NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-2575

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WILLIE L. DAVIS,

Appellant

v.

S. BROWN; WARDEN B.A. BLEDSOE

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 3-12-cv-01294)

District Judge: Honorable Robert D. Mariani

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Submitted Pursuant to Third Circuit LAR 34.1(a)

February 24, 2014

Before: SMITH, GARTH and ROTH, Circuit Judges

(Opinion filed: February 25, 2014)

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OPINION

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PER CURIAM

Appellant Willie Davis appeals from an order of the District Court granting 

summary judgment to the defendants. For the reasons that follow, we will affirm.
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Davis, who is housed in the Special Management Unit (“SMU”) at the United 

States Penitentiary in Lewisburg, Pennsylvania, suffers from asthma. On January 12, 

2012, pepper spray (Oleoresin Capsicum) was used to subdue another inmate in the 

SMU. Davis was affected and he suffered a severe asthma attack. He was taken to the 

prison Health Services and treated successfully. Following this episode, Davis submitted 

an informal request to staff asking that a sign be placed on his cell door instructing staff 

to remove him from the area before pepper spray is used in the SMU. According to 

Davis, Health Services Administrator S. Brown ignored his request. 

Dissatisfied with Brown’s lack of a response, in February, 2012, Davis submitted 

a grievance to Warden Bledsoe. Warden Bledsoe denied his request that a sign be placed 

on his cell door which instructed staff to remove him from the area prior to using pepper 

spray in the SMU, noting that Davis had been treated by the health services staff 

following the January, 2012 incident, and advising Davis to take any future medical 

concerns to the medical personnel who were treating him. Several months later, on June 

8, 2012, Davis suffered another asthma attack when pepper spray was used in the SMU. 

He was taken to Health Services and treated.

Davis filed a Bivens1action in the United States District Court for the Middle 

District of Pennsylvania against Administrator Brown and Warden Bledsoe, alleging that 

they violated his rights under the Eighth Amendment because they refused his request 

that in the future he be removed from his cell prior to the use of pepper spray in the SMU. 

 

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 

(1971).
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Brown and Warden Bledsoe moved to dismiss Davis’ amended complaint, or, in the 

alternative, for summary judgment. The defendants noted that Warden Bledsoe had 

retired prior to the second incident, and that neither Warden Bledsoe nor Administrator 

Brown directly provided health care to inmates, and, accordingly, neither could be held 

personally liable to Davis for money damages in a civil rights actions. In the alternative, 

Davis failed to show that the defendants acted with deliberate indifference to a serious 

medical need. The defendants further argued in the alternative that they were qualifiedly 

immunized from a suit for damages. The defendants successfully moved to stay 

discovery pending the outcome of their motion. 

Davis submitted opposition to the defendants’ motion pursuant to Fed. R. Civ. Pro. 

56, in which he claimed that he needed to conduct discovery in order to effectively 

oppose the defendants’ motion. The discovery sought included information about the use 

of pepper spray in the SMU and information about inmates who had suffered injury as a 

result of the use of pepper spray. Davis argued that the defendants had the required 

culpable state of mind because inmates in the SMU were getting pepper-sprayed every 

other day, and he argued that Warden Bledsoe and Administrator Brown were indeed the 

proper defendants in this civil action.

The Magistrate Judge recommended that summary judgment be awarded to the 

defendants. Noting first that Davis was not challenging the adequacy of the medical care 

he received for his two asthma attacks, the Magistrate Judge concluded that Davis failed 

to show that the defendants knew of and disregarded an excessive risk to his safety. 

Citing Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993), the Magistrate Judge 
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reasoned that deliberate indifference is not shown where supervisory correctional staff do 

not respond to the medical complaints of a prisoner who is already being treated by 

prison medical staff. In short, because defendants were entitled to defer to the judgment 

of prison medical staff on questions of medical necessity, Davis did not state a 

constitutional tort. In the alternative, the Magistrate Judge concluded that the defendants 

were qualifiedly immunized from a suit for money damages. Davis submitted objections 

to the Report and Recommendation, complaining that he had been denied the right to 

conduct discovery. 

In an order entered on May 20, 2013, the District Court overruled the objections, 

adopted the Report and Recommendation, and granted summary judgment to the 

defendants. The court further concluded that discovery was unnecessary.

Davis appeals. We have jurisdiction under 28 U.S.C. § 1291. We review a 

District Court’s grant of summary judgment de novo. Alcoa, Inc. v. United States, 509 

F.3d 173, 175 (3d Cir. 2007). Davis contends in his Informal Brief that summary 

judgment for the defendants was not proper because they had actual knowledge of his 

asthma and actual knowledge that pepper spray was used in the SMU under 

circumstances that might cause him to suffer an asthma attack. He also contends that he 

was denied the discovery he needed in order to defeat the defendants’ motion for 

summary judgment, and that summary judgment was not proper because he did not 

receive adequate notice that summary judgment would be considered.

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2 Davis also requests that we indict and investigate the District Court and Magistrate 

Judge for “committing treason against their allegiance and oath,” Appellant’s Informal 
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Summary judgment is proper where the moving party shows “that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the 

absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. 

Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). If the moving party has carried its 

burden, the nonmovant must then come forward with evidence showing that there is a 

triable issue. See id. at 587. A triable, or genuine, issue of material fact is one that could 

change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 

(1986). 

We will affirm. As a threshold matter, Davis plainly was on notice that the 

District Court would consider summary judgment because the defendants moved in the 

alternative for summary judgment. In addition, he invoked Rule 56 to the extent that it 

provides that, when facts are unavailable to the nonmovant, and “[i]f a nonmovant shows 

by affidavit or declaration that, for specified reasons, it cannot present facts essential to 

justify its opposition, the court may: . . . (2) allow time to obtain affidavits or declarations 

or to take discovery; in opposing summary judgment.” Fed. R. Civ. Pro. 56(d)(2). 

Accordingly, the notice required in Rose v. Bartle, 871 F.2d 331, 341-42 (3d Cir. 1989) 

(1989) (court must give notice that it intends to convert a motion to dismiss into a motion 

for summary judgment and permit nonmoving party to submit materials opposing 

 

Brief, at 4, citing among other federal statutes 28 U.S.C. § 455. Davis’ allegations are 

baseless; we see nothing in the record that would give us a reason to question the District 

Court’s or Magistrate Judge’s impartiality, 28 U.S.C. § 455(a).
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summary judgment prior to doing so), was not required here. We also agree with the 

District Court that discovery would not have changed the summary judgment result here. 

With respect to Davis’ primary contention, correctional officials who are 

deliberately indifferent to the serious medical needs of an inmate violate the Eighth 

Amendment’s prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 

U.S. 97, 103 (1976). But to establish deliberate indifference, a prison official must both 

know of and disregard an excessive risk to the inmate’s health or safety. Farmer v. 

Brennan, 511 U.S. 825, 837 (1994). To state a constitutional claim, the official must both 

be aware of facts from which the inference could be drawn that a substantial risk of 

serious harm exists, and he must also draw the inference. See id. 

The facts are undisputed here. Davis’ Eighth Amendment claim of deliberate 

indifference rested on an allegation that Warden Bledsoe and Administrator Brown failed 

to protect him from the June, 2012 asthma attack by failing to take any protective action 

after being notified of the January, 2012 asthma attack. Summary judgment for the 

defendants was proper here because the summary judgment record establishes that the 

defendants did not act with a sufficiently culpable state of mind, that is, with deliberate 

indifference to Davis’ serious medical needs. We said in Durmer that correctional 

defendant-administrators who were not themselves physicians cannot “be considered 

deliberately indifferent simply because they failed to respond directly to the medical 

complaints of a prisoner who was already being treated by the prison doctor.” 991 F.2d 

at 69. See also Spruill v. Gillis, 372 F.2d 218, 236 (3d Cir. 2004) (“If a prisoner is under 

the care of medical experts . . ., a non-medical prison official will generally be justified in 
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believing that the prisoner is in capable hands.”). In Spruill, we held that “absent a 

reason to believe (or actual knowledge) that prison doctors or their assistants are 

mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be 

chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” 

Id.

Spruill applies here because Davis did not show that the defendants’ involvement 

in the matter consisted of anything more than reviewing his grievance and deferring to 

the judgment of medical personnel. Davis did not allege or establish that either 

Administrator Brown or Warden Bledsoe had actual knowledge that prison heath staff 

were mistreating his condition by failing to address his repeated exposure to pepper 

spray. In addition, Davis did not show through competent medical evidence that his 

asthma condition was so serious that he could never be near the use of pepper spray, or 

that he risked serious damage to his future health. We note that Davis filed a “petition of 

writ of mandamus” in the District Court, in which he sought injunctive relief, explaining 

that he had suffered a third asthma attack on July 30, 2012. Although the Magistrate 

Judge issued an order deeming this mandamus petition withdrawn under the local rules 

(because Davis failed to submit a supporting brief), Davis attached his medical records to 

it. They are plainly pertinent to the summary judgment issue and show that, after Davis’ 

second asthma attack was treated, he was sent to the recreation yard until the spray in the 

SMU dispersed. Medical staff did not recommend any modifications to his assignment in 

the SMU. Following treatment for this third attack, Davis was released back to his 

housing unit with no restrictions.
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Accordingly, summary judgment for Warden Bledsoe and Administrator Brown 

was proper here. We emphasize the limited nature of our holding. Davis chose to file the 

instant Bivens action against two officials who were not treating him for his asthma and 

who were not medically responsible for determining whether his asthma is so serious that 

he could never be near the use of pepper spray. He exhausted his administrative remedies 

only with respect to the first asthma attack and the defendants’ response to it, see 42 

U.S.C. § 1997e(a) (requiring exhaustion of administrative remedies prior to bringing 

suit), and those defendants cannot be considered deliberately indifferent to his serious 

medical needs in violation of the Eight Amendment for their limited actions. Moreover, 

the sum total of the allegations in his complaint do not support any actionable claims that 

have merit.

For the foregoing reasons, we will affirm the order of the District Court granting 

summary judgment to the defendants.