1

BLD-423 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3203

___________

KENNETH MURCHISON,

Appellant

v.

WARDEN LEWISBURG USP; NORTHEAST REGIONAL 

DIRECTOR NORWOOD, Director of the Northeast Region of FBOP; 

UNKNOWN ADMINISTRATIVE REMEDY COORDINATORS; 

HENRY J. SADOWSKI, Tort Claim Coordinator; 

POTTER, Physician Assistant; PIGOS, Physician Assistant; 

SORT TEAM MEMBERS

__________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3:11-cv-01944)

District Judge: Honorable Matthew W. Brann

____________________________________

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

September 12, 2013

Before: HARDIMAN, GREENAWAY, JR. and SCIRICA, Circuit Judges

(Opinion filed: October 18, 2013)

_________

OPINION

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PER CURIAM

Pro se Appellant Kenneth Murchison appeals the District Court’s order granting 

Defendants’ motion to dismiss or, in the alternative, for summary judgment. For the 

reasons set forth below, will summarily affirm the District Court’s judgment. See 3d Cir. 

L.A.R. 27.4; I.O.P. 10.6. 

I.

Because we primarily write for the parties, we will recite only the facts necessary 

for our discussion. Murchison is an inmate at the United States Penitentiary Lewisburg, 

in Lewisburg, Pennsylvania (“USP-Lewisburg”). He filed a Bivens1action against Dr. 

Kevin Pigos and Physician Assistant Potter (“PA Potter”) alleging that they rendered 

improper medical care in violation of the Eighth Amendment with respect to treatment of 

his diabetes.2 Specifically, Murchison claims that Dr. Pigos and PA Potter intentionally 

 

1 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 

388 (1971).

2

In his original complaint, Murchison named as defendants various prison officials. The 

District Court dismissed with prejudice Murchison’s claims for damages against the 

Defendants in their official capacities, as well as his Eighth Amendment conditions of 

confinement claim and his First Amendment denial of access to court claim and 

recommitted the case to the Magistrate Judge. Thereafter, Murchison filed an amended 

complaint to include claims against Dr. Pigos and PA Potter. The District Court 

dismissed all of Murchison’s claims, except for his Eighth Amendment claim for denial 

of proper medical care against PA Potter and Dr. Pigos and granted Murchison forty-five 

days to file a second amended complaint, limiting it to five specific claims. Murchison 

never filed a second amended complaint and the District Court treated Murchison’s 

claims as proceeding on his first amended complaint with respect only to his claim for 

denial of proper medical care against PA Potter and Dr. Pigos. We find no error in the 

Court’s doing so.
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lowered the dosage of his pain medication, Gabapentin 3, without notice or any 

examination, in retaliation for a prior conflict he had with PA Potter.

4

 

Dr. Pigos and PA Potter filed a motion to dismiss the complaint, or in the 

alternative, a motion for summary judgment. Murchison did not respond to the 

Defendants’ statement of material facts and the District Court granted the motion, 

concluding that Murchison failed to exhaust his administrative remedies and that he 

failed to prove the elements of an Eighth Amendment claim because the Defendants’ 

undisputed evidence showed that they did not act with deliberate indifference to a serious 

medical need. This appeal followed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of 

a district court’s order granting or denying summary judgment, applying the same 

standard as the district court. See Tri–M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir. 

2011). We will affirm only if “drawing all reasonable inferences in favor of the 

nonmoving party, there is no genuine issue as to any material fact and . . . the moving 

party is entitled to judgment as a matter of law.” Id. We may summarily affirm the 

District Court’s decision if the appeal presents no substantial question. See L.A.R. 27.4; 

I.O.P. 10.6.

 

3 Gabapentin is used to treat polyneuropathy, which is a neurological disorder associated 

with his diabetes. 

4 Murchison included these allegations in a previous motion for a preliminary injunction, 

requesting immediate transfer to USP-Allenwood, which the District Court denied.
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III.

In the context of Eighth Amendment claims based on medical care, a plaintiff 

must demonstrate deliberate indifference to a serious medical need. Estelle v. Gamble, 

429 U.S. 97, 106 (1976). “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). For instance, a plaintiff may make this showing by establishing 

that the defendants “intentionally den[ied] or delay[ed] medical care.” Id. (quotation 

marks omitted). However, “[w]here a prisoner has received some medical attention and 

the dispute is over the adequacy of the treatment, federal courts are generally reluctant to 

second guess medical judgments and to constitutionalize claims which sound in state tort 

law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979) 

(internal quotation marks omitted). 

We agree with the District Court that the undisputed evidence shows that Dr. 

Pigos and PA Potter did not violate Murchison’s Eighth Amendment right to proper 

medical care.5 The record shows that Murchison was seen on a regular basis by the 

 

5

The United States District Court for the Middle District of Pennsylvania’s local Rule 

56.1 is clear: “The papers opposing a motion for summary judgment shall include a 

separate, short and concise statement of the material facts, responding to the numbered 

paragraphs set forth in the” moving party's Rule 56.1 statement. M.D. Pa. Local R. 56.1.

The facts in the moving party's statement are deemed admitted “unless controverted by 

the statement required to be served ” by the nonmovant. Id. Here, the Defendants’ 

statement of material facts are supported by citations to the record. Thus, given that 

Murchison did not respond to the Defendants’ statement of material facts, the District 

Court did not err in concluding that the Defendants’ material facts are undisputed.
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medical staff for treatment of his diabetes and related conditions. Specifically, with 

respect to his pain medication, when Dr. Pigos first saw Murchison in May 2011, he 

prescribed insulin to treat his diabetes and Gabapentin to treat his pain. In July 2011, due 

to an increase in neuropathic pain, a physician assistant increased Murchison’s dose of 

Gabapentin from 900 mg to 1200 mg. In August 2011, Murchison again complained of 

pain and the physician assistant increased his dosage to 1200 mg in the morning and 1800 

mg in the evening. The medical records show that Dr. Pigos co-signed the order and the 

same prescription was refilled in November 2011 and again in March 2012. In the end of 

March 2012, Murchison’s dosage of Gabapentin was increased to 1800 mg, twice a day. 

Throughout this period, there are additional medical records showing that Murchison was 

seen by medical staff for related problems, including his insulin dosage.

Based on this record evidence, which Murchison has not disputed, the Defendants 

treated Murchison’s pain and, in fact, increased the dosage of his Gabapentin, rather than 

decreasing it as he alleged. There is nothing in the record to demonstrate that Dr. Pigos 

or PA Potter acted with deliberate indifference with respect to Murchison’s medical 

needs, or that they improperly denied him treatment. To the extent that Murchison 

disagrees with the dosage he received, a prisoner’s disagreement with proper medical 

treatment does not imply a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 

235 (3d Cir. 2004). Accordingly, the District Court properly granted summary judgment 

in favor of the Defendants because there is no genuine issue of material fact and there is 
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no evidence that the Defendants exhibited deliberated indifference to a serious medical 

need.6

IV.

For the foregoing reasons, no substantial question is presented and we will affirm 

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

 

6 Because we conclude that summary judgment is appropriate in this instance, we do not 

need to address whether Murchison exhausted his administrative remedies with respect to 

his claims against PA Potter and Dr. Pigos.