KOJO MUATA and CARLOS LOPEZ v. MARCUS O. HICKS, Esq., Commissioner of the Department of Corrections

DLD-131 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-3210
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KOJO MUATA and CARLOS LOPEZ,
Appellants
v.
MARCUS O. HICKS, Esq., Commissioner of the Department of Corrections;
JAMES SLAUGHTER, Administrator of East Jersey State Prison;
CITY OF RAHWAY NEW JERSEY, County of Middlesex
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:21-cv-13033)
District Judge: Honorable Susan D. Wigenton
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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
April 21, 2022
Before: KRAUSE, MATEY and PHIPPS, Circuit Judges
(Opinion filed: July 7, 2022)
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OPINION*
_________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Kojo Muata and Carlos Lopez, inmates at East Jersey State Prison proceeding pro
se and in forma pauperis, appeal from the District Court’s order dismissing their complaint
pursuant to 28 U.S.C. § 1915(e). For the reasons that follow, we will summarily affirm.
I.
In June 2021, plaintiffs brought this civil rights action under 42 U.S.C. § 1983,
alleging that defendants violated the Eighth Amendment and Pennsylvania tort law related
to their handling of the COVID-19 pandemic. Specifically, plaintiffs alleged that
defendant James Slaughter, the former administrator of East Jersey State Prison, failed to
protect prisoners from COVID-19 and was deliberately indifferent to their serious medical
needs when he implemented inadequate policies, including social distancing procedures
that were not followed by lower ranking officials; that defendant Marcus Hicks, the
commissioner of the Department of Corrections, failed to provide a viable way for
prisoners to practice social distancing and ignored their serious medical needs; and that
defendant City of Rahway, the city in which East Jersey State Prison is located, was
negligent and deliberately indifferent to prisoners’ needs. The District Court screened the
action under 28 U.S.C. § 1915(e) and dismissed it for failing to state a claim upon which
relief may be granted. Plaintiffs now appeal.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review over
a District Court’s sua sponte dismissal of a complaint under § 1915(e). Dooley v. Wetzel,
957 F.3d 366, 373 (3d Cir. 2020). To avoid dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Talley

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v. Wetzel, 15 F.4th 275, 286 n. 7 (3d Cir. 2021) (cleaned up). “When assessing the
complaint, we are mindful of our obligation to liberally construe a pro se litigant’s
pleadings, particularly where the pro se litigant is imprisoned.” Id. (cleaned up). We may
summarily affirm if the appeal fails to present a substantial question. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6.
III.
To succeed on an Eighth Amendment claim for inadequate medical care, “a plaintiff
must make (1) a subjective showing that the defendants were deliberately indifferent to his
or her medical needs and (2) an objective showing that those needs were serious.” Pearson
v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (cleaned up). To establish
deliberate indifference, a plaintiff must show that a particular defendant knew of and
disregarded an excessive risk to his health and safety. Farmer v. Brennan, 511 U.S. 825,
837 (1994). “To act with deliberate indifference to serious medical needs is to recklessly
disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.
2009).
Plaintiffs failed to adequately allege that Slaughter or Hicks1 acted with deliberate
indifference in their implementation of prison policies. Even if plaintiffs could show that
Slaughter and Hicks knew of the risk posed by COVID-19, despite its unprecedented and
unpredictable nature, they have failed to allege that either defendant disregarded that risk
1 It appears that most of plaintiffs’ specific allegations involve policies implemented by
Slaughter or the governor of New Jersey, who is not listed as a defendant. Plaintiffs do
not make any specific factual allegations involving Hicks and, instead, only allege
generally that he failed to provide adequate COVID-19 policies.

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when creating the prison’s policies. While plaintiffs allege that the prison’s COVID-19
policies were insufficient and did not allow for adequate social distancing, they also
acknowledge that prison officials took a variety of risk mitigation measures, including
providing masks to staff and inmates, removing ill inmates from the general population,
increasing cleaning measures in common spaces, and limiting inmates’ contact with
outsiders by imposing a lockdown. Plaintiffs also acknowledge that some social distancing
practices were initiated in the prison, including limiting inmates’ movements, confining
inmates to their housing units, and housing dining workers in single cells. Considering the
significant measures taken to mitigate the risk of COVID-19, plaintiffs failed to adequately
allege that Slaughter or Hicks recklessly disregarded a substantial risk of harm. Giles, 571
F.3d at 330; see also Hope v. Warden York Cty. Prison, 972 F.3d 310, 330 (3d Cir. 2020)
(concluding that, in the context of immigration detention, the Government’s failure to
contain COVID-19 and eliminate all risk of exposure did not constitute deliberate
indifference as would violate due process).
For the same reasons, the District Court properly dismissed plaintiffs’ failure-to-
protect claims. A prison official cannot be found liable under the Eighth Amendment for
failure to protect an inmate unless the official subjectively knew of and chose to disregard
a substantial risk of serious harm to an inmate’s health or safety, i.e., unless the official
was deliberately indifferent to the risk. See Farmer, 511 U.S. at 837; Hamilton v. Leavy,
117 F.3d 742, 746 (3d Cir. 1997). Plaintiffs’ allegations failed to establish that Slaughter
or Hicks were deliberately indifferent to the risks of COVID-19, and thus the District Court
did not err in concluding that plaintiff failed to state a failure-to-protect claim.

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Moreover, defendants in civil rights actions “must have personal involvement in the
alleged wrongs to be liable and cannot be held responsible for a constitutional violation
which he or she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d
187, 210 (3d Cir. 2007) (quotation marks and citations omitted). “Personal involvement
can be shown through allegations of personal direction or of actual knowledge and
acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The District
Court properly dismissed plaintiffs’ claims that Slaughter and Hicks were liable for their
subordinates’ failure to follow prison policies, as plaintiffs do not adequately allege that
Slaughter and Hicks directed their subordinates to disregard the policies or that they knew
that the policies were being defied. The District Court also properly dismissed plaintiffs’
claims against the City of Rahway on the basis that plaintiffs did not allege any personal
involvement by the City in the operation of the prison or the implementation of policies
therein.2
IV.
Accordingly, we will affirm the judgment of the District Court. See 3d Cir. LAR
27.4; I.O.P. 10.6.
2 Plaintiffs also alleged that defendants were negligent under Pennsylvania state law.
Because the claims over which it had original jurisdiction were properly dismissed, the
District Court did not err in declining to reach the state negligence claim. See Hedges v.
Musco, 204 F.3d 109, 123 (3d Cir. 2000).

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