Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2005

Morgan v. Terhune
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2523




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Recommended Citation
"Morgan v. Terhune" (2005). 2005 Decisions. Paper 144.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/144


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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 04-2523


                                   KENNY MORGAN,
                                            Appellant

                                            v.

            JACK TERHUNE; ROY HENDRICKS; MORAN; M. BRZDEK;
             S. BRZDEK; J. FRY; MASTROPOLO; KEATON; WERESK;
       G. A. SMITH; DIVITIS; CMS STAFF; FRANK JAMES; GAIL GILLESPE


                     On Appeal from the United States District Court
                            for the District of New Jersey
                          D.C. Civil Action No. 00-cv-05888
                           (Honorable Anne E. Thompson)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 14, 2005
        Before: SCIRICA, Chief Judge, FISHER and ALDISERT Circuit Judges

                                (Filed December 8, 2005)


                               OPINION OF THE COURT

PER CURIAM.

       Kenny Morgan, a New Jersey state prisoner, appeals pro se from an adverse jury

verdict entered in the United States District Court for the District of New Jersey. Finding

no error, we will affirm.
       Morgan commenced this civil rights action pro se, but the District Court appointed

him counsel who filed an Amended Complaint pursuant to 42 U.S.C. § 1983 against

prison officials, numerous corrections officers, a prison law librarian, and medical staff.

Morgan alleged that he was assaulted by the officers, and that prison officials denied him

showers and yard time, provided unsanitary cell conditions, and poisoned his food in

violation of the Eighth and Fourteenth Amendments.1

       The defendants filed a motion for judgment on the pleadings, which was denied.

The defendants then filed a motion for partial summary judgment. The District Court

granted the motion as to the failure-to-protect claim against defendants Terhune and

Hendricks, but denied it as to the claim regarding the conditions of confinement.

Thereafter, the defendants renewed their motion for summary judgment as to the

conditions of Morgan’s confinement, contending (as they did in their Answer to the

Amended Complaint) that Morgan failed to exhaust administrative remedies. The District

Court granted summary judgment as to the claim concerning the conditions of

confinement, but denied it as to Morgan’s remaining claims. Morgan proceeded to trial

on his excessive force claim against four corrections officers and a prison sergeant. At

the conclusion of the three-day trial, the jury returned a verdict in favor of the defendants,

finding that Morgan failed to prove by a preponderance of the evidence that any of the




   1
   Morgan asserted three additional claims in his Amended Complaint, but abandoned
them in the final pre-trial order.

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defendants violated the Eighth Amendment by intentionally using excessive force against

Morgan. Morgan filed a motion for new trial, which was denied. This appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

       As a threshold matter, Morgan has not provided a copy of the trial transcript, and

thus he cannot contend on appeal that a jury finding or conclusion is unsupported by, or

contrary to, the evidence. See Fed. R. App. P. 10(b)(2). In any event, because Morgan

raises no substantive argument on appeal regarding the adverse jury verdict or the District

Court’s denial of his motion for a new trial, he has waived his opportunity to challenge

these rulings. See Fed. R. App. P. 28(a)(5); United States v. Pellulo, 

, 222

(3d Cir. 2005). Instead, Morgan argues that the District Court improperly granted

summary judgment in favor of defendants Terhune and Hendricks on the failure-to-

protect claim. See Br. at 9-10.2

       To prevail on an Eighth Amendment failure-to-protect claim, a prisoner must

establish that the prison 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 v. Brennan, 

, 837 (1994). To survive summary

judgment, Morgan is thus required “to produce sufficient evidence of (1) a substantial




   2
   We exercise plenary review over the District Court’s grant of summary judgment.
Hamilton v. Leavy, 

, 746 (3d Cir. 1997).

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

causation.” Hamilton v. Leavy, 

, 746 (3d Cir. 1997).

       As the District Court concluded, Morgan has not met his burden of establishing

that Terhune and Hendricks acted with deliberate indifference. Morgan did not submit

any evidence indicating that he had been mistreated prior to the incident by correctional

officers or other prison officials. In fact, Morgan conceded during his deposition

testimony that before the alleged altercation, he did not have any “problems” with the

officers. Finally, Morgan’s letter written to Terhune and Hendricks summarizing the

incident after it occurred is insufficient to establish that Morgan suffered from a

substantial risk of serious harm or that the defendants were deliberately indifferent to that

risk. On this record, the District Court properly granted the defendants’ motion for

summary judgment.

       For the foregoing reasons, we will affirm the District Court’s judgment.

Appellees’ motion to strike Morgan’s informal brief is denied.




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