* AMENDED BLD-117                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-1368
                                       ___________

                                    KEITH COLLIER,
                                               Appellant

                                             v.

          CORRECTIONAL OFFICER ADAMS; CAPTAIN BLUDWORTH
                 ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (M.D. Pa. Civil No. 1-09-cv-02232)
                      District Judge: Honorable Sylvia H. Rambo
                      ____________________________________

         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
                                   February 20, 2015

               Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                            (Opinion filed: February 25, 2015)
                                        _________

                                        OPINION*
                                        _________


PER CURIAM

       Keith Collier, a federal prisoner proceeding pro se, appeals from an order of the


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
District Court granting summary judgment to the remaining Defendants in this action

brought by Collier pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 

(1971). For the reasons that follow, we will affirm.

        In 2008, Collier was moved to the Special Housing Unit at USP Allenwood as a

result of a gambling investigation. When his belongings were packed for the move,

officers found homemade intoxicants and disciplinary proceedings ensued. In protest,

Collier began a hunger strike on July 4, 2008. He alleged that Defendant Bludworth

threatened to shut off the water to his cell if he maintained the hunger strike and that

Defendant Adams shut off the water on July 9, 2008. Running water was restored to his

cell on July 12, 2008. Collier ended his hunger strike on July 16, 2008.

        While he was on the hunger strike, Collier was seen daily by prison medical staff,1

who monitored his health and counseled him about the risks of not eating and drinking.

Although water to his cell was turned off for 77 hours at the beginning of the strike, water

was available to Collier in the medical areas, and milk was available at breakfast each

day. Collier, however, did not ask medical staff (or any other staff) for a drink because

he felt he should not have had to ask. He did not accept milk at breakfast because he felt

it was like food. Collier became dehydrated and was given intravenous fluids on two

days prior to the end of his hunger strike.

        Collier subsequently filed a Bivens complaint that included allegations that he had

been injured by the deprivation of water to his cell. The District Court dismissed the


    1
     It appears that there was one day during the hunger strike that Collier was not seen
by medical staff: July 13, 2008, after running water was restored to his cell.
                                              2
majority of Collier’s complaint for failure to state a claim upon which relief could be

granted, but permitted Collier’s Eighth Amendment claim regarding water deprivation to

proceed. Bludworth and Adams, the remaining defendants, then moved for summary

judgment, which the District Court granted. On appeal, we vacated the grant of summary

judgment and remanded for further proceedings because the record was not clear on

whether the water deprivation amounted to a violation of the Eighth Amendment. See

Collier v. Martinez, 474 F. App’x 870, 874 (3d Cir. 2012). We concluded that there was

an unresolved factual dispute regarding whether Collier had access to alternative sources

of drinking water during the 77 hours. 

noted that the Eighth Amendment

claim would fail if it were shown that Collier had “access to adequate hydration during

the period in question, even in conjunction with meals he otherwise did not desire to eat .

. . [because] he would not be able to show that the complained-of deprivation was

‘sufficiently serious.’” 

       On remand, the parties engaged in additional discovery and filed new motions for

summary judgment. The Magistrate Judge recommended that summary judgment be

granted in favor of the Defendants, concluding in part that they were entitled to qualified

immunity because Collier had failed to establish a violation of the Eighth Amendment.

The Magistrate Judge explained that the undisputed facts showed that Collier had access

to fluids during the 77-hour period in which the water to his cell was shut off: milk was

available every morning and water was available in the medical areas where Collier was

seen each day during the period. Collier chose not to drink milk and did not ask medical

staff, or any other staff, for water. Moreover, he did not establish that he would have

                                             3
been refused fluids if he asked for them. Nor did Collier show that the Defendants were

deliberately indifferent to a substantial risk because they were aware that inmates on

hunger strike were treated on regular basis by medical staff to ensure their health and

safety. The District Court adopted the Magistrate Judge’s report and ordered that

judgment be entered in favor of the Defendants. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and, if no substantial question

is presented, we may affirm on any ground supported by the record. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6; Tourscher v. McCullough, 

, 240 (3d Cir. 1999). We

review de novo the District Court’s order granting summary judgment to the Defendants.

See Schmidt v. Creedon, 

, 594-95 (3d Cir. 2011). Summary judgment is

appropriate where “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).

Although “[t]he evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor in determining whether a genuine factual question

exists, summary judgment should not be denied unless there is sufficient evidence for a

jury to reasonably find for the non[-]movant.” Barefoot Architect, Inc. v. Bunge, 

, 826 (3d Cir. 2011) (internal quotation marks and citation omitted).

       To determine whether an official is entitled to qualified immunity, a court must

decide whether (1) the facts shown by the plaintiff “make out a violation of a

constitutional right,” and (2) “the right at issue was ‘clearly established’ at the time of

defendant’s alleged misconduct.” Pearson v. Callahan, 

, 232 (2009). “If the

plaintiff fails to satisfy either prong, the defendant is entitled to judgment as a matter of

                                               4
law.” James v. City of Wilkes-Barre, 

, 679 (3d Cir. 2012). For substantially

the reasons set forth in the Magistrate Judge’s report and the District Court’s

memorandum opinion, we agree that Collier failed to make out an Eighth Amendment

violation and that, as a result, the Defendants were entitled to summary judgment on

qualified immunity grounds.

       To prove an Eighth Amendment violation, Collier had to show that he was

deprived of “the minimal civilized measure of life’s necessities . . . [which] includes

proving that the deprivation suffered was sufficiently serious, and that a prison official

acted with deliberate indifference in subjecting him to that deprivation.” Griffin v.

Vaughn, 

, 709 (3d Cir. 1997) (internal quotation marks and citation

omitted). Although the water to Collier’s cell was shut off for 77 hours, the conditions

did not amount to the complete or nearly complete lack of access to fluids that we

previously were concerned about. See Collier, 474 F. App’x at 874. On the contrary,

fluids were available daily, but Collier either refused them or failed to ask for them.

Although he asserted before the District Court that an issue of material fact was in

dispute and that summary judgment should not be granted to the Defendants, he failed to

specify what fact was in dispute and cite supporting evidence. This is insufficient under

Rule 56, which requires a party who asserts that a fact is genuinely disputed to support

that assertion by either citing specific material in the record, or showing that the material

cited does not establish the absence of a genuine dispute. See Fed. R. Civ. P. 56(c)(1).

Therefore, the District Court appropriately rejected Collier’s unsupported assertion.

       The District Court also reiterated that the following facts undisputed facts were

                                              5
presented by the Defendants:

          Collier’s hunger strike began on July 4, 2008 and ended July 12,
          2008.2 His cell, except for toilet water [which was free of urine], was
          without water for 77 hours. During those times, Collier had access to
          fluids such as milk each morning, and he never asked staff for water
          or fluids. He was constantly monitored and evaluated by medical
          staff during the 77 hours at issue. Collier was constantly counseled by
          medical staff regarding the need to be hydrated. He was given
          intravenous fluids on two occasions.

Mem. Op. at 4, ECF No. 143. Under these facts, we agree with the District Court that

Collier failed to show that the deprivation of running water in his cell for 77 hours was

“sufficiently serious.” Cf. Williams v. Delo, 

, 446 (8th Cir. 1995) (prisoner

held in cell without clothes, mattress, and running water for four days, but who was

provided milk which he did not like to drink, did not show that the conditions violated the

Eighth Amendment). Given that the Defendants also established that they were aware

that prisoners on hunger strike were monitored daily by medical staff, as Collier was, we

also agree that Collier failed to show that they acted with deliberate indifference when

they shut off the water to his cell.3 Collier has failed to offer any arguments on appeal

challenging the District Court’s decision.4


2
 It appears that the District Court confused the date the water was turned back on in
Collier’s cell, July 12th, with the date he ended his hunger strike, July 16th. See Report
& Recommendation at 18, 21, ECF No. 133; Statement of Facts in Supp. of Defs.’ Mot.
for Summ. J. at ¶¶ 4, 119, ECF No. 112.
3
 We also note that the administration of intravenous fluids for dehydration occurred days
after the water supply to Collier’s cell was restored, and Collier did not aver that he
suffered any long-term, lasting physical effects from his hunger strike.
4
  The District Court also rejected Collier’s challenge to the earlier denials of his motions
to appoint counsel and close discovery, which he raised in his objections to the
                                              6
      Accordingly, we will summarily affirm the District Court’s order granting

summary judgment to the Defendants. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




Magistrate Judge’s report. The court determined that the challenges were untimely and
that the Magistrate Judge had properly deemed the motion to close discovery to be
withdrawn because Collier did not file a supporting brief. Collier has raised no
arguments on appeal regarding this aspect of the District Court’s decision.
                                           7