus, Wood contends, he is entitled to judgment in his favor on this claim.

The Equal Protection Clause provides that no state shall “deny to any person within its

5 In his response to Wood’s motion, Bailey simply alleges that as a result of Wood’s actions, he

“suffered losts [sic] of relationships (and reputation) with former members of SCI-Fayette Nation

of Islam services.” ECF No. 57 ¶¶ 20, 21. There is no evidence in the record to support this

assertion. At most, Bailey’s Complaint states that there was discussion among NOI inmates about

whether he was an informant, and allegedly, this created “apparent tension” during 2019.

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jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “This is not a

command that all persons be treated alike but, rather, ‘a direction that all persons similarly situated

should be treated alike.’” Artway v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir.

1996) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)); see also

United States v. Armstrong, 517 U.S. 456, 456-57 (1996) (Equal Protection Clause prohibits a

decision to prosecute based on an unjustifiable standard such as race, religion, or other arbitrary

classification).

To establish a violation of the Equal Protection Clause based on his NOI religion, Plaintiff

must prove, among other things, that he was similarly situated to other individuals who are not

members of NOI but who received different treatment than him, and that this different treatment

was the result of intentional discrimination based on his affiliation with NOI. See, e.g., Dehart v.

Horn, 390 F.3d 262, 272 (3d Cir. 2004); Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir.

2016) (“To state an equal protection claim, [the plaintiff] must alleged that he was treated

differently than other similarly situated inmates, and that this different treatment was the result of

intentional discrimination based on his membership in a protected class, such as religious

affiliation.”)6

Bailey cites to the affidavits of fellow prisoners Raymont Walker (ECF No. 57-2 pp. 7-8)

and Phillip Pulley (ECF No. 57-2 p. 12) as support for his equal protection claim. Walker’s

affidavit states that he was asked during a medical examination by an unidentified security

6 Similarly, a plaintiff advancing an equal protection claim under a “class of one” theory must also

show, among other things, that “the defendant[s] treated him differently from others similarly

situated[.]” Auslisio v. Chiampi, 765 F. App’x 760, 765 (3d Cir. 2019) (quoting Hill v. Borough

of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)).

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lieutenant if he was fasting with the Nation of Islam. Pulley’s affidavit states that he was surprised

that Mathis was transferred to a lower-level security prison after he was cited for a misconduct.

Neither of these affidavits, nor Bailey’s conjecture about them, supports Bailey’s equal protection

claim against Wood. These facts, even if viewed in the light most favorable to Bailey, fail to show

that he was treated differently than other prison ministers of different faiths or subject to

discrimination based upon his NOI beliefs. Bailey has not offered evidence of any similarly

situated persons who were treated differently. His comparison to hypothetical Catholic or

Protestant ministers rumored to be child molesters, ECF No. 57 ¶ 30, is nothing but speculation

and hyperbole. It is uncontroverted that Wood tracks all organizations, not just the NOI. Wood’s

monitoring of the NOI as part of his duties does not support Bailey’s claim that he received

different treatment than similarly situated individuals. Simply put, Bailey has offered no facts that

could support a claim that he was intentionally treated differently than ministers of other religions

who were similarly situated.

Bailey has also failed to provide any factual support for a claim that he was treated

differently than other NOI inmates who were similarly situated. The transfer of Mathis and

Gurdine, both of whom were identified as NOI inmates, is not evidence of intentional

discrimination against Bailey, who is also associated with the NOI. The fact that the separation

rationale includes references to the NOI fails to establish that Bailey was subjected to

discrimination. Bailey was not disciplined or transferred, nor are there any facts of record that he

sustained any harm as a result of the transfers of other inmates. Moreover, these transfers were

based upon Bailey’s alleged threats, not his faith.

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For these reasons, summary judgment will be granted in favor of Wood on Bailey’s equal

protection claim.

C. State-Created-Danger

Bailey claims that when Wood falsely told multiple Nation of Islam inmates that Bailey

was an informant and put a hit on Mathis and Gurdine , Wood put Bailey’s life at risk. According

to Bailey, Wood knew that this would likely subject him to assault or murder because “the label

of informant is dangerous in a level four security prison.” ECF No. 10 ¶ 27.

As previously addressed, whether Wood conveyed false information about Bailey is

disputed. Nevertheless, Wood asserts that the prison has no duty to protect against prisoner-on-

prisoner attacks, citing DeShaney v. Winnebago County Department of Soc. Services, 489 U.S.

189, 195–96 (1989). Wood also contends that Bailey failed to satisfy the elements of a state-

created-danger claim because Wood had no intent of harming Bailey. Bailey’s responsive

memorandum fails to address these arguments.

The state-created-danger doctrine is a claim under the Due Process Clause of the

Fourteenth Amendment. See Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006) (‘[W]e first

adopted the state-created danger theory as a mechanism by which plaintiffs may establish

constitutional violations under 42 U.S.C. § 1983. We confirmed that liability may attach where

the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth

Amendment right to substantive due process.”). See also Kneipp v. Tedder, 95 F.3d 1199, 1201,

1205 (3d Cir.1996); Brown v. Pa. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d

473, 478 (3d Cir.2003). However, the Supreme Court adopted the more-specific-rule based on its

reluctance to expand the concept of substantive due process. See Cnty. of Sacramento v. Lewis,

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523 U.S. 833, 842 (1998) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992)).

Under this rule, “if a constitutional claim is covered by a specific constitutional provision, such as

the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to

that specific provision, not under the rubric of substantive due process.” United States v. Lanier,

520 U.S. 259, 272 n.7 (1997). “Where a particular Amendment ‘provides an explicit textual source

of constitutional protection’ against a particular sort of government behavior, ‘that Amendment,

not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing’ such

a claim.’” Albright v. Oliver, 510 U.S. 266, 266 (1994) (quoting Graham v. Connor, 490 U.S. 386,

395 (1989)).

As noted by the Third Circuit in Betts v. New Castle Youth Development Center, 621 F.3d

249, 261 (3d Cir. 2010), when allegations “fall squarely within the Eighth Amendment’s

prohibition on cruel and unusual punishment, we hold that the more-specific-provision rule

forecloses [plaintiff’s] substantive due process claims.” Here, Bailey’s state-created-danger

allegations fit squarely within the Eighth Amendment’s prohibition on cruel and unusual

punishment, and more specifically, the failure to protect. To succeed on a failure to protect claim,

a plaintiff must show that: (1) he was incarcerated under conditions posing a substantial risk of

serious harm; (2) the defendant was deliberately indifferent to that substantial risk; and (3) the

defendant's deliberate indifference caused the plaintiff to suffer harm.” Bistrian v. Levi, 696 F.3d

352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020).

“The Eighth Amendment imposes ‘a duty upon prison officials to take reasonable measures

to protect prisoners from violence at the hands of other prisoners.’” Evans v. Cameron, 442 F.

App’x. 704, 706 (3d Cir.2011) (quoting Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.1997)). “To

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the extent Plaintiff can show that the Defendant made deliberate disclosures to inmates with the

intent to incite them to cause harm to Plaintiff, the Court believes that Plaintiff may state a failure

to protect claim.” Williams v. Thomas, No. 12-CV-01323, 2013 WL 1795578, at *7 (E.D. Pa.

Apr. 29, 2013).

“Courts in the Third Circuit have recognized that being labeled a “snitch” may constitute

an Eighth Amendment violation if the prison official acted with deliberate indifference to a

substantial risk of serious harm to the inmate.” Williams, 2013 WL 1795578, at *5 (citing Cooper

v. Beard, 2006 U.S. Dist. LEXIS 80655, *30 (E.D. Pa. 2006) (“[A] correction officer’s labeling a

prisoner a snitch constitutes an Eighth Amendment violation.”)). See also Brown v. Shrader,

No. 2:14-cv-1085, 2015 WL 5027510, *3 (W.D. Pa. Aug. 25, 2015) (plaintiff stated a failure to

protect claim when a corrections officer called Plaintiff a “snitch” in front of other inmates.... and

told other inmates that Plaintiff was “working with prison security.”)

Here, there is a genuine issue of material fact whether Wood told NOI prisoners that Bailey

was an informant who put a hit on certain NOI inmates and caused their transfer. According to

Bailey, being identified in a prison setting as an informant created a risk to his safety.

“In making this objective determination of whether the risk of an inmate being assaulted

by other inmates is sufficiently serious to trigger constitutional protection under

the Eighth Amendment, ‘the focus must be, not the extent of the physical injuries sustained in the

attack, but rather the existence of a substantial risk of serious harm.’” Williams, 2013 WL

1795578, at *5 (quoting Pearson v. Vaughn, 102 F. Supp. 2d 282, 290 (E.D.Pa.2000)); see also

Williams, 2013 WL 1795578 at *6 (“[T]he danger of labeling a prisoner a ‘snitch,’ district courts

in this Third Circuit have found that the mere act of labeling a prisoner a snitch constitutes a

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substantial risk of harm”); Rodriguez v. Hayman, No. 08–cv-4239, 2009 WL 4122251, at *7

(D.N.J. Nov. 23, 2009) (“[a]n inmate being labeled a snitch creates a substantial risk of harm.”).

Thus, construing the evidence in the light most favorable to Bailey, there is sufficient

evidence that by being characterized as an informant, he was at a risk of serious harm.

It must next be determined if Wood was deliberately indifferent to a substantial risk to

Bailey. To demonstrate the existence of deliberate indifference to a risk of harm, a prison official

must have a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)

(citations omitted). “A prison official may be held liable under the Eighth Amendment for acting

with ‘deliberate indifference’ to inmate health or safety only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by failing to take reasonable measures to

abate it.” Id. at 825. The standard for deliberate indifference is subjective; thus, the prison official

“must actually have known or been aware of the excessive risk to inmate safety.” Beers-Capitol v.

Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). “[D]eliberate indifference is a subjective state of mind

that can, like any other form of scienter, be proven through circumstantial evidence and witness

testimony.” Pearson v. Prison Health Servs., 850 F.3d 528, 535 (3d Cir. 2017).

A defendant can rebut allegations of deliberate indifference “either by establishing that he

did not have the requisite level of knowledge or awareness of the risk, or that, although he did

know of the risk, he took reasonable steps to prevent the harm from occurring.” Beers–

Capitol, 256 F.3d at 133; Reed v. Harpster, No. 3:09-CV-1618, 2012 WL 2871797, at *5 (M.D.

Pa. July 12, 2012), aff’d, 506 F. App’x 109 (3d Cir. 2012). “[P]rison officials who act reasonably

cannot be found liable under the Cruel and Unusual Punishment Clause.” Farmer, 511 U.S. at

845.

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In Tabb v. Hannah, a prisoner alleged he notified the prison on four separate occasions that

CO Barnett labeled him a snitch, putting his life in danger. However, there were no allegations

that the plaintiff was at risk of harm from his cell mate or that he was afraid of cell mate or any

other prisoner. Accordingly, the court found that there were insufficient allegations to conclude

that prison officials failed to protect Plaintiff from harm after the correctional officer allegedly

labeled him a rat and a snitch. See No. 1:10-cv-1122, 2012 WL 3113856, *6 (M.D. Pa.

July 30, 2012); Williams, 2013 WL 1795578, at *7.

Similarly, in Jackson v. O’Brien, the Court found a corrections officer was not deliberately

indifferent because even if there were a substantial risk of harm to the plaintiff inmate, there was

no evidence that the plaintiff feared an assault from another inmate as a result or that the

corrections officer knew of any such fear. See No. 1:18-cv-00032, 2021 WL 3174687, *5

(W.D. Pa. July 27, 2021). Deliberate indifference requires that a prison official know of and

disregard an excessive risk to inmate health or safety. See Jackson, 2021 WL 3174687, at *5

(citing Farmer, 511 U.S. at 837).

Bailey has failed to offer any facts to support that Wood knew that Bailey faced a

substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to

abate it. Wood asserts that he did not wish any physical harm on Plaintiff. ECF No. 53 ¶ 26.

While Bailey disputes this fact, he offers no admissible evidence of any intent to harm him.

Further, it is uncontroverted that Wood was unaware of any threats or danger to Bailey. Notably,

there is no evidence that Bailey informed Wood or any other corrections official that he feared

attacks from other inmates or that he told anyone that he had been threatened or assaulted because

he was identified as an informant. There is also no evidence that Wood learned of any threat to

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Bailey from any other source.

Even if it could be concluded that Wood was deliberately indifferent to a risk to Bailey’s

safety, however, Bailey cannot meet the third element of a failure to protect claim. Simply put,

there is no evidence that Bailey sustained any harm as a result of being labeled as an informant.

He was not physically harmed or threatened by other inmates. At most, Bailey claims that being

labelled an informant can put your life in danger, not that he was actually in danger. In fact, Bailey

merely claims that there was some discussion among inmates about whether he was an informant,

and this caused “apparent tension” among the NOI inmates. In addition to being inadmissible

hearsay, the fact that discussions took place does not demonstrate the existence of any harm to

Bailey. As such, there is no evidence that Bailey suffered any harm as a result of any conduct by

Wood.

Because there are no genuine issues of material fact that could support Bailey’s claim that

Wood acted with deliberate indifference or that Bailey sustained any harm through Wood’s

conduct, summary judgment will be granted in Wood’s favor on Bailey’s Eighth Amendment

failure to protect claim.

V. Conclusion

For these reasons, the Court will grant Wood’s Motion for Summary Judgment (ECF No.

52). An appropriate order will follow.

BY THE COURT:

Dated: December 9, 2022 /s/ Patricia L. Dodge

PATRICIA L. DODGE

United States Magistrate Judge

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