                                                          NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 13-4259
                                  _____________

                                ROBIN S. VALDEZ,
                                                         Appellant
                                         v.

          CARL DANBERG; PERRY PHELPS; CHRISTOPHER KLEIN;
           CERTAIN INDIVIDUAL EMPLOYEES OF THE STATE OF
         DELAWARE DEPARTMENT OF CORRECTION; DAVID PIERCE



                          On Appeal from the District Court
                              for the District of Delaware
                         (District Court No.: 1-11-cv-00216)
                     District Judge: Honorable Leonard P. Stark


                               Argued on July 9, 2014


           Before: RENDELL, CHAGARES and JORDAN, Circuit Judges
                        (Opinion filed: August 4, 2014)


Jeffrey K. Martin, Esquire (Argued)
Martin & Associates, P.A.
1508 Pennsylvania Avenue
Suite 1C
Wilmington, DE 19806

                          Counsel for Appellant
Ryan P. Connell, Esquire (Argued)
Delaware Department of Justice
820 North French Street
Carvel Office Building, 6th Floor
Wilmington, DE 19801

                            Counsel for Appellees



                                      OPINION


RENDELL, Circuit Judge:

       Appellant Robin Valdez appeals the order of the United States District Court for

the District of Delaware granting defendants’ motion for summary judgment on his

claims under 42 U.S.C. § 1983. For the reasons set forth below, we will affirm.

                                  I. BACKGROUND

       Valdez, who has been completely deaf since birth, was incarcerated at the James

T. Vaughn Correctional Center (“Vaughn”) in Smyrna, Delaware from April 12, 2009

through January 22, 2010. The reasons for Valdez’s incarceration are not relevant to this

appeal, and we do not address them herein.

       In early October 2009, Valdez sent a letter to Perry Phelps, Warden of Vaughn,

complaining that he had not been granted access to a telephone typewriter (“TTY”)

device, which enables hearing impaired individuals to communicate over the telephone.

The letter was received in Phelps’s office on October 5, 2009. Phelps referred the letter

to correctional counselor Ron Hosterman, with copies to Deputy Wardens Christopher

Klein and David Pierce. On October 7, 2009, Valdez followed up on his letter with a


                                             2
formal grievance, reiterating his complaints about the lack of access to the TTY and

urging that he must be permitted to use the phone two to three times per week as hearing

inmates were able to do. As with Valdez’s letter, this grievance was referred to

Hosterman. In a follow-up document, Hosterman noted that, “[f]ollowing a meeting with

his counselor which allowed the use of the TTY phone, Valdez signed off for informal

resolution of this grievance.” (J.A. 181.)

       Valdez filed a second grievance on January 7, 2010. As in the first grievance, he

stated that he was being denied access to the TTY device, and noted that he had been able

to use the TTY only twice during his entire nine-month incarceration. Like the first, this

grievance was referred to Hosterman. On January 11, Hosterman reported that, “[i]n a

meeting with his counselor, Valdez was reminded of the previous directions he received

about contacting his co[u]nselor to arrange use of the TTY, and he signed off for informal

resolution.” (J.A. 173.) Valdez was released from Vaughn eleven days later.1

       Valdez testified that he was put into solitary confinement on two occasions during

his time at Vaughn, both times for fighting with another inmate. Valdez states that he

was unable to express himself to corrections officers during these incidents due to the

lack of a sign language interpreter. On at least one of these occasions, guards used

pepper spray on Valdez. Although in pain, Valdez states that he was unable to

communicate his injuries to prison staff, and therefore received no medical attention. A


1
  Valdez testified that he filed other letters and grievances in addition to those contained
in the record. However, in the grievance filed on January 7, 2010, mere days before he
was released, Valdez states that it was his second grievance. (See J.A. 175.)

                                              3
misconduct hearing was held in connection with at least one of these incidents.2 Though

the hearing was held outside his cell, Valdez was evidently required to sit in his cell

without any way of knowing what was being said, and without any method of

communicating his version of events to the hearing officers. The hearing resulted in

Valdez’s being found guilty of misconduct.

       Valdez also testified that he had poor eyesight, but without a sign language

interpreter, was unable to effectively explain this problem to prison medical staff. As a

result of the lack of corrective treatment, he suffered from migraines. In addition, he

testified that he had pain in his appendix but had difficulty communicating this pain to

medical staff without the assistance of an interpreter.

       It is undisputed that, during the entirety of Valdez’s incarceration, Vaughn had no

policies for accommodating the needs of deaf inmates. In March of 2011, the Bureau of

Prisons instituted a new policy for compliance with the Americans with Disabilities Act,

42 U.S.C. 12101 et seq. (“ADA”), which specifically provided for “appropriate auxiliary

aids and service accommodations” for hearing impaired inmates and required that they

receive “information about the location of accessible services, activities, and facilities in

a format that is accessible to people who are deaf or hard of hearing.” (J.A. 140.)

       Valdez filed his complaint in this matter on March 11, 2011, naming Delaware

Department of Correction Commissioner Carl Danberg, Warden Phelps, and Deputy

Wardens Klein and Pierce as defendants in their individual capacities. Relevant for our


2
 It is unclear whether the pepper spray injury or the misconduct hearing occurred in
connection with the first time Valdez was put into isolation, the second, or both.
                                              4
purposes, Valdez’s complaint included: (1) a § 1983 claim for cruel and unusual

punishment for failing to accommodate his hearing disability; (2) a § 1983 claim for

failure to train and/or maintenance of wrongful customs, practices and policies; and (3) a

§ 1983 claim for cruel and unusual punishment for subjecting Valdez to solitary

confinement without a satisfactory hearing.3

       On July 26, 2012, the defendants moved for summary judgment. The District

Court granted the defendants’ motion in full, holding that: (1) Valdez had failed to

produce evidence that each of the individual defendants was personally involved in the

alleged deprivation of his rights; (2) the defendants were entitled to qualified immunity

because their conduct did not violate clearly established statutory or constitutional rights

of which a reasonable person would have known; and (3) the Court lacked personal

jurisdiction because Valdez had failed to effect personal service on the individual

defendants. Valdez filed this timely appeal.4

                                        II. DISCUSSION

       We review a district court’s grant of summary judgment de novo. Azur v. Chase

Bank USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). “Summary judgment is proper

where the pleadings, depositions, answers to interrogatories, admissions, and affidavits

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

judgment as a matter of law.” Id. (internal quotation marks and citations omitted).

3
  Valdez’s complaint also included claims under the ADA and Rehabilitation Act, 29
U.S.C. § 794 et seq., and a § 1983 claim for cruel and unusual punishment for excessive
length of detention awaiting extradition. Valdez no longer pursues those claims.
4
  The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
                                               5
        We have held that:

              To establish § 1983 liability in [the prison] context, a plaintiff
              must first demonstrate that a prison official had knowledge of
              the prisoner’s problem and thus of the risk that [harm] was
              being, or would be, inflicted. Second, the plaintiff must show
              that the official either failed to act or took only ineffectual
              action under circumstances indicating that his or her response
              to the problem was a product of deliberate indifference to the
              prisoner’s plight. Finally, the plaintiff must demonstrate a
              causal connection between the official’s response to the
              problem and the [violation of the federal right].


Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989). It is well-established that an

individual government defendant in an action under § 1983 must have had some personal

involvement in the alleged wrongdoing to be held liable. Evancho v. Fisher, 423 F.3d

347, 353 (3d Cir. 2005).

       Furthermore, it is well-established that a prison official cannot be held liable under

§ 1983 under a respondeat superior theory. See Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009); Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010); Evancho, 423

F.3d at 353. However, supervisors may still be held liable under § 1983 for their own

violations of an individual’s constitutional rights. Iqbal, 556 U.S. at 676. We have

recognized two theories of supervisory responsibility: (1) where a supervisor establishes

and maintains a policy, practice or custom which directly causes a constitutional harm;

and (2) where the supervisor participates in violating a plaintiff’s rights, directs others to

violate them, or has knowledge of and acquiesces in the violations. Santiago, 629 F.3d at

129 n.5. See also Sample, 885 F.2d at 1116-17 (supervisory liability may be imposed

only where the supervisor was the “moving force” behind the constitutional tort).

                                               6
A. Personal Involvement of Phelps, Klein and Pierce

       The only evidence in the record regarding the defendants’ knowledge of Valdez’s

difficulty gaining access to the TTY is Valdez’s October 2009 letter to Warden Phelps.

Upon receiving Valdez’s letter, Warden Phelps referred the complaint to Ron Hosterman,

with instructions to handle the issue, and sent copies to Pierce and Klein. Klein testified

that he believed the issue was being handled without his further involvement. Pierce

testified that it was incumbent upon Valdez to seek access to the telephone through his

correctional counselor. Valdez has presented no evidence demonstrating that it was the

responsibility of Phelps, Pierce or Klein to personally ensure that he was provided access

to the TTY. Cf. Sample, 885 F.2d at 1110-11 (affirming district court’s finding of liability

under § 1983 where “Diecks acknowledged . . . that he believed his investigation was the

only avenue available to an inmate challenging detention and this was confirmed by the

fact that Diecks did not refer Sample to anyone else in a position to resolve the

problem.”). Nor has Valdez presented evidence that defendants had any reason to believe

that delegating the matter to Hosterman would be insufficient. As such, Valdez has failed

to demonstrate that Phelps, Pierce or Klein were deliberately indifferent to the concerns

raised in his October 2009 letter.

       Valdez later filed two formal grievances regarding his lack of access to the TTY.

The evidence indicates that both grievances were referred to Hosterman, that Hosterman

followed up with Valdez within a matter of days, and that Valdez signed off on informal

resolutions to both grievances. There is no evidence that Phelps, Pierce or Klein ever

saw or were otherwise made aware of either of these grievances. Accordingly, Valdez

                                             7
has failed to demonstrate that any of these three named defendants were aware that there

was an ongoing problem with respect to his access to the TTY, much less that they

caused, or were deliberately indifferent to, such problems.

       None of the defendants were questioned in their depositions regarding Valdez’s

lack of a sign language interpreter during medical evaluations or treatment; accordingly,

Valdez’s testimony on these issues is uncontradicted. However, Valdez points to no

evidence that any of the named defendants were ever notified of any problems with his

access to medical care or an inability to communicate with medical staff. Nor does he

indicate that he ever filed any complaints or grievances that would have put the

defendants on notice of these issues. Accordingly, Valdez cannot demonstrate that the

defendants were personally involved in preventing him from communicating effectively

with medical personnel.

       Similarly, none of the defendants were questioned during their depositions

regarding Valdez’s lack of an interpreter during his misconduct hearing, and none dispute

Valdez’s account of that incident—i.e., that the misconduct hearing was held outside his

cell without an interpreter, and he had no way of knowing what was going on. While

such allegations, if taken as true, raise serious questions, Valdez has not pointed to any

evidence suggesting that any of the named defendants were aware that he was not granted

an interpreter during his misconduct hearing. Valdez does not indicate in his deposition

or his answers to interrogatories who was present at that hearing, and nothing in the

record suggests that any of the named defendants would normally have been present at

such hearings. Nor does he indicate that he filed any complaints or grievances that would

                                             8
have put any of these defendants on notice that he had not had the assistance of an

interpreter at his misconduct hearing. Absent such evidence, Valdez cannot demonstrate

that these defendants had any personal involvement in depriving him of his rights in

connection with his misconduct hearing. See Sample, 885 F.2d at 1110 (requiring that a

prison official have knowledge of the alleged deprivation of constitutional rights to be

found liable under § 1983).

       Nor may Phelps, Pierce or Klein be held liable under § 1983 for failing to

implement policies to accommodate deaf inmates. First, there does appear to have been a

policy in place for Valdez to request to use the TTY. As noted supra, Valdez was to

notify his correctional counselor when he wished to use the device.5 Though this might

have been difficult for him at times, that difficulty does not mean that there was no policy

in place. Moreover, Valdez has not pointed to any evidence that would demonstrate that

it was the responsibility of any of these named defendants to establish or implement

policies for providing interpreters during misconduct hearings or medical examinations or

treatment. In fact, the record indicates that when an ADA policy was ultimately

implemented, it was done at a higher level, by the Bureau of Prisons. Absent evidence

that the named defendants were responsible for implementing policies with respect to

deaf inmates but deliberately failed to do so, they cannot be held liable under § 1983.

B. Personal Involvement of Commissioner Danberg

5
 In his deposition testimony, Valdez admitted that he was aware that he needed to
contact his correctional counselor in order to request access to the TTY. He testified that
when he wished to use the TTY he would wave his hands to get the counselor’s attention,
but that it was “impossible.” (J.A. 60.) He admitted that he did get to use the TTY
“when [he] was lucky enough to get the counselor’s attention.” (Id.)
                                             9
       Valdez does not claim that Commissioner Danberg had actual knowledge of his

alleged difficulties in gaining access to the TTY device or that he did not have the

assistance of an interpreter during medical appointments or misconduct hearings. Rather,

Valdez appears to base Danberg’s liability entirely on his position as Commissioner of

the Department of Correction and his failure to implement department-wide policies

regarding the treatment of deaf inmates. In his deposition, Danberg testified that before

he took over the Department of Correction in February 2007, there were no written

policies regarding deaf inmates specifically or compliance with the ADA generally. He

testified that when he became Commissioner, he specifically asked that such a policy be

developed. In fact, Danberg testified that the Bureau-level ADA policy that was

eventually implemented in early 2011 was created at his direction.

       “Individual defendants who are policymakers may be liable under § 1983 if it is

shown that such defendants, ‘with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.’” A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d

Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.

1989)). See also Brumfield v. Hollins, 551 F.3d 322, 328 (5th Cir. 2008) (“[I]n a claim

alleging failure to promulgate policy as a basis for § 1983 liability, the failure must be an

intentional choice and amount to subjective deliberate indifference.”) (internal quotation

marks and citations omitted). See also Tafoya v. Salazar, 516 F.3d 912, 922 (10th Cir.

2008) (“At the summary judgment stage, the requirement of deliberate indifference



                                             10
imposes a burden on the plaintiff to present evidence from which a jury might reasonably

infer that the prison official was actually aware of a constitutionally infirm condition.”).

       Here, Valdez has produced no evidence suggesting that Danberg was aware that

deaf inmates had been denied use of the TTY or that any deaf inmates had not been

provided with interpreters during medical treatment or misconduct hearings. Valdez has

pointed to no evidence that Danberg was aware of any issues with deaf inmates at all. As

such, no reasonable jury could find that Danberg was deliberately indifferent to the

alleged violations of Valdez’s rights. Moreover, any claim of deliberate indifference on

Danberg’s part is undermined by his uncontradicted testimony that, when he became

Commissioner of the Department of Correction, he set about establishing a policy to

address issues arising under the ADA, including issues relating to deaf or hearing

impaired inmates. As such, Valdez has failed to adduce evidence sufficient for a

reasonable jury to find that Danberg’s failure to immediately implement an ADA policy

was the product of deliberate indifference to the problems of inmates with disabilities.

       Because we agree that Valdez has failed to identify facts that would allow a

reasonable jury to find that any of the named defendants were personally involved in the

alleged deprivation of his statutory or constitutional rights, we will affirm the District

Court’s grant of summary judgment for the defendants.6


6
  Because we affirm the District Court’s grant of summary judgment on the ground that
Valdez has failed to demonstrate the personal involvement of any named defendant, we
do not discuss in detail the issues of qualified immunity or service of process. With
respect to qualified immunity, however, we note that the right of a state prisoner to
receive reasonable accommodations under the ADA has been clearly established since
the Supreme Court’s decision in Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206
                                              11
(1998). In addition, we disagree with the District Court’s holding that it lacked personal
jurisdiction because Valdez failed to effect service of process. The defendants actively
litigated this case for over a year after serving their Answer, failing to pursue the issue of
service of process in any meaningful way until they filed their motion for summary
judgment in July of 2012—after the statute of limitations on Valdez’s § 1983 claims had
expired. By failing to press the issue earlier, they waived it. See Bel-Ray Co. v. Chemrite
Ltd., 181 F.3d 435, 443-44 (3d Cir. 1999); In re Texas Eastern Transmission Corp., 15
F.3d 1230, 1236 (3d Cir. 1994); King v. Taylor, 694 F.3d 650, 656-61 (6th Cir. 2012).
                                             12
