2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/929NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3161

___________ SHANNON BOWMAN ,

Appellant

v. SENIOR CORRECTIONAL OFFICER MAZUR; DR. DANIEL LEONARD, Clinical Director;

WARDEN J. YOST

_ ___________________________________ On Appeal from the United States District Court for the We stern District of Pennsylvania (D.C. Civil Action No. 08

- cv - 0 0173 ) District Judge: Honorable Kim R. Gibson

____________________________________ Submitte d Pursuant to Third Circuit LAR 34.1(a)

May 9, 2011
Before: AMBRO, HARDIMAN and VAN ANTWERPEN , Circuit Judges

(Opinion filed : July 6, 2011 )

___________ OPINION

___________ PER CURIAM
Pro se a ppellant , Shannon Bowman , appeals from the o rder of the United States
District Court for the We stern District of Pennsylvania entering judgment in favor of2

a ppellee s and dismissing his complaint . For the reasons that follow, we will affirm the District Court‟s judgment

. I.
Since t he facts underlyin g the instant appeal are well

- known to the parties, only a summary is provided here. I n August 2008, Bowman, a prisoner currently housed at
USP

- Terre Haut e, submitt ed a complaint in the United States District Court raising a
claim un der Bivens v. Six Unknown Named Agents of Fed

. Bureau of Narcotics , 403 U.S. 388 (1971). Bowman, who is a diabetic, apparently experienced a hypoglycemic event (e.g., shaking in bed) on January 2, 2 007, while housed in the Segregated Housing
Unit (“SHU”) at FCI

- Loretto. Corrections Officer Mazur brought food to Bowman‟s cell to address his low blood sugar. Unfortunately, Bowman fell while getting off of the top bunk to get the food and injured himself. Bowman alleges that Officer Mazur, Dr. Daniel
Leona rd, the Clinical Director at FCI

- Loretto , and Warden J. Yost (collectively referred to as the “BOP Appellees”) ignored the fact that he was medically entitled to a bottom bunk, and thus violated his Eighth Amendment right by their deliberate indifference i n assigning him to a top bunk when he was placed in the S HU on December 21, 2006

. Bowman claims that he suffered a “severe back injury” as a result of the fall, and sought in excess of $2,000,000 in compensatory and punitive damages.
After the close of di scovery, the BOP Appellees filed a motion for summary judg ment together with a brief and concise s tatement of m aterial f acts in support. After having been granted an extension of time, Bowman filed his response and opposition.3

T he Magistrate Judge to who m the complaint was referred thereafter issued a Report and
Recommendation that the BOP Appellees ‟ motion for summary judgment be granted. The Magistrate Judge initially concluded that summary judgment in favor of the BOP
A ppellees was warranted on accoun t of Bowman‟s failure to dispute their statement of material facts. Despite having provided Bowman a directive regarding his need to comply with Local Rule 56.1.C.1 and comprehensive instructions on how to go about fulfilling that obligation, Bowman nonet heless failed to cite to specific portions of the record in support of his responsive concise statement of fact. T he Magistrate Judge thus
concluded that Bowman failed to c reat e a genuine issue of material fact with respect to
the BOP Appellees ‟ record e vidence that they lacked the deliberate indifference mindset required by Farmer v. Brennan , 511 U.S. 825, 837 (1994), to make out an Eighth
Amendment claim. The Magistrate Judge further determined that, even accepting Bowman‟s
statement of material facts a nd denials as true, the BOP Appellees were nonetheless entitled to summary judgment. T he Magistrate Judge concluded that there was no
evidence in the record to establish the subjective prong of an Eighth Amendment claim given Bowman‟s failure to show that defendants knew he had a “lower bunk restriction”
and/ or believed that such a restriction was medically necessary. Over Bowman‟s objections, the District Court adopted the Report and
Recommendation . The District Court rejected Bowman‟s excuse that a lac k of understanding of the court‟s local rules resulted in his deficient response to the BOP4

Appellees‟ concise statement of material facts . The court thus found no unfairness in the Magistrate Judge‟s recommendation that summary judgment be granted in fa vor of the BOP Appellees based on Bowman‟s failure to comply with Local Rule 56.C. , nor did the court find any error in the Magistrate Judge‟s alternative merits analysis. Accordingly, it adopted the Report and Recommendation as the opinion of the court, and grante d summary judgment in favor of the BOP Appellee s. This timely appeal followed.
II. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court‟s grant of summary judgment is plenary and we must affirm if there is no gen uine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322

- 23 (1986) . “Where the record taken as a
whole could not lead a rational trier of fact to find for the non

- moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). A genuine issue of material fact is one that could change the outcome of the litigation. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 24 8 (1986). After a careful review of the record and the parties‟ briefs on appeal, we discern no error in the District Court‟s grant of summary judgment in favor of the BOP Appellees

. As noted previously , because Bowman failed to file a proper response to the BOP Appellees‟ statement of material facts in accordance with the District Court‟s Local Rule of Court 56.C, t he District Court deemed A ppellees‟ statement of material facts to be admitted pursuant to its Local Rule of Cou rt 56. E. We have recognized that s uch a5

local rule is permissible so long as the District Court also conducts a merits review and
renders a finding that judgment for the moving party is “appropriate” in accordance with
Federal Rule of Civil Procedure 56

. See Anchorage Assocs. v. V.I. Bd. of Tax Review , 922 F.2d 168, 175 (3d Cir. 1990). Because the District Court conducted a merits analysis

an d Bowman has not challenged this aspect of the District Court‟s decision , we will not
disturb its decision to deem the BOP Appellees‟ statement of material facts as undisputed. 1
This determination is actually of little import in the instant case, however, as we
ag ree with the District Court‟s conclusion that, even accepting Bowman‟s responsive
statements and denials themselves as true, the record in this case is woefully deficient of any evidence indicating that the BOP Appellees acted with deliberate indifference in assigning h im to a top bunk in the RHU. T he principles for establishing a priso n er‟s Eighth Amendment claim were established by the Supreme Court i n Estelle v. Gamble , 429 U.S. 97 (1976) , and Farmer v. Brennan , 511 U.S. 825 (1994), and requir e a prisoner

1 Even affording Bowman‟s filings a liberal construction, w e conclude that any such challenge has been waived insofar as it has not been so much as mentioned in his pro se informal opening brief. An appellant is “required to set forth the issues raised on appeal and to present an argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz , 1 F.3d 176, 182 (3d Cir. 1993); see Fed. R. App. P. 28(a) (5), (9). “ I t is well settled that an appellant ‟ s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal

. ” United States v. Pelullo , 399 F.3d 197, 222 (3d Cir. 2005) . The instant appeal presents no circumst ances which counsel against application of that rule. See , e.g. , Timson v. Sampson , 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed ab andoned.” (internal citations omitted)).6

to allege a sufficiently serious medical need

– the objective component

– and deliberate
indifference by prison officials in response to that need

– the subjective component

. The BOP Appellees do not dispute that Bowman‟s insulin

- dependent diabetic condition amounts to a serious medical need within the meaning of the Eighth
Amendment , s ee Natale v. Camden C nty

. Corr

. Facility , 318 F.3d 575, 582 (3 d Cir. 2003) , and Bowman has been receiving care for that condition durin g his period of
incarcer ation. The BOP Appellees also do not dispute that a “lower bunk” pass , which had been issued back in September 2002 in response to Bowman‟s complaints of frequent night

- time urination , was eventually located in Bowman‟s medical file during the administrative appeal process that subsequently took place

. The record is, however, deficient of evidence demonstrating that th e BOP Appellees were deliberately indifferent

to a medical need associated with Bowman‟s diabetic condition when they failed to assign him to a lower bunk upon his transfer to the SHU more than four years after the
issuance of that lower bunk restriction

. In addition to Dr. Leonard‟s understanding that there i s no medical policy requiring diabetics to have a bottom bunk assignment and no awareness on his part that Bowman‟s diabetic condition made a bo ttom bunk a medical necessity at the time of the January 2007 incident , see Ap pe l l e e s‟ Supp. App. at 73, 85, 100 , t he BOP Appellees stated that Bowman‟s file had been searched upon his request for a lower bunk assignment and no such pass was found. See Supp. App. at 121. Even if Dr. Leonard was negligent in fa iling to see the possibility that Bowman‟s condition carried with it the7

need for a bottom bunk assignment in 2006

- 2007, “[i] t is well

- settled that claims of negligence or medical malpractice, without some more culpable st ate of mind, do not constitute „ de liberate indifference. ‟ ” Rouse v. Plantier , 182 F.3d 192, 197 (3 d Cir. 1999)

. Additionally, we cannot say that Appellees Mazur and Yost were deliberately indifferent

to Bowman‟s need for a bottom bunk restriction as a result of , perhaps, their mere negli gence in searching his prison file, especially where his treating physician was of the opinion that no such restriction was medical ly nec essary. See Spruill v. Gillis , 372 F.3d 218, 236 (3d Cir. 2004). Accordingly, the grant of summary judgment was appro priate.
III. Based on the foregoing, we will affirm the District Court‟s judgment. 2

2 Bowman‟s motion to amend the complaint is denied.