ALD-044 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3716

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TONY L. HAYNES,

Appellant

v.

T. MOORE, WARDEN; WILLIAM CRIELLY, DENTIST; MR. WILY, DENTIST

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

(D.C. Civil No. 2-09-cv-04958)

District Judge: Honorable Timothy J. Savage

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Submitted for Possible Dismissal Due to Jurisdictional Defect, 

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

November 17, 2011

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: December 6, 2011)

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OPINION

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PER CURIAM.

In September 2009, Tony L. Haynes, previously a prisoner of the Bucks 

County Department of Corrections, filed suit pro se and in forma pauperis against T. 

Moore, the prison warden of the Bucks County Correctional Facility, and two dentists at 
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the institution, whose names he gave as Mr. Crowley and Mr. Wily. Proceeding under 42 

U.S.C. § 1983, he claimed that the dentists improperly extracted his wisdom tooth, 

causing a permanent hole in his gum and severe irritation and pain. Haynes also alleged 

that the dentists were deliberately indifferent to his serious medical needs in violation of 

the Eighth Amendment when they ignored his ten subsequent requests for follow-up care 

and denied him further treatment to fix the injury between February 2009 and September 

2009. Haynes also presented a claim against Moore for a perceived failure to investigate 

a grievance Haynes filed.

The United States Marshals‟ Service tried without success to effect service 

on the dental defendants. Moore, after being served with the complaint, moved to 

dismiss it. The District Court granted the motion and dismissed the complaint as to 

Moore.

Haynes subsequently submitted another form complaint. On the form, 

Haynes listed Moore, a dentist with the name of Crielly, and a John Doe dentist as 

defendants. On the form, he outlined the problems he had with the tooth extraction and 

aftermath (including what he described as a “hole” in another tooth) and explained that he 

had learned the proper name of one of the dental defendants. He stated that it was Crielly 

who put the hole in his gum and Crielly he wished to sue. Haynes explained that he 

submitted a grievance about the matter, citing the January 2009 grievance attached to his 

initial complaint. In his complaint, he also stated that it was dentists at the State 
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Correctional Institute at Somerset (SCI-Somerset), where he currently resides, who had to 

fix his dental problem.

Moore filed another motion to dismiss. The District Court again dismissed 

the suit as to him. The District Court also dismissed the rest of the action after noting 

that Haynes had not filed a motion to amend the complaint, treating the amended 

complaint as a motion to amend the complaint, and denying it as futile. 

Haynes appealed. He explained that he was trying to sue a dentist named 

“Dr. Crillcey” at Bucks County Correctional Facility and another dentist whose name he 

did not know, and filed a motion to dismiss Moore from the appeal. We granted his 

motion and considered waived any challenge to the order dismissing Moore from the suit. 

Haynes v. Moore, 405 F. App‟x 562, 565 (3d Cir. 2011). We vacated the order in which 

the District Court construed Haynes‟s amended complaint as a motion to amend, denied it 

on the basis that amendment was futile, and dismissed the action. Id. Although we 

concluded that the District Court did not err in dismissing the claims as to “Crowley” and 

“Wily” because Haynes admitted providing the wrong names for them, we held that the 

District Court should have permitted Haynes to amend his complaint to correct the name 

of one of the dentists who was initially misidentified. Id. at 564-65. 

On remand, the District Court filed the amended complaint and service was 

effected on the dentist whose true name is William Crielly. In March 2011, Crielly filed 

a motion to dismiss or, in the alternative, a motion for summary judgment. On April 28, 

2011, the District warned Haynes that Crielly‟s motion would be granted if Haynes did 
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not file a response by May 13, 2011; the District Court issued a similar warning on 

August 10, 2011, with a deadline of September 8, 2011. In the interim, the District Court 

granted Haynes‟s motion for appointment of counsel, but no counsel was secured from 

the Prisoners‟ Civil Rights Panel before the District Court granted Crielly‟s motion on 

September 22, 2011. The District Court entered two other orders shortly thereafter to 

make it clear that the action had been terminated against “Crowley,” because that was the 

wrong name for Crielly, and against Moore, because his motion to dismiss had been 

granted previously. The District Court also entered an order to show cause why the 

action should not be dismissed against “Wily.” 

Haynes appeals. With his appeal, he presents a “motion for medical 

malpractice,” in which he cites 42 Pa. C.S. § 5103(a) (relating to the transfer of matters 

erroneously filed in the wrong state court), 42 Pa. C.S. § 6503 (describing the right to 

apply for a writ of habeas corpus), and the 8th and 14th Amendments to the United States 

Constitution in arguing that he has suffered a wrong. 

The first issue is whether we have jurisdiction over the appeal despite the 

claim that the District Court understands it to be pending against Wily. For jurisdiction 

to attach under 28 U.S.C. § 1291, a judgment must be final as to all parties, all causes of 

action, and the whole subject- matter. See Andrews v. United States, 373 U.S. 334, 340 

(1963) (citing Collins v. Miller, 252 U.S. 364 (1920)); Mellon Bank, N.A. v. Metro 

Communications, Inc., 945 F.2d 635, 640 (3d Cir. 1991). In actions involving multiple 

claims and parties, a district court may direct the entry of final judgment on fewer than all 
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of the claims and parties on the express determination that there is no just reason for 

delay. See Fed. R. Civ. P. 54(b) (explaining the requisite determination under the rule); 

Gomez v. Gov‟t of the Virgin Islands, 882 F.2d 733, 736 (3d Cir. 1989). However, a 

defendant who has not been served is not a “party” within the meaning of Rule 54(b). 

See Gomez, 882 F.2d at 736; see also United States v. Studivant, 529 F.2d 673, 674 n.2 

(3d Cir. 1976). In this case, the order appealed from ended the case as to Crielly, the suit 

against Moore was previously dismissed, and the remaining defendant, Wily, was never 

served. (Furthermore, Haynes previously admitted that he did not wish to sue a 

defendant named “Wily.”) Accordingly, even if the District Court‟s show cause order 

relating to the suit against Wily is pending, the judgment is final as to all parties.

Concluding that we have jurisdiction under 28 U.S.C. § 1291, we exercise 

plenary review over the District Court‟s order.1 Abramson v. William Patterson College, 

260 F.3d 265, 276 (3d Cir. 2001). On review, we will summarily affirm the District 

Court‟s judgment because no substantial issue is presented on appeal. See 3d Cir. Local 

Rule 27.4; 3d Cir. I.O.P. 10.6.

The District Court properly granted summary judgment in favor of Crielly 

on Haynes‟s Eighth Amendment claim. The Eighth Amendment mandates that prisoners 

receive access to basic medical treatment. See Estelle v. Gamble, 429 U.S. 97, 104 

 

1 Although Crielly, in his motion, asked for a “dismissal” of the complaint whether his 

motion to dismiss or his motion for summary judgment was granted, and the District 

Court used the term “dismissed” in its order, we understand the District Court‟s order as 

granting the motion for summary judgment. 
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(1976). “Only „unnecessary and wanton infliction of pain‟ or „deliberate indifference to 

the serious medical needs‟ of prisoners [is] sufficiently egregious to rise to the level of a 

constitutional violation.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Violations 

include the intentional infliction of pain on a prisoner; the denial of reasonable requests 

for medical treatment where the denial exposes the prisoner to undue suffering or the 

threat of tangible residual injury; and the intentional refusal to provide care in cases 

where the need for medical care is known. Id. The medical condition must be serious; 

and the prison officials must be deliberately indifferent to it. Id. at 235-36. However, 

neither claims of medical malpractice nor a disagreement about a course of treatment 

establishes a constitutional violation. Id. at 235.

Based on the evidence presented by Crielly, after Haynes‟s wisdom tooth 

was extracted, Haynes unfortunately experienced a complication that is a known risk of 

the procedure (of which he was informed before the procedure). Haynes apparently also 

suffered discomfort because the extraction site became filled with food and debris despite 

the fact that Crielly had given Haynes detailed oral hygiene instructions. Crielly 

regularly and repeatedly examined Haynes, despite Haynes‟s documented refusal to 

allow himself to be treated on more than one occasion. Crielly took X-rays of the 

affected area, prescribed medication and special toothpaste, and discussed treatment 

options with Haynes. On Haynes‟s request, he was referred to a dentist at an outside 

facility, who concurred in Crielly‟s diagnosis and continued Haynes‟s treatment over the 
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course of several appointments. Within this uncontroverted2account of what happened, 

there is no evidence of wanton or intentional infliction of pain or deliberate indifference 

to a serious medical need. To the contrary, there is evidence that Crielly regularly 

provided medical care to Haynes in response to Haynes‟s requests for treatment.3 

For these reasons, the District Court properly granted judgment in favor of 

Crielly. We will affirm the District Court‟s judgment. Haynes‟s “motion for medical 

malpractice” is denied. 

 

2 Despite two invitations from the District Court to respond to Crielly‟s motion or risk the 

motion being granted, Haynes did not oppose the motion at all. 

3 Although Haynes refers to malpractice in his motion on appeal, as we noted above, a

claim of medical malpractice does not establish a constitutional violation. Spruill, 372 

F.3d 235. Furthermore, we do not read Haynes‟s complaint to include a claim of medical 

malpractice under state law. As Crielly pointed out, Haynes could not succeed on such a 

claim anyway, as Haynes did not file the required certificate of merit. See LiggonRedding v. Estate of Sugarman, No. 08-4336, 2011 U.S. App. LEXIS 20123, at *2 & *16

(3d Cir. Oct. 4, 2011).