NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                           _______________

                                No. 15-3040
                              _______________

                         GREGORY F. ROBINSON,
                                      Appellant

                                      v.

       COMMISSIONER CARL C. DANBERG; WARDEN PERRY PHELPS;
          MAJOR SCAROBOROUGH; STAFF LT. KAREN HAWKINS;
             SGT. WILFRED BECKLES; SGT. STANFORD HENRY;
         CPL SGT. ANGELINA DEALLIE; SGT. VERONICA DOWNING;
        C/O NICKOLAS MOHR; LT. MARK DAUM; LT. PAUL HARVEY;
      LT. TRADER; LT. KOLAWCHE AKINBAYO; C/O TRACEY HARRIS;
     C/O SCOTT; C/O CARMELINO R. SEATON; C/O JASON M SCHAFFER;
          C/O MARTIN BURTON; C/O RODDOCKER; C/O KURKLIN;
  BRIAN ENGREM, Law Librarian; SGT. VALEZ; SGT. EVERETT; C/O HICKS;
 SGT. KESHAW TRAVIES; LT. STANLEY BAYNARD; C/O WILLIAM MORRIS;
         C/O GEORGE PIERCE; C/O WAGNER; C/O GREGORY HALL;
  LT. LARRY SAVAGE; C/O KENWYN D’HEUREUX; C/O ANDREW CHASE;
SGT. ROY FORAKER; C/O ORLANDO DEJESUS; STAFF LT. STEPHEN FURMAN;
      LT. THOMAS SEACORD; CMS MEDICAL DEPARTMENT CMS INC.;
   DELAWARE DOC; NURSE BETTY BRYANT; NURSE LISA SUGARMAN;
 NURSE CHRISTINA; NURSE AMIN; NURSE CAROL BIANCHI; NURSE MARK;
  NURSE DIVINE EBWELLE; John Doe, Nurse (Took blood on 12/7/09 & 2/8/10)

               ________________________________________

                On Appeal from the United States District Court
                          for the District of Delaware
                          (D.Del. No. 1-10-cv-00362)
                  District Judge: Honorable Sue L. Robinson
               ________________________________________

                           Argued: April 14, 2016
                Before: AMBRO, SMITH,* and KRAUSE, Circuit Judges

                               (Filed: December 19, 2016)

David A. Felice, Esq. (Argued)
Bailey & Glasser
2961 Centerville Road, Suite 302
Wilmington, DE 19808
       Counsel for Appellant

Joseph C. Handlon, Esq. (Argued)
Ophelia M. Waters, Esq.
Delaware Department of Justice
820 North French Street, 6th Floor
Wilmington, DE 19801
      Counsel Appellees

                                _____________________

                                      OPINION†
                                _____________________

KRAUSE, Circuit Judge

       Gregory Robinson appeals a District Court order granting summary judgment in

favor of Appellees, various prison officials, on Robinson’s Eighth and Fourteenth

Amendment claims alleging excessive use of force and unlawful conditions of

confinement. For the reasons set forth below, we will affirm in part, reverse in part, and

vacate in part. This matter will be remanded for proceedings consistent with this opinion.


       *
       Honorable D. Brooks Smith, United States Circuit Judge for the Third Circuit,
assumed Chief Judge status on October 1, 2016.
       †
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.


                                             2
       I. Background

       Gregory Robinson was convicted in 2008 of felony possession of a dangerous

weapon and sentenced to eight years incarceration at the James T. Vaughn Correctional

Center in Delaware. He raises a number of pretrial and post-conviction excessive-force

and condition-of-confinement claims spanning from 2008, when he was in pretrial

detention, to 2010, when he was serving his sentence.

       II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We

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

       We exercise plenary review over an order granting summary judgment, applying

the same standard as the District Court. Tri-M Grp., LLC v. Sharp, 

, 415 (3d

Cir. 2011). “Summary judgment is proper ‘if 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.’”

Thomas v. Cumberland Cty., 

, 222 (3d Cir. 2014) (quoting Fed. R. Civ. P.

56(a)). A dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

, 248

(1986). At summary judgment, courts must refrain from weighing the evidence or

making credibility determinations, 

and are required to “view the facts in the

light most favorable to the nonmoving party and draw all inferences in that party’s

favor,” Gonzalez v. Sec’y of Dep’t of Homeland Sec., 

, 257 (3d Cir. 2012).

Nonetheless, the nonmoving party must offer more than a “mere ‘scintilla of evidence’”

                                             3
to create a genuine issue of material fact, Ramara, Inc. v. Westfield Ins. Co., 

, 666 (3d Cir. 2016) (quoting 

), and conclusory affidavits

are insufficient to survive summary judgment. See MD Mall Assocs., LLC v. CSX

Transp., Inc., 

, 485 n.6 (3d Cir. 2013) (“Summary judgment is proper only

where the pleadings, discovery, and non-conclusory affidavits show that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of

law.”).

          III. Discussion

          Robinson appeals nine claims from the District Court’s entry of summary

judgment: one pretrial excessive-force claim, two post-conviction excessive-force claims,

three pretrial condition-of-confinement claims, and three post-conviction condition-of-

confinement claims. We analyze his pretrial claims under the Fourteenth Amendment

and his post-conviction claims under the Eighth Amendment.

          A. Pretrial Excessive Force

          Robinson first raises a pretrial excessive force claim against Correctional Officer

Beckles for allegedly injuring his hand while uncuffing him in his cell. According to

Robinson, when Beckles returned Robinson to his cell following a disagreement between

them, Beckles “tried to hit [Robinson] in the back with the [cell] door, but . . . caught

[his] foot” instead. J.A. 130. Once Robinson was secured in his cell, Beckles allegedly

uncuffed him by “put[ting] his foot on the door and . . . yank[ing] the left cuff off[,] . . .

split[ting] the top of [Robinson’s] hand.” J.A. 130. Beckles’ incident report and

                                                4
deposition testimony gave a different narrative. He asserted that Robinson ignored

“several direct order[s] to come [to the cell door flap] to be uncuffed.” S.A. 2. When

Robinson finally complied, and Beckles started to uncuff him, Robinson “tr[ied] to yank

his hand away from [Beckles],” Appellant’s Br. 7 (quoting the incident report), which

presented a security concern because “an open cuff [could be used] as a weapon.” S.A. 2.

Neither Beckles’ incident report nor his deposition testimony mentions hitting

Robinson’s foot with the cell door.

       Robinson’s pretrial excessive force claim is governed by the Due Process Clause

of the Fourteenth Amendment, which “protects a pretrial detainee from the use of

excessive force that amounts to punishment.” Kingsley v. Hendrickson, 

,

2473 (2015) (quoting Graham v. Connor, 

, 395 n.10 (1989)). To

demonstrate a due process violation, a detainee must prove “that the force purposely or

knowingly used against him was objectively unreasonable,” meaning “that the actions

[were] not ‘rationally related to a legitimate nonpunitive governmental purpose.’” 

v. Wolfish, 

, 561 (1979)). We consider the so-called Kingsley

factors: “[1] the relationship between the need for the use of force and the amount of

force used; [2] the extent of the plaintiff’s injury; [3] any effort made by the officer to

temper or to limit the amount of force; [4] the severity of the security problem at issue;

[5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was

actively resisting.” 

District Court granted judgment in favor of Beckles, finding Robinson’s

“minor” or “minimal” injuries were insufficient to support a Fourteenth Amendment

claim. Robinson v. Beckles, 

, 536 (D. Del. 2015). We conclude the

District Court erred by focusing exclusively on the severity of Robinson’s injury at the

expense of the other Kingsley factors. A detainee’s injury is only one of several factors

to be considered in determining whether the application of force was punitive, 

, and while we have held in the context of the Eighth Amendment that

“the degree of injury is relevant[,] . . . there is no fixed minimum quantum of injury that a

prisoner must prove that he suffered through objective or independent evidence in order

to state a claim for . . . excessive force.” Brooks v. Kyler, 

, 104 (3d Cir.

2000). The touchstone of a due process claim is whether the application of force was

punitive. 

. The District Court thus erred by granting

summary judgment on Robinson’s claim solely on the ground that his injuries were too

“minor” to support a due process claim. Rather, the Court should also have considered

the remaining Kingsley factors – the relationship between the need for the use of force

and the amount of force used, any effort made by Beckles to temper or limit his use of

force, the severity of the security problem at issue, the threat reasonably perceived by

Beckles, and whether Robinson was actively resisting.

       Moreover, in making that assessment, the District Court was duty bound to view

the facts in the light most favorable to Robinson and draw all inferences in his favor.

. The question at summary judgment, after all, is simply

                                              6
whether a genuine issue of material fact exists for the jury. Thus, even recognizing that

Beckles offered a different account of what transpired and the fact that a reasonable jury

may well credit his version of the events, the District Court was required to view the facts

in the light most favorable to Robinson, taking into account his deposition in which he

stated he was securely locked in his cell and offered no resistance to Beckles at the time

of the alleged incident. Giles v. Kearney, 

, 326 (3d Cir. 2009) (accepting

inmate’s testimony as true for purposes of summary judgment and noting that “an inmate

who is proceeding pro se . . . is in a decidedly difficult position from which to generate

‘record evidence’ on his behalf . . . [and,] under these circumstances, his affidavits . . . are

about the best that can be expected from him [at the summary judgment phase of] the

proceedings” (quoting 

n.7)). On that basis, a reasonable

factfinder could conclude Beckles’ use of force was excessive because Robinson,

according to his own account, was securely locked in his cell and was offering no

resistance when Beckles removed his handcuffs.

       In sum, given that the District Court failed to address all the relevant Kingsley

factors and erroneously rejected Robinson’s due process claim solely on the ground

Robinson’s injuries were too minor as to this claim, we will vacate the District Court’s

judgment and remand for further proceedings.1


       1
         Notwithstanding his agreement that the District Court erred by focusing
exclusively on the severity of the gash to Robinson’s hand, Chief Judge Smith would
affirm the grant of summary judgment on this claim. Chief Judge Smith does not believe
that a reasonable factfinder, viewing the situation “from the perspective of a reasonable

                                               7
       B. Post-conviction Excessive Force

       Robinson raises two post-conviction excessive force claims, one against

Correctional Officer Downing and one against Correctional Officer DeAllie. In his first

claim, he alleges Downing struck him in the face during a cell “shakedown” for no

reason. Appellant’s Br. 10. As to the second claim, Robinson alleges DeAllie maced

him while he was locked in his cell.

       Robinson’s post-conviction excessive-force claims are governed by the Eighth

Amendment, which protects convicted prisoners from cruel and unusual punishment.

Force amounts to cruel and unusual punishment when it is applied “maliciously and

sadistically for the very purpose of causing harm” instead of “in a good faith effort to

maintain or restore discipline.” Hudson v. McMillian, 

, 6 (1992) (quoting

Whitley v. Albers, 

, 320-21 (1986)). Like the Kingsley factors, several

factors should be considered: “[1] the need for the application of force, [2] the

relationship between the need and the amount of force that was used, [3] . . . the extent of

injury inflicted, . . . [4] the extent of the threat to the safety of staff and inmates, as

reasonably perceived by the responsible officials . . . , and [5] any efforts made to temper

the severity of a forceful response.” 

(internal quotation mark



officer on the scene,” including the officer’s knowledge that Robinson had not been
compliant in the showers and that he had yet to have his handcuffs removed while
secured in this cell, and mindful of the security concern posed by an open handcuff, could
conclude that the “force” used against [Robinson] in removing the handcuffs was
objectively unreasonable.” 

.


                                                8
omitted) (quoting Johnson v. Glick, 

, 1033 (2d Cir. 1973) (Friendly, J.)).

The extent of an injury “may suggest ‘whether the use of force could plausibly have been

thought necessary’ in a particular situation,” but “[t]he absence of serious injury” while

“relevant to the Eighth Amendment inquiry . . . does not end it.” 

(quoting 

).

       The District Court analyzed Robinson’s claim against Downing for allegedly

striking him in the face under the Due Process Clause of the Fourteenth Amendment,

noting that “[p]laintiff also claims his due process rights were violated on two days in

September 2009 when defendant Downing allegedly filed false reports to cover up the

fact that she hit him in the mouth and caused injury.” 

.

But the District Court’s opinion is devoid of any consideration of Robinson’s Eighth

Amendment claim, i.e., that Downing’s alleged act of striking Robinson was an Eighth

Amendment violation in the first place. At oral argument, counsel for Appellees asserted

that, although the District Court only mentioned Robinson’s Due Process claim, it

rendered an Eighth Amendment ruling implicitly. We disagree. The District Court’s

decision turned on Downing’s alleged filing of a false report after the incident, a question

grounded in the Fourteenth Amendment’s Due Process clause. 

Amendment claim, however, was based on Downing’s alleged use of excessive force in

the striking incident, a subject not even mentioned by the District Court in this part of its

analysis, much less analyzed under relevant Eighth Amendment case law. Accordingly,




                                              9
the District Court’s grant of summary judgment against Robinson on this claim will be

vacated and remanded for further consideration.

       The second post-conviction excessive-force claim relates to an incident in which

Correction Officer DeAllie allegedly maced Robinson while he was locked in his cell.

The District Court found that there was “no incident reports or logbook entries

evidencing th[e] incident” and the evidence did not “prove” that DeAllie “sprayed the

mace.” 

. However, Robinson’s allegation was

buttressed not only by his own declaration, see 

(suggesting that an

inmate’s affidavit may be sufficient to create a genuine dispute of fact), but also by a

declaration by inmate Ernest Evans, who stated that DeAllie maced Robinson while he

was in his cell and that Robinson’s “shirt had to be tied around his face,” J.A. 194, and an

affidavit by inmate Kevin Jackson, who “stood in [his] cell door and watched Sgt.

DeAllie mace . . . Robinson for no just cause,” J.A. 209. Moreover, during an internal

investigation into the incident, an inspector observed “a slight discoloration to the side of

[Robinson’s] sneaker.” Appellant’s Br. 13-14 (quoting the investigation report). And

prison records demonstrate that the ventilation was turned off in the cell block in which

Robinson was housed on the day he complained about the alleged macing incident.

       Notwithstanding its conclusion that there was insufficient evidence that the

macing incident occurred, the District Court also found that, even if it did occur,

Robinson’s claim would fail because DeAllie’s use of force was de minimis. 

-44. According to Robinson’s declaration, and declarations made

                                             10
by inmates Evans and Jackson, however, Robinson was locked in his cell and posed no

imminent threat to staff and inmates at the time he was allegedly maced. Indeed,

Appellees’ counsel conceded at oral argument that there was no “legitimate penological

reason” for spraying mace into a locked cell when the inmate does not “constitute a

danger to anyone or himself,” describing such conduct as “reprehensible.” See Oral

Argument at 24:20-25:10. Moreover, the injuries alleged were not inconsequential.

Robinson asserted that the mace caused discomfort, made him cough, and forced him to

wrap a towel around his face, Evans likewise asserted that Robinson had to tie his shirt

around his face, and Jackson asserted that Robinson was unable to breathe at one point.

       Drawing all inferences in Robinson’s favor, there is sufficient evidence for a

reasonable factfinder to conclude that DeAllie maced Robinson, and that the use of force

was more than de minimis force. Accordingly, we will reverse the entry of summary

judgment on Robinson’s Eighth Amendment claim against DeAllie for the macing

incident.

       C. Pretrial Conditions of Confinement

       Robinson raises three pretrial conditions-of-confinement claims on appeal,

alleging that: (1) Correctional Officers Akinbayo and Rodocker left Robinson in his cell

with toilet water for more than seven hours, (2) Correctional Officer Beckles moved

Robinson to a blood-stained cell, which he was forced to clean without protective

equipment or cleaning materials, and (3) Correctional Officer Henry allowed an inmate to

spray urine into Robinson’s cell. The District Court held that there was insufficient

                                            11
evidence of the duration and nature of his exposure to these conditions to support a due

process claim, 

, and we agree with the District Court’s

entry of summary judgment on these claims.

       The Due Process Clause of the Fourteenth Amendment prohibits conditions of

confinement that “amount to punishment.” 

. To determine whether

conditions are punitive, we ask (1) whether there are any “legitimate purposes . . . served

by [the] conditions” and (2) “whether [the] conditions are rationally related to [those]

purposes.” Union Cty. Jail Inmates v. Di Buono, 

, 992 (3d Cir. 1983).

       The evidence in support of Robinson’s pretrial conditions claims is meager at best.

While he testified to the presence of blood, urine, and toilet water, he provided few, if

any, details about each incident. In fact, the only evidence that his toilet overflowed was

Robinson’s deposition testimony in which he denied that the flooding incident was his

fault. He presented no evidence concerning the severity of each incident (e.g., the size of

each spill, its location in his cell, and whether the toilet water was mixed with feces or

urine) or the extent of his exposure (e.g., whether there was any contact between the

spills and Robinson’s person or property). “There is, of course, a de minimis level of

imposition with which the Constitution is not concerned,” 

n.21

(quoting Ingraham v. Wright, 

, 674 (1977)), and Robinson has failed to

present evidence demonstrating that the conditions of his confinement passed this

threshold. Accordingly, as to these claims we will affirm.




                                             12
       D. Post-conviction Conditions of Confinement

       Finally, Robinson claims three violations of the Eighth Amendment relating to his

conditions of confinement after his conviction. First, he alleges Correctional Officers

Henry and Harris placed foreign objects in his food. Next, he alleges Correctional

Officers Henry, Wagner, and Moore deprived him of sleep by kicking or pounding on his

door and calling his name to wake him up on several occasions. Finally, he alleges

Correctional Officers Beckles, Downing, Henry, and Mohr called him a snitch in earshot

of other inmates. The District Court granted summary judgment on all three claims in

Appellees’ favor. We will affirm.

       The Eighth Amendment requires “humane conditions of confinement,” including

“adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 

,

832 (1994). In addition, prison officials “must take reasonable measures to guarantee the

safety of the inmates.” 

mark omitted) (quoting Hudson v. Palmer,

, 526-27 (1984). To state an Eighth Amendment violation for conditions of

confinement, an inmate must demonstrate (1) a deprivation that is “objectively,

sufficiently serious” such that it “result[s] in the denial of ‘the minimal civilized measure

of life’s necessities’” and (2) “deliberate indifference” on the part of prison officials to

“inmate health or safety.” 

(internal quotation marks omitted).

       Addressing Robinson’s first condition-of-confinement claim stemming from his

allegations that Correctional Officers Henry and Harris placed foreign objects in his food,

the District Court concluded the objects did not amount to a “substantial deprivation, or

                                              13
anything more than temporary distress.” 

. Robinson

provided evidence in support of only one incident of foreign objects in his food, which he

described as “two little pieces . . . of metal.” J.A. 139. Under well-settled Eighth

Amendment principles, Robinson failed to establish an objectively, sufficiently serious

deprivation to survive summary judgment. See Hamm v. DeKalb Cty., 

,

1575 (11th Cir. 1985) (“The fact that [prison] food occasionally contains foreign objects .

. . while unpleasant, does not amount to a constitutional deprivation.”); LeMaire v.

Maass, 

, 1456 (9th Cir. 1993) (same); Green v. Atkinson, 

, 281

(5th Cir. 2010) (“A single incident of food poisoning or finding a foreign object in food

does not constitute a violation of the constitutional rights of the prisoner affected.”);

Wishon v. Gammon, 

, 449 (8th Cir. 1992) (ruling that presence of foreign

objects in food was insufficient to prove deliberate indifference).

       Robinson’s second condition-of-confinement claim fares no better. According to

Robinson, Correctional Officers Henry, Wagner, and Moore deprived him of sleep by

repeatedly kicking or pounding on his door and calling his name to wake him up “for no

apparent reason.” J.A. 142. At most, however, Robinson was awakened several times

over a period of several years. And he acknowledged in his deposition that he can “go to

sleep when [he] want[s]” and “wake up when [he] want[s].” J.A. 142. The District Court

thus properly observed that Robinson’s allegations of sleep deprivation were “not

sufficiently serious to implicate the Eighth Amendment” and that “prison administrators

should be accorded wide-ranging deference in the adoption and execution of policies and

                                              14
practices that are needed to preserve internal order and to maintain institutional security.”

. Even viewing the record in the light most favorable to

Robinson, a reasonable jury could not return a verdict in his favor because such

inconveniences do not amount to deprivations of the minimal civilized measure of life’s

necessities. Peterkin v. Jeffes, 

, 1026-28 (3d Cir. 1988) (affirming the

district court’s finding that sound from inmates talking and noise from televisions and

radios in prison, “while it may be irritating to some prisoners, cannot fairly be said to

inflict cruel and unusual punishment”).

       Last, Robinson alleges Correctional Officers Beckles, Downing, Henry, and Mohr

created a dangerous condition of confinement by calling him a snitch in earshot of other

inmates. The District Court ruled that Robinson failed to “substantiate [his] claim[],”

observing that “repeated investigations and opportunities for [Robinson] to present such

evidence have yielded nothing.” 

. On appeal, Robinson

argues that the District Court improperly weighed the evidence and made credibility

determinations about witnesses, and that, although the snitch comments have not resulted

in bodily harm, he lives in constant fear of retaliation from other inmates.

       While these allegations are particularly troublesome, as even the Appellees

acknowledged during oral argument that calling an inmate a snitch may have dire

consequences when overheard by other inmates, see Oral Argument at 33:40-33:50, we

ultimately agree with the District Court that there is insufficient evidence for a reasonable

jury to conclude that the Correctional Officers “have, with deliberate indifference,

                                             15
exposed [Robinson] to an unreasonable risk of harm.” 

(internal quotation marks omitted). The Eighth Amendment imposes on prison officials a

duty “to protect prisoners from violence at the hands of other prisoners,” 

, and that maxim is especially pertinent where, as Robinson contends in this

case, it was prison officials that engendered the conditions for violence in the first place.

Even so, the Eighth Amendment extends only to objectively, sufficiently serious

deprivations, and Robinson has failed to offer sufficient evidence to support his claim.

       In his deposition, Robinson stated that he had been called a snitch since 2008, and

he submitted declarations by two inmates, Larry Pierce and Daniel Irwin, summarily

asserting that Robinson has been called a snitch several times. But when Robinson was

asked, “[w]hat has been the result of this claim that you’re a snitch, what has happened to

you, if anything,” Robinson simply replied, “[it t]urned a lot of inmates against me that

want to do something to me.” J.A. 143. He further asserted in his deposition that

inmates were “always sending death threats and stuff like that,” J.A, 143, but offered no

documents or other evidence to substantiate this assertion and acknowledged that he had

not had “any one-on-one contact with any inmate” because of the snitch comments or

“had any fights with any inmates.” J.A. 144. As for the Pierce and Irwin declarations,

they offer no details that would provide credence to their threadbare recital of Robinson’s

snitch allegations, and we have required more than conclusory affidavits to create a

genuine issue of material fact. MD Mall 

n.6. In the absence of

any substantiation of his allegations, especially in light of the alleged pervasiveness of the

                                              16
snitch comments, Robinson has failed to produce sufficient evidence from which a

reasonable trier of fact could find in his favor.

       In sum, we will affirm the District Court’s entry of summary judgment on

Robinson’s post-conviction condition-of-confinement claims.

       IV. Conclusion

       For the foregoing reasons, we will reverse the District Court’s judgment on

Robinson’s excessive force claim against Correctional Officer DeAllie for allegedly

macing his cell. We will further vacate and remand the District Court’s judgment on

Robinson’s excessive force claim against Correctional Officer Beckles for allegedly

injuring his hand while removing the handcuffs. Finally, we will remand Robinson’s

excessive force claim against Correctional Officer Downing for allegedly striking

Robinson in the face because the District Court failed to address this claim. We will

affirm the District Court’s judgment on all remaining counts.




                                              17