2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-2012

Wendell Brown v. Poorman

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1217

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Recommended Citation

"Wendell Brown v. Poorman" (2012). 2012 Decisions. Paper 763.

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BLD-205 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1217

___________

WENDELL K. BROWN,

Appellant

v.

KEVIN DEPARLOS; STEVE BLANK; WILLIAM KEENAN; DR. ANDERSON; 

PSYCHIATRIST CALBERT; POORMAN, NURSE'S SUPERVISOR; NURSE 

KATHY; NURSE JUDY; NURSE DARLENE; NURSE TAMMY; SGT. MILLER; J. 

MILLER GUARD; R. BARNES; R. KUHNS; P. KEELER; T. STUTZMAN, GUARD; 

BOWERS, GUARD; KIRKENDALL, GUARD; R. MILLER, GUARD; ROMANO, 

GUARD; C. EBNER, RELEASE OFFICER; LT. HARLEY, GUARD

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-09-00933)

District Judge: Honorable James M. Munley

____________________________________

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

June 21, 2012

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Opinion filed: July 2, 2012)

_________

OPINION

_________
2

PER CURIAM

Wendell Brown appeals pro se from the order of the United States District Court 

for the Middle District of Pennsylvania granting summary judgment in favor of certain 

defendants. For the reasons that follow, we will dismiss the appeal pursuant to 28 U.S.C. 

1915(e)(2)(B). 

Brown filed an application to proceed in forma pauperis and a complaint against 

numerous medical and prison personnel employed at the Lycoming County Prison in 

Williamsport, Pennsylvania. Brown was incarcerated at the prison from March 16, 2008, 

to November 16, 2008, and then recommitted there from January 17, 2009, through 

March 18, 2010. While incarcerated, Brown suffered from neck, back, arm and shoulder 

pain, as well as arm numbness and muscle spasms. Following a Magnetic Resonance 

Imaging (MRI) scan that showed disc herniation, nerve root compression and disc 

bulging, Brown underwent surgery in June 2008.1

The details of Brown’s claims are well known to the parties, set forth in the 

District Court’s various orders, and need not be discussed at length here. Briefly, Brown 

claims that the defendants denied him prescribed medication and access to doctors. 

Brown also contends that a doctor “violently” twisted his head while he was having a 

serious neck spasm, which led to a worsening of his condition. The complaint pleads 

 

 1 A post-operative x-ray of his spine showed good alignment and good fusion, and 

the neurosurgeon’s notes record his impression that Brown was doing well. 
3

constitutional claims pursuant to 42 U.S.C. § 1983, a claim under the Americans with 

Disabilities Act (“ADA”), and state law medical malpractice claims. 

All defendants filed motions to dismiss. Pursuant to those motions, the District 

Court dismissed all claims other than civil rights claims brought under 42 U.S.C. § 1983 

against five nursing defendants and a doctor defendant. The court declined to exercise 

supplemental jurisdiction over the pendent state law medical malpractice claims and 

dismissed those claims without prejudice. The court also denied Brown’s request for 

appointment of counsel. The District Court later granted summary judgment for the 

remaining doctor defendant, Elizabeth Anderson, M.D., finding that the evidence did not 

support that she was “deliberately indifferent” to Brown’s condition. In January 2012, 

the court granted the nursing defendants’ motion for summary judgment for failure to 

exhaust administrative remedies. This timely appeal followed. We have jurisdiction 

under 28 U.S.C. § 1291. 

I.

Our review over the District Court’s dismissal of claims under Fed. R. Civ. P. 

12(b)(6) is plenary. See Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384, 386 (3d 

Cir. 2005). “When reviewing a Rule 12(b)(6) dismissal, we accept as true all well-pled 

factual allegations in the complaint . . . and view them in the light most favorable to the 

plaintiffs.” Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins., 677 F.3d 

178, 182 (3d Cir. 2012) (citing Anspach ex rel. Anspach v. City of Phila., Dep't of Pub. 

Health, 503 F.3d 256, 260 (3d Cir. 2007)). “[O]nly a complaint that states a plausible 
4

claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal

Brown alleges that his Eighth Amendment right to be free from cruel and unusual 

punishment and his Fourteenth Amendment rights were violated during his incarceration 

at the Lycoming County Prison, some of which may have been as a pretrial detainee. The 

District Court correctly analyzed Brown’s claims under the Supreme Court’s standard for 

"deliberate indifference." 

, 556 U.S. 662, 679

(2009).

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). "Only 

‘unnecessary and wanton infliction of pain’ or ‘deliberate indifference to the serious 

medical needs’ of prisoners are sufficiently egregious to rise to the level of a 

constitutional violation." White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990) 

(quoting Estelle, 429 U.S. at 103). The same standard applies to claims of inadequate 

medical care by pre-trial detainees. Natale v. Camden Cnty. Correctional Facility

The record shows that Brown routinely sought and received treatment from the 

medical department, including the dispensation of prescription medication and other pain 

medication. On several occasions, medical providers responded to his requests for the 

provision of a cervical collar and arm sling to aid his pain. A doctor ordered an MRI in 

an attempt to ascertain the source of his pain, and Brown ultimately received corrective 

surgery. In particular, Dr. William Keenan informed Brown of the MRI results,

discussed the risks of surgery, prescribed pain medication for Brown, and arranged an 

appointment with a neurosurgeon, as Brown concedes in his complaint. In light of this 

, 318 

F.3d 575, 581 (3d Cir. 2003).
5

concession, and because his allegations do not otherwise state a claim for constitutional 

violations against Dr. Keenan, the District Court properly dismissed the claims against 

this defendant. 

We also agree with the District Court that Brown failed to plead sufficient facts to 

demonstrate personal involvement by defendant Calvert for the alleged inadequate 

medical care. Brown seeks to impose liability based solely on this defendant’s

supervisory position, but liability in a § 1983 action must be predicated upon personal 

involvement, not on the basis of respondeat superior. Polk County v. Dodson

With regard to the non-medical defendants, including the warden, “[i]f a prisoner 

is under the care of medical experts . . . a non-medical prison official will generally be 

justified in believing that the prisoner is in capable hands.” 

, 454 U.S. 

312, 325 (1981). 

Spruill v. Gillis, 372 F.3d 

218, 236 (3d Cir. 2004). Thus, “absent a reason to believe (or actual knowledge) that 

prison doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official . . . will not be chargeable with the Eighth Amendment scienter 

requirement of deliberate indifference.” Id. We conclude that the District Court properly 

applied Spruill

We also conclude that the District Court correctly dismissed Brown’s claim 

against defendants Blank, R. Miller, Ebner, Harley, and Kuhns regarding their alleged 

verbal assault and harassment. Verbal harassment of a prisoner, without more, does not 

when it dismissed those claims.
6

violate the Eighth Amendment. See, e.g., McBride v. Deer, 240 F.3d 1287, 1291 n.3 

(10th Cir. 2001); DeWalt v. Carter

Nor do the allegations of a conspiracy, or conspiracies, among certain defendants 

to violate Brown’s civil rights survive Rule 12(b)(6). Brown based his conspiracy claim 

upon the conclusory allegation that prison employees, including guards and a nurse, 

agreed to act against him to deprive him of medical care. Without more, the bare 

allegation of an agreement is insufficient to sustain a conspiracy claim. 

, 224 F.3d 607, 612 (7th Cir. 2000). 

Cf. Abbott v. 

Latshaw, 164 F.3d 141, 148 (3d Cir. 1998) (finding § 1983 claim in complaint contained 

sufficient allegations of concerted action to withstand motion to dismiss); see also Bell

Atlantic Corp. v. Twombly

Brown’s claim that defendants violated the ADA was also properly dismissed. To 

establish a violation of Title II of the ADA, an inmate must allege that: (1) he is a 

qualified individual with a disability; (2) he was either excluded from participation in or 

denied the benefits of some public entity's services, programs, or activities; and (3) such 

exclusion, denial of benefits, or discrimination was by reason of his disability. 

, 550 U.S. 544, 555 (2007) (“Factual allegations must be 

enough to raise a right to relief above the speculative level . . . .”). 

See 42 

U.S.C. § 12132. Brown’s complaint merely asserts that defendants violated the ADA and 

fails to allege any facts that demonstrate that the alleged inadequate or improper medical 

care he received was because of a disability. 2

 2 The District Court dismissed Brown’s ADA claim because it determined that 

individuals are not liable under Title II of the ADA. This Court has yet to address 
7

II.

The remaining claims survived dismissal; however, the District Court 

subsequently granted summary judgment against the appellant on those claims. “Our 

review of a district court’s grant of summary judgment is plenary, and we must apply the 

same standard the district court was required to apply under Federal Rule of Civil 

Procedure 56[].” Spence v. ESAB Group, Inc., 623 F.3d 212, 216 (3d Cir. 2010). “In 

evaluating the evidence, we must view the facts in the light most favorable to the 

nonmoving party and draw all inferences in that party’s favor.” Id

Brown alleges that Dr. Anderson violated his constitutional rights when she 

examined him and twisted his head during a muscle spasm. Dr. Anderson conducted a 

physical examination of Brown during which she palpated his neck and muscles. She 

also prescribed him medication to control the muscle spasms. Allegations of medical 

malpractice are not sufficient to establish a constitutional violation. 

. (internal quotation 

marks and citations omitted).

White, 897 F.2d at

108 (citing Estelle, 429 U.S. at 106). Furthermore, "mere disagreement as to the proper 

medical treatment" does not support a claim of violation of the Eighth Amendment. 

Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) 

(citing Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Massey v. Hutto

 

individual liability under Title II of the ADA, and we decline to do so now, as we have 

concluded that Brown’s ADA claim fails for other reasons.

, 545 F.2d 

45, 46 (8th Cir. 1976) (per curiam)). While Brown may disagree with the treatment 
8

provided by Dr. Anderson, her examination does not demonstrate deliberate indifference 

or unnecessary and wanton infliction of pain and does not amount to a constitutional 

violation.

The District Court also granted summary judgment to the nursing defendants on 

the ground of failure to exhaust. Under 42 U.S.C. § 1997e(a), prisoners must exhaust 

available administrative remedies before bringing a civil rights action concerning prison 

conditions. Such exhaustion is required regardless of whether these remedies can provide 

the inmate with the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001). We 

have interpreted this provision to require not only that an inmate has no further process 

available to him, but also that an inmate has engaged in "proper exhaustion," that is, the 

inmate has reached this endpoint only after having timely sought relief at every level 

available to him. Spruill

Failure to exhaust is an affirmative defense to be pleaded by the defendants. 

, 372 F.3d at 227-30.

Ray 

v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Affirmative defenses ordinarily are raised in 

responding to a pleading, Fed. R. Civ. P. 8(c), although courts have held that lack of 

exhaustion can be asserted in a motion for summary judgment if the plaintiff is not 

harmed by the delay. See, e.g., Curtis v. Timberlake,

 

436 F.3d 709, 711 (7th Cir. 2006)

(finding no prejudice where appellant confronted the defense in responding to motion for 

summary judgment). The nursing defendants here only mentioned the lack of a grievance 

in their answer, but did not press it until their motion for summary judgment. The 
9

District Court found that Brown was not prejudiced by their raising the issue at this stage

in the proceedings, and we agree. Brown was aware of the exhaustion issue even when 

he filed his complaint, and he had the opportunity to confront the defense in responding 

to the motion for summary judgment.3

Brown contends that he filed a grievance in accordance with the policies of the 

Lycoming County Prisons inmate handbook and exhausted the remedies as provided 

therein. The record shows that Brown filed medical request slips related to his medical 

treatment in spring 2008, but submitted only one complaint to the Lycoming County 

Prison Board in December 2009 related to the discontinuation of some of his medication. 

Brown has not provided any evidence that he complied with the prison’s grievance 

procedure. Under the circumstances, we agree that Brown failed to exhaust his available 

administrative remedies, and, on this record, the District Court properly granted the 

summary judgment motion as to the remaining nursing defendants. 

Finally, we consider whether the District Court properly denied Brown’s motion 

for appointment of counsel. An indigent plaintiff seeking the appointment of counsel 

must present a claim having “some merit in fact and law.” Parham v. Johnson

 3 The complaint form includes a section on the exhaustion of administrative 

remedies in which Brown indicated that he had fully exhausted his available 

administrative remedies regarding each of his present claims. 

, 126 F.3d 

454, 457 (3d Cir. 1997). Brown’s claims lack merit for the reasons already discussed. 

Additionally, through his pro se submissions, Brown has demonstrated an ability to 
10

present his case. See Tabron v. Grace

Having found no legal merit to this appeal, we will dismiss it pursuant to 28 

U.S.C. § 1915(e)(2)(B). Appellant’s motion for appointment of counsel is denied.

, 6 F.3d 147, 156 (3d Cir. 1993). Accordingly, the 

District Court did not abuse its discretion in denying Brown’s motion.