Filed: Feb. 20, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-20-2008 Dancy v. Collier Precedential or Non-Precedential: Non-Precedential Docket No. 07-4329 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Dancy v. Collier" (2008). 2008 Decisions. Paper 1564. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1564 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-20-2008 Dancy v. Collier Precedential or Non-Precedential: Non-Precedential Docket No. 07-4329 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Dancy v. Collier" (2008). 2008 Decisions. Paper 1564. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1564 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-20-2008
Dancy v. Collier
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4329
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Dancy v. Collier" (2008). 2008 Decisions. Paper 1564.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1564
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-131 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4329
___________
LARRY DANCY,
Appellant
v.
MR. COLLIER; MR. DIVERSE; MR. SNYDER;
MR. NOON; MR. TRGOVAC; MR. WILLISON;
MR. SMITH; MR. MATTHEWS
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-02301)
District Judge: Honorable Edwin M. Kosik
____________________________________
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 14, 2008
Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges.
Filed: February 20, 2008
_________
OPINION
_________
PER CURIAM
Larry Dancy, a federal prisoner, brought suit against prison officials and
employees relating to an assault he suffered at the hands of another inmate. He claimed
that after he filed a race discrimination claim with the Justice Department against some
Defendants, other Defendants leaked confidential information from his case. He
contended that in response to hearing the leaked information, another inmate stabbed him.
He also alleged that Defendants denied him medical treatment for the stab wound and
hindered his attempts to grieve his complaints. As the parties are familiar with the facts,
we will refer to other details only as they become relevant.
Defendants filed a motion to dismiss or, in the alternative, a motion for summary
judgment. Dancy filed a motion for appointment of counsel, then he submitted a response
to Defendants’ motion. The District Court denied Dancy’s counsel motion without
prejudice to its renewal in the event that any of his claims went to trial. Then, the District
Court treated Defendants’ motion as a motion for summary judgment and granted it.1
Dancy appeals and moves for appointment of counsel.
We will summarily affirm the District Court because no substantial issue is
presented on appeal. See L.A.R. 27.4; I.O.P. 10.6. Because we conclude that Dancy’s
1
The District Court properly concluded that Dancy, who had captioned his
response a response to a “motion for summary judgment,” had notice of the nature of
Defendants’ motion from its title.
2
appeal is not meritorious, we deny his motion for appointment of counsel. See Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993).
The District Court did not abuse its discretion in denying Dancy’s motion for
appointment of counsel. The District Court identified the appropriate considerations and
did not err in concluding that it was not necessary to appoint counsel. See Tabron, 6 F.3d
at 155-58.
The District Court properly granted summary judgment in favor of Defendants on
Dancy’s claim that Defendants did not provide him with appropriate and timely medical
care for his stab wound because Dancy failed to exhaust his administrative remedies for
this claim. A prisoner who challenges prison conditions must exhaust available
administrative remedies before filing suit in federal court. See 42 U.S.C. § 1997e;
Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006); Booth v. Churner,
532 U.S. 731, 739
(2001). However, although Dancy has sought relief through administrative remedies 35
times in prison, he did not follow the procedures set forth at 28 C.F.R. § 542 et seq. to
raise his claim of a lack of medical care following his stabbing. Dancy contended that
Defendant Synder’s referral of an appeal of a decision denying a different grievance to
the Bureau of Prisons (“BOP”) Regional Office interfered with his ability to seek
administrative relief for his medical care claim, but we do not agree. The referral of an
3
unrelated appeal to the Regional Office 2 could not have affected the available remedy for
his medical care claim.
Furthermore, the District Court properly granted summary judgment in favor of
five Defendants (Marie Trgovac, Timothy Noone, James Collier, Troy Williamson, and
Joseph Smith) 3 for lack of personal involvement. Dancy makes no claims against
Defendants Trgovac, Noone, and Collier in his complaint; he merely mentions that he
filed his Justice Department complaint against them. In response to their declarations
denying involvement in the other acts Dancy alleged, Dancy did not otherwise implicate
them. As for Defendants Williamson and Smith, Dancy explicitly sought to impose
liability on them on a respondent-superior theory, which cannot be done in this Bivens4
action. See, e.g., Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (citing cases).
The District Court also properly granted the remaining Defendants’ (Richard
Divers’s and Todd Matthews’s) request for summary judgment on the basis of qualified
immunity. Qualified immunity shields government officials from liability for civil
damages “insofar as their conduct does not violate clearly established statutory or
2
As the District Court explained, the referral was reasonable under the
circumstances.
3
Here and elsewhere, we substitute correct spellings for the spellings in the
caption.
4
Dancy proceeds under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), the federal counterpart to § 1983 claims against state
actors. See Egervary v. Young,
366 F.3d 238, 246 (3d Cir. 2004).
4
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The inquiry into the applicability of qualified
immunity is twofold: (1) whether the plaintiff demonstrated the deprivation of a
constitutional right, and (2) whether that right was established at the time of the alleged
deprivation. Saucier v. Katz,
533 U.S. 194, 201 (2001). As the District Court concluded,
Dancy did not show the deprivation of a constitutional right.
Dancy claimed that Defendant Matthews provided Divers with information from
an affidavit he submitted in the investigation of his race discrimination claim. He alleged
that Divers then retaliated for the filing of the claim by revealing to an inmate named
Haynes that Dancy had mentioned his name and caused him to be transferred to an
undesirable prison program. Dancy contended that he was stabbed by another inmate
(who remains unnamed) as a result.
Defendants presented evidence that Matthews was the only officer involved in the
investigation and that he did not reveal the contents of Dancy’s affidavit to Divers or
others. Divers averred that he did not even know about the investigation until months
after the stabbing occurred. Dancy did not respond with evidence to put Defendants’
declarations in controversy. As the District Court noted, Dancy did not even explain the
5
basis for his belief that Matthews leaked information to Divers or that Divers passed
along information to Haynes.5
In sum, the District Court properly denied Dancy’s motion for appointment of
counsel and granted Defendants’ motion for summary judgment. Accordingly, we affirm
the District Court’s judgment. Also, we deny Dancy’s motion for appointment of
counsel.
5
Also, the internal investigation of the stabbing paints a very a different story of
the cause of the altercation that led to the stabbing, namely that Dancy instigated a fight
with another inmate.
6
