2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-2011

Shannon Bowman v. Mazur

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3161

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NOT PRECEDENTIAL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 Western District of Pennsylvania

(D.C. Civil Action No. 08-cv-00173 )

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted 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 appellant, Shannon Bowman, appeals from the order of the United States 

District Court for the Western District of Pennsylvania entering judgment in favor of 
2

appellees and dismissing his complaint. For the reasons that follow, we will affirm the 

District Court‟s judgment.

I.

Since the facts underlying the instant appeal are well-known to the parties, only a

summary is provided here. In August 2008, Bowman, a prisoner currently housed at 

USP-Terre Haute, submitted a complaint in the United States District Court raising a 

claim under 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, 2007, 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 

Leonard, 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 in 

assigning him to a top bunk when he was placed in the SHU 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 discovery, the BOP Appellees filed a motion for summary 

judgment together with a brief and concise statement of material facts in support. After 

having been granted an extension of time, Bowman filed his response and opposition. 
3

The Magistrate Judge to whom 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 

Appellees was warranted on account 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 nonetheless failed to cite to specific portions of the 

record in support of his responsive concise statement of fact. The Magistrate Judge thus 

concluded that Bowman failed to create a genuine issue of material fact with respect to 

the BOP Appellees‟ record evidence 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 and denials as true, the BOP Appellees were nonetheless 

entitled to summary judgment. The 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 lack of 

understanding of the court‟s local rules resulted in his deficient response to the BOP 
4

Appellees‟ concise statement of material facts. The court thus found no unfairness in the 

Magistrate Judge‟s recommendation that summary judgment be granted in favor 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 granted 

summary judgment in favor of the BOP Appellees. 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 genuine 

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, 248 (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, the District Court deemed Appellees‟ statement of material facts to 

be admitted pursuant to its Local Rule of Court 56.E. We have recognized that such a 
5

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

and 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

agree 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 him to a top bunk in the RHU. The principles for establishing a prisoner‟s

Eighth Amendment claim were established by the Supreme Court in Estelle v. Gamble,

429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1994), and require a prisoner 

 

1

 Even affording Bowman‟s filings a liberal construction, we 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). “It 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 circumstances 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 abandoned.” (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, see Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 

2003), and Bowman has been receiving care for that condition during his period of 

incarceration. 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 the 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 is no medical policy 

requiring diabetics to have a bottom bunk assignment and no awareness on his part that 

Bowman‟s diabetic condition made a bottom bunk a medical necessity at the time of the 

January 2007 incident, see Appellees‟ Supp. App. at 73, 85, 100, the 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 failing to see the possibility that Bowman‟s condition carried with it the 
7

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 state of mind, do not 

constitute „deliberate indifference.‟” Rouse v. Plantier, 182 F.3d 192, 197 (3d 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 

negligence in searching his prison file, especially where his treating physician was of the 

opinion that no such restriction was medically necessary. See Spruill v. Gillis, 372 F.3d 

218, 236 (3d Cir. 2004). Accordingly, the grant of summary judgment was appropriate.

III.

Based on the foregoing, we will affirm the District Court‟s judgment.2

 

2

 Bowman‟s motion to amend the complaint is denied.