CLD-088                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-3580
                                     ___________

                                  DAVID E. KATES,
                                            Appellant

                                           v.

   USP LEWISBURG WARDEN; DIRECTOR FEDERAL BUREAU OF PRISONS
               ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 3:11-cv-00391)
                     District Judge: Honorable Matthew W. Brann
                     ____________________________________

        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
                                 November 27, 2013

            Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                           (Opinion filed: December 4, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Federal prisoner David Kates appeals pro se from the District Court’s order

granting summary judgment in favor of the remaining defendant in this civil rights action
brought by Kates pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 

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

                                                        I.

        Since July 2010, Kates has been incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania (“USP Lewisburg”). In early 2011, he commenced this action

against B.A. Bledsoe (USP Lewisburg’s warden at that time and until his retirement in

April 2012), and Harley G. Lappin (the Director of the Bureau of Prisons at that time),

alleging that his cell conditions at USP Lewisburg violated his Eighth Amendment rights.

In support of this claim, Kates alleged, inter alia, that the cells reached temperatures up to

120 degrees, were roach- and rat-infested, and contained chipped lead paint and asbestos.

According to Kates, his health deteriorated because of these conditions, causing him to

suffer, inter alia, respiratory problems, heat rashes, and weight loss.1

        Shortly after the complaint was filed, Magistrate Judge J. Andrew Smyser

screened the complaint and recommended that Lappin be dismissed from the lawsuit

because Kates did not “allege facts from which it can reasonably be inferred that

defendant Lappin was aware of or acquiesced in the conditions at USP Lewisburg.”

(Mag. J. Report & Recommendation entered May 11, 2011, at 9.) Kates concurred with

that recommendation, and the District Court adopted it on July 20, 2011.2




1
  To the extent that Kates complains about the current conditions at USP Lewisburg, those complaints are outside
the scope of this appeal.
2
  Kates does not challenge that decision here.

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          In October 2011, Bledsoe moved for dismissal or, in the alternative, summary

judgment. The District Court, treating that filing as a motion to dismiss, denied that

relief.

          In January 2013, Bledsoe again moved for summary judgment, arguing that he

was entitled to qualified immunity. Magistrate Judge Susan E. Schwab, to whom the

case had been reassigned, recommended that the motion be granted. In her report,

Magistrate Judge Schwab rejected Kates’s argument that the motion was improper

because Bledsoe had previously moved for summary judgment. She then concluded that

Bledsoe was entitled to qualified immunity because (1) Kates had failed to establish an

Eighth Amendment violation, and (2) it was not clearly established that the prison

conditions to which Kates was subjected violated the Eighth Amendment. Magistrate

Judge Schwab explained that the asbestos in USP Lewisburg had been abated before

Kates even arrived there, that he had not submitted evidence demonstrating the presence

of lead paint or a rat infestation, and that he had admitted that, after the prison fumigated

for roaches in 2010, there was only the occasional roach or other insect. As for Kates’s

complaint about the heat, Magistrate Judge Schwab noted that his cell had a window and

was equipped with running cold water. Moreover, she concluded that, even if “Kates has

presented sufficient evidence for a reasonable trier of fact to conclude that based on the

heat he was denied the minimal civilized measure of life’s necessities,” his claim still

failed because “he has not presented sufficient evidence for a reasonable trier of fact to

conclude that [Bledsoe] was deliberately indifferent to a substantial risk of serious harm.”

(Mag. J. Report & Recommendation entered July 25, 2013, at 19.) On August 14, 2013,

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the District Court adopted Magistrate Judge Schwab’s recommendation and closed the

case. This appeal followed.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de

novo the District Court’s decision to grant Bledsoe’s motion for summary judgment. 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 “the 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

law.” James v. City of Wilkes-Barre, 

, 679 (3d Cir. 2012).

       For substantially the reasons set forth in Magistrate Judge Schwab’s July 25, 2013

report, which the District Court adopted, we agree that Bledsoe’s October 2011 motion,

which was treated as a motion to dismiss, did not bar him from filing his January 2013

                                               4
summary judgment motion. Furthermore, for substantially the reasons set forth in that

same report, we agree that Kates failed to make out an Eighth Amendment violation and

that, as a result, Bledsoe was entitled to summary judgment on qualified immunity

grounds.3 In Kates’s argument in support of this appeal, he avers that his objections to

Magistrate Judge Schwab’s report were timely submitted to prison officials but did not

reach the District Court until after the court had ruled on Bledsoe’s summary judgment

motion. Having reviewed those objections, we find them unpersuasive and cannot

conclude that they warrant disturbing the District Court’s decision to adopt Magistrate

Judge Schwab’s recommendation.

         Kates’s argument in support of this appeal also accuses the defendants’ counsel of

making false statements and engaging in other improper conduct during the District Court

proceedings. Furthermore, Kates claims that unidentified prison officials have harassed

him, retaliated against him, confiscated his legal materials, assaulted him, and engaged in

“other unprofessional conduct since the start of this [case].” But Kates has not

demonstrated that this alleged conduct meaningfully impacted this case or that it justifies

vacating the District Court’s judgment.4


3
  In her report, Magistrate Judge Schwab observed that, “[i]n accordance with Local Rule [of Civil Procedure] 56.1,
[Bledsoe] filed a statement of material facts and supporting documents, and Kates filed a response to the statement
or [sic] material facts.” (Mag. J. Report & Recommendation entered July 25, 2013, at 8.) Although Kates’s
response disputed some of those facts, Magistrate Judge Schwab treated them as undisputed because Kates “does not
cite to record evidence to support such a dispute.” 

Kates’s response ourselves, we note that it
does include some references to prisoner affidavits (which Magistrate Judge Schwab highlighted later in her report,
(see 

and other evidence submitted by Kates contemporaneously with his response. Nevertheless, this
evidence did not create a genuine dispute as to a material fact. We also note that, given our conclusion that Kates
failed to make out a constitutional violation, we need not decide whether he satisfied the other prong of the qualified
immunity test.
4
  To the extent that Kates wishes to pursue relief against those unnamed prison officials, the appropriate course to
take would be to file a new Bivens action in the District Court. We take no position on his likelihood of prevailing
in such an action.

                                                          5
       We have considered Kates’s remaining arguments and conclude that they do not

entitle him to relief here. Because this appeal does not present a substantial question, we

will summarily affirm the District Court’s decision granting Bledsoe’s motion for

summary judgment. See 3d Cir. I.O.P. 10.6.




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