ALD-182                                                              NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                          No. 18-1936
                                          ___________

                                  ROGER TODD VACTOR,
                                              Appellant

                                                 v.

SUPERINTENDENT MICHAEL OVERMYER; CORRECTIONAL OFFICER JASON
 W. REED; CORRECTIONAL OFFICER JAMES; CORRECTIONAL OFFICER P.D.
  MEANS; CORRECTIONAL OFFICER PAUL W. WINGER; CORRECTIONAL
OFFICER J.W. BARGER; CORRECTIONAL OFFICER R.A. JOHNSON, Correctional
  Officer Sergeant; CORRECTIONAL OFFICER JOHN DOE-1; CORRECTIONAL
      OFFICER JOHN DOE-2; and CORRECTIONAL OFFICER JOHN DOE-3
                     ____________________________________

                      On Appeal from the United States District Court
                          for the Western District of Pennsylvania
                                (D.C. Civil No. 1:16-cv-00027)
                      District Judge: Honorable Susan Paradise Baxter
                        ____________________________________

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2),
      Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6,
                    and on Appellant’s Motion for Summary Action
                                     May 9, 2019
                Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges

                                 (Opinion filed June 26, 2019)
                                         _________

                                           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

       Appellant Roger Todd Vactor is a Pennsylvania inmate currently confined at SCI-

Forest, a maximum security prison. Vactor filed a civil rights action against several

corrections officers (“COs”) at SCI-Forest (collectively with the prison’s Superintendent,

“Defendants”), raising claims under the Eighth Amendment. Vactor alleged that on

February 22, 2014, he was involved in a fight with an inmate named Gerald “Alstin.”1

During the fight, one of the Defendants (CO Robert James) allegedly put Vactor in a

chokehold and left him exposed to repeated punches, scratches and bites from Alstin, all

while the other COs looked on without intervening for an extended period of time.

       Defendants answered the complaint and, after several months of discovery, moved

for summary judgment. Relying on Vactor’s deposition testimony as well as video

footage of the February 22, 2014 altercation, Defendants argued that Vactor had failed to

adduce evidence of an Eighth Amendment excessive force claim against CO James, an

Eighth Amendment failure-to-protect claim against any of the other COs, or a

supervisory liability claim against the Superintendent. In his summary judgment

opposition brief, Vactor primarily disputed the reliability of the video footage.

       The District Court granted the Defendants’ motion for summary judgment. In

doing so, the District Court described in detail the video footage of the February 22, 2014


1
 It appears from the record that this inmate’s last name is “Alston,” not Alstin, but we will
maintain the latter spelling here to be consistent with the District Court’s opinion.
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altercation, observing in pertinent part that it took a total of nine COs to subdue Vactor

and Alstin, that the COs were able to do so roughly two minutes into the fracas, and that

Alstin did not re-attack Vactor after the pair was separated. See Vactor v. Overmyer, DC

No. 1:16-cv-00027, 

, at *3 (W.D. Pa. Mar. 26, 2018).

       The District Court first concluded as a matter of law that, under the factors set

forth in Whitley v. Albers, 

, 321 (1986), CO James was “entitled to

summary judgment as there is no evidence that demonstrates that he applied force to

maliciously and sadistically cause harm, rather than in a good faith effort to maintain and

restore discipline.” Vactor, 

, at *5. In reaching that conclusion, the

District Court observed that “[t]here was a need for the application of force here. Two

inmates were engaged in a full-blown altercation.” 

Moreover, CO James “was

initially the only staff member in the vicinity and was standing in between the two

inmates when Alstin reach[e]d across James and poked [Vactor] hard in the face and

when [Vactor] responded by throwing the first punch.” 

Additionally, the

District Court took note of Vactor’s admission in deposition testimony “that he pushed

James out of the way in order to better reach Alstin.” 

Court next concluded with respect to the other COs that the absence

of excessive use of force by CO James was fatal to Vactor’s ‘failure-to-protect’ claim;

alternatively, the video footage made clear that none of the COs even “had an opportunity

to intervene to stop James’ chokehold on” Vactor. 

District Court

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concluded that Vactor failed to show evidence of “personal involvement” by the prison

Superintendent—his denying grievances filed by Vactor was not enough—or of the

necessary elements for supervisory liability to attach.

       Judgment was entered in favor of all Defendants and against Vactor, who then

filed a Notice of Appeal. We have jurisdiction under 28 U.S.C. § 1291. We review an

order granting summary judgment de novo, applying the same standard as the District

Court did. Blunt v. Lower Merion Sch. Dist., 

, 265 (3d Cir. 2014). Summary

judgment is proper if, viewing the record in the light most favorable to the non-moving

party, there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fakete v. Aetna, Inc., 

, 337 (3d Cir. 2002).

       We discern no error below. In particular, the District Court carefully assessed the

evidence in the record which, viewed in the light most favorable to Vactor, reveals no

triable issues of fact with respect to the excessive force and failure-to-protect claims

under the Eighth Amendment. Furthermore, without evidence of an underlying

constitutional violation, Vactor could not and did not satisfy any plausible theory of

supervisory liability. See Barkes v. First Corr. Med., Inc., 

, 316 (3d Cir.

2014), rev’d on other grounds, Taylor v. Barkes, 

(2015) (per curiam).

Thus, for substantially the reasons given by the District Court, we will summarily affirm

its judgment. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir. I.O.P. 10.6 (2018). In light of our

disposition, Vactor’s separate motions for counsel and to remand proceedings are denied.

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