2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-1-2013

Tony Mutschler v. SCI Albion CHCA Health Care

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3930

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"Tony Mutschler v. SCI Albion CHCA Health Care" (2013). 2013 Decisions. Paper 1040.

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DLD-168 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3930

___________

TONY LEE MUTSCHLER,

Appellant

v.

SCI ALBION CHCA HEALTH CARE; RN. MS. SANDY MALENA

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 1:09-cv-00265)

Magistrate Judge: Honorable Susan Paradise Baxter

____________________________________

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

March 21, 2013

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: April 1, 2013)

_________

OPINION

_________

PER CURIAM

When this case was last before us, we vacated in part a District Court order 

dismissing Mutschler’s pro se prisoner-civil-rights complaint, remanding for further 

consideration of his Eighth Amendment deliberate indifference claim. See Mutschler v. 
2

SCI Albion CHCA Health Care, 445 F. App’x 617, 621 (3d Cir. 2011).

1

We have carefully reviewed the record compiled below, including the parties’ 

evidentiary submissions, and do not doubt that Mutschler experienced pain and 

discomfort. Nevertheless, no evidence supports Mutschler’s contention that he suffered 

because the defendants knew of and consciously disregarded a significant risk to his 

health and safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). As Mutschler

himself concedes, the first incident, from which he sustained the majority of his injuries, 

was accidental.

 Mutschler now 

appeals a District Court order granting summary judgment in favor of the defendants. 

We have jurisdiction under 28 U.S.C. § 1291 to exercise plenary review of the order, 

using the same standard employed by the District Court. Petruzzi’s IGA Supermarkets v. 

Darling-Del. Co., 998 F.2d 1224, 1230 (3d Cir. 1993).

2

 1 For the sake of brevity, and because we write primarily for the parties, we incorporate by 

reference the factual discussion contained in our earlier opinion.

 Mere negligence and medical malpractice do not rise to the level of an 

Eighth Amendment violation. White v. Napoleon, 897 F.2d 103, 108–09 (3d Cir. 1990). 

Mutschler nevertheless contends that the two subsequent episodes suffice to show that 

Malena acted with the required state of mind, but 1) Malena was not involved in the third 

incident, and 2) Mutschler presented nothing that would tend to show that Malena was 

actually aware of the initial allergic reaction. Mutschler did submit a grievance, but did 

not mention Malena in any of his submissions to prison authorities, and Malena claims 

2 We acknowledge the dispute over Nurse Malena’s involvement in the first incident, but we 

assume for the purposes of analysis, as the District Court did, that Malena was involved.
3

that she was never informed (until the commencement of suit) that Mutschler was either 

given a latex catheter or was possibly injured by it. We conclude that the lack of scienter 

is not in dispute; hence, Mutschler cannot prevail against Malena, because “the record 

taken as a whole could not lead a rational trier of fact to find for” him.3

 Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The claim against Overton 

fails because Mutschler has not adduced facts that would show her personal involvement 

in any constitutional violation. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 

1988).

4

Mutschler explains that he suffers from a wide range of disabilities and is forced to 

rely on the defendants for his care. In light of this dependence, allegations of negligence, 

especially in relation to something as serious as an often-severe medical allergy, are 

cause for concern. But, for the reasons discussed above, we agree with the District Court 

that Mutschler failed to show “deliberate indifference.” See Gobert v. Caldwell, 463 

F.3d 339, 346 (5th Cir. 2006) (explaining that “[u]nsuccessful medical treatment, acts of 

negligence, or medical malpractice do not constitute deliberate indifference”). Finding 

 

 3 Mutschler did submit numerous affidavits, from himself and other prisoners, attesting that 

Malena has a brusque and imperious demeanor. Even if her character is genuinely disputed, see

Fed. R. Civ. P. 56(a), it is not a “material” fact because it could not change the outcome of the 

litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). While a defendant’s 

attitude can be relevant to suggesting his or her state of mind, accusations relating to a bad 

bedside manner are not themselves sufficient to support deliberate indifference in this case. 

4 The caption lists “SCI ALBION CHCA HEALTH CARE” as a defendant and does not include 

Overton, but the suit below proceeded against the two individuals and not the entity; we take the 

same approach here.
4

no substantial question presented by this appeal, we will summarily affirm the District 

Court’s judgment. See Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per 

curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.5

 5 Because we will affirm on the merits, we need not reach the question of default under the 

Prison Litigation Reform Act. See Tunstall v. Office of Judicial Support of Ct. Com. Pl., 820 

F.2d 631, 633 (3d Cir. 1987) (“We may affirm the district court on any basis that finds support in 

the record.”). 

Mutschler’s motion for appointment 

of counsel is denied.