2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-14-2011

Charles Albert v. John Yost

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1454

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Recommended Citation

"Charles Albert v. John Yost" (2011). 2011 Decisions. Paper 1098.

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BLD-199 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1453 / 11-1454

___________

CHARLES E. ALBERT,

Appellant

v.

JOHN YOST, WARDEN; JEFFREY TRIBATH, MEDICAL DIRECTOR; 

ROBIN GOLDEN, P.A.; D. SCOTT DODRILL, B.O.P. REGIONAL DIRECTOR; 

HARRELL WATTS, B.O.P. CENTRAL DIRECTOR; UNIDENTIFIED URC 

MEMBERS; DAVID MAFFAT, FORMER WARDEN, FCI LORETTO; 

DR. JAMES LEONARD, FORMER PHYSICIAN, FCI LORETTO; 

US MEDICAL RECORDS; HARLEY G. LAPPIN, DIRECTOR, U.S. BUREAU 

OF PRISONS; THE UNITED STATES BUREAU OF PRISONS; 

URC COMMITTEE, U.S. BUREAU OF PRISONS

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 09-cv-00116)

District Judge: Honorable Kim R. Gibson

____________________________________

C.A. No. 11-1453

Submitted by the Clerk for Possible Dismissal Due to a 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

____________________________________
2

C.A. No. 11-1454

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

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: June 14, 2011)

_________

OPINION

_________

PER CURIAM

Charles Albert, proceeding pro se, appeals from the District Court’s entry of

judgment against him. For the reasons that follow, we will summarily affirm the 

judgment of the District Court.

Albert entered the Federal Correctional Institution in Loretto, Pennsylvania (“FCI 

Loretto”) in May 2006. He arrived at the facility with a number of serious medical 

ailments: (1) a history of epilepsy; (2) non-insulin dependent diabetes mellitus; (3) disc 

herniation surgery on April 26, 2006; (4) history of head trauma with loss of 

consciousness causing seizures; and (5) cardiac catheterization in April 2006. He is also 

allergic to a number of antibiotics. 

In May 2009, Albert initiated the underlying action in the United States District 

Court for the Western District of Pennsylvania pursuant to Bivens v. Six Unknown 

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), and the Federal Tort 

Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. He claimed that upon arrival at FCI 
3

Loretto, Physician Assistant (“P.A.”) Robin Golden and Health Services Administrator 

Jeffrey Trimbath placed him on a different pain medication than he had previously been 

prescribed by his private physicians and neurosurgeons without consulting them, and that 

his walker was taken away and he was not provided with a replacement. He also alleged

that P.A. Golden prescribed him an anti-inflammatory drug, Naproxen with Sodium, 

which was “an irresponsible, inappropriate choice” in light of his medical history, and 

which caused him to suffer lightheadedness, bleeding, shortness of breath, numbness and 

pain in the left arm, and severe chest pain. He complained that he was placed on 

acetaminophen and capsaicin cream, which were ineffective in treating his pain. He 

asserted that Trimbath told him that he was complaining too much and that all of his 

future medical requests would be summarily rejected. Based on these incidents, he 

maintained that these defendants, along with various prison administrators, Bureau of 

Prisons officials, and other employees, violated his rights under the Fifth, Eighth, and 

Fourteenth Amendments. He sought an injunction compelling that he be seen by an 

outside specialist and prescribed the medication he was taking prior to entering FCI 

Loretto, that he be reassigned to a new P.A., and that he continue to be housed at FCI 

Loretto so that he could remain close to his family. He also sought significant 

compensatory and punitive damages.

Appellees moved to dismiss and, in the alternative, for summary judgment. They 

argued, among other things, that only one of Albert’s claims -- that he was not prescribed 

the pain medication of his choosing or referred to an outside specialist -- was exhausted, 
4

and that this exhausted claim did not rise to the level of deliberate indifference to a 

serious medical need. The District Court provided the parties with notice that it intended 

to treat Appellees’ motion as one for summary judgment and instructed Albert of the 

requirements for opposing such a motion under Federal Rule of Civil Procedure 56(c) 

and the accompanying Local Rule.

Albert opposed the motion, arguing that he had exhausted all claims “reasonably 

capable of administrative exhaustion.” He maintained that he had filed a “sensitive” 

BP-10 to the Regional Office regarding Trimbath’s alleged intimidation and harassment, 

but never received a response. He further argued that his complaint sufficiently 

demonstrated that the medical defendants had been deliberately indifferent to his serious 

medical needs by taking his walker without providing him with a replacement, failing to 

change his medication despite his complaints that the medication he was on was not 

relieving his pain, and refusing to honor his request to see an outside specialist. Albert 

cross-moved for summary judgment.

Magistrate Judge Amy Reynolds Hay was originally assigned to this case. After 

her passing, it was reassigned to Magistrate Judge Keith A. Pesto, who ordered the 

parties to file supplemental briefs on the issue of whether there was sufficient expert 

witness testimony in the record on the issue of deliberate indifference. Both parties 

agreed there was no such evidence. The Magistrate Judge held that Albert was required 

to adduce medical expert evidence to prove that he had suffered harm as a result of any of 

the medical defendants’ conduct. The Court explained, “[a]ssuming the existence of the 
5

unabated crushing chest pain and shortness of breath plaintiff says in his pleadings he has 

suffered from, for the last two and a half years, without medical attention, the causation 

of that injury is not obvious at all. Plaintiff now says that the cause was the naproxen 

sodium P.A. Golden prescribed.” (Mag. J. Op., 9.) Due to the lack of expert testimony 

on this issue, the Magistrate Judge concluded that Albert had not proved the existence of 

any material facts, and recommended that judgment be entered in favor of Appellees. In 

making this recommendation, the Magistrate Judge did not reach Appellees’ exhaustion, 

statute of limitations, or other defenses. 

Albert objected to the Report & Recommendation and, in his objections, requested 

the appointment of counsel or an expert witness, or in the alternative, an extension of 

time in which to find an expert witness. The Magistrate Judge denied that motion as 

well, concluding that Albert’s only goal in seeking the appointment of counsel is “to 

attempt to find by indirect means some expert testimony to support [his] claim.” Over 

Albert’s objections, the District Court adopted the Magistrate Judge’s Report & 

Recommendation as the opinion of the Court. Albert filed separate notices of appeal 

from each decision. The appeal from the denial of his motion for the appointment of 

counsel and an expert witness was docketed at C.A. No. 11-1453. The appeal from the 

entry of summary judgment against him was docketed at C.A. No. 11-1454. Appellees 

have filed a motion for summary action in C.A. No. 11-1454 which Albert opposes.
6

We have jurisdiction over these appeals pursuant to 28 U.S.C. § 1291.1 We

exercise plenary review over the District Court’s entry of summary judgment, viewing 

the underlying facts and all reasonable inferences therefrom in the light most favorable to 

the non-moving party. See Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). 

We may affirm a district court’s grant of summary judgment based on any ground that 

appears in the record. See Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 2000).

While we disagree with part of the District Court’s analysis, we will nonetheless 

summarily affirm its judgment on alternative grounds. The District Court focused on a 

claim Albert did not exhaust. The PLRA requires exhaustion. See 42 U.S.C. § 1997e; 

Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir. 2000) (requiring exhaustion of all available 

administrative remedies). Furthermore, the Court seems to have imported state law 

regarding proof of negligence or medical malpractice into a federal civil rights action. 

See Geibel v. United States, 667 F. Supp. 215, 219 (W.D. Pa. 1987) (discussing lack of 

expert evidence submitted to prove claim under FTCA, applying Pennsylvania standard 

for medical malpractice); Festa v. Greenberg, 511 A.2d 1371, 1376 (Pa. Super. Ct. 1986) 

 

1 As noted, C.A. No. 11-1453 is an appeal to this Court from an order of the Magistrate 

Judge denying Albert’s motion for the appointment of counsel or an expert witness. An 

order of a Magistrate Judge which has not been appealed to the District Court generally is 

not immediately appealable to this Court. See Siers v. Morrash, 700 F.2d 113, 116 (3d 

Cir. 1983). In this case, however, we conclude that jurisdiction is proper, as Appellant 

presented his request for the appointment of counsel or an expert witness to the District 

Court in the first instance by including it in his objections to the Magistrate Judge’s 

Report & Recommendation. As it was so presented, we deem the motion implicitly 

denied by the District Court and will consider it to be properly before us at this time. 
7

(requiring expert testimony in informed consent medical malpractice action to establish 

existence of medically technical risks of which average juror has no knowledge); 

Brannan v. Lankenau Hosp., 417 A.2d 196, 201 (Pa. 1980) (holding that expert testimony 

must be introduced in medical malpractice actions to establish negligence). As we have 

repeatedly held, “a complaint that a physician has been negligent in diagnosing or 

treating a medical condition does not state a valid claim of medical mistreatment under 

the Eighth Amendment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 764 

(3d Cir. 1979); see also White v. Napoleon, 897 F.2d 103, (3d Cir. 1990) (“If a plaintiff’s 

disagreement with a doctor’s professional judgment does not state a violation of the 

Eighth Amendment, then certainly no claim is stated when a doctor disagrees with the 

professional judgment of another doctor.”). The Magistrate Judge also relied on Boring 

v. Kozakiewicz, 833 F. 2d 468 (3d Cir. 1987), in which this Court held that expert 

testimony could be used in an Eighth or Fourteenth Amendment denial of medical care 

claim to prove that a medical need was serious, in a situation where the seriousness of an 

illness or injury would not be apparent to a lay person. See id. at 473. However, we have

also held that a medical need will be considered serious if it is “one that has been 

diagnosed by a physician as requiring treatment or one that is so obvious that a lay person 

would easily recognize the necessity for a doctor’s attention.” Monmouth Cnty. Corr. 

Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). As Appellees’ filings 

 

Accordingly, we hereby consolidate C.A. No. 11-1453 and C.A. No. 11-1454 for 

disposition.
8

establish, Albert underwent disc herniation surgery immediately before entering the 

prison, and had been “diagnosed with significant degenerative changes of the spine which 

cannot be reversed.” At no time did Appellees assert that Albert did not suffer from a 

serious medical condition. This question was not in dispute for the purposes of 

Appellees’ motion for summary judgment. Rather, the question before the District Court 

was whether Appellees were deliberately indifferent to Albert’s condition. Our review of 

the record indicates that they were not.

It is undisputed that Albert properly exhausted only one of his claims-- that 

Appellees Golden and Trimbath failed to change his prescription and failed to refer him 

for an outside consultation.

2

 With respect to this one claim, Albert does not demonstrate 

 

2

Specifically, Albert’s one fully exhausted claim alleged:

I had back surgery before coming to F.C.I. Loretto-Low. I was on 

Acetaminophen 325 mg. to help alleviate my back pain. Recently I’ve 

gone to sick call three times for a stronger prescription. At night the back 

pain is so intense that I am unable to sleep and I must sit up in bed. I’m 

unable to take ibuprofen because of stomach problems, that is why Golden 

took me off the piroxixan 20 mg. It is urgent that I receive something 

stronger and much more effective for my back pain. My situation cannot 

be allowed to wait day after day. Please give this your utmost attention. I 

have already seen Dr. Leonard MD on September 25, 2006. I am not 

satisfied. He is more interested in my nutrition and diabetes than he is 

concerning the pain and suffering in my back. He has put me on capsaicn 

[sic] 60 mg. 0.025% cream. This is used to treat pain caused by arthritis, 

shingles, or tingling in arms and legs caused by diabetes. I would like to be 

checked out by a surgeon that deals primarily with neurosurgery or 

orthopedics, that can suggest proper medical procedures and medicine.
9

that these Appellees acted with deliberate indifference to a serious risk to his health.3 See

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (holding that, to state a claim for an 

Eighth Amendment denial of medical care, a plaintiff must show “(1) that the defendants 

were deliberately indifferent to their medical needs and (2) that those needs were 

serious”). Albert identifies himself as a chronic care patient with a number of drug 

allergies. His voluminous medical records clearly reflect that Appellees attempted to 

treat him within these parameters. While Albert complains that he was not permitted to 

see an outside specialist, there is no indication that any such appointment would have 

aided in his pain management. Albert clearly suffers from a number of physical ailments 

and we understand that he is in great discomfort and is unhappy with the medical care he 

has received. Based on the record before us, however, there is no basis on which to infer 

that any of these Appellees consciously disregarded a serious risk to Albert’s health or 

prevented him from receiving necessary medical treatment. To the extent Appellant also 

alleged that Appellees’ conduct violated his rights to substantive due process, we agree

that Albert does not allege any conduct which “shocks the conscience.” Miller v. City of 

Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999).

Finally, aside from attacking their responses to his grievances, Albert does not 

 

3 Albert asserts that he filed a confidential grievance regarding Trimbath’s conduct and 

never received a response, and that this claim should therefore be deemed exhausted as 

well. However, he presents no evidence to overcome Appellees’ contention that his 

confidential grievance was refused and he was told to follow the normal grievance 

procedure. Accordingly, we will address only the one claim that has been properly 

exhausted.
10

allege any personal involvement on the parts of any of the other Appellees in the 

provision of his medical care. See Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949

(2009) (explaining that in a § 1983 or Bivens action, “each Government official, his or 

her title notwithstanding, is only liable for his or her own misconduct”). Absent 

circumstances not present here, a prison administrator who delegates medical care 

decisions to medical professionals does not have the requisite subjective intent to harm 

the plaintiff or consciousness of a risk of serious harm. See Spruill v. Gillis, 372 F.3d 

218, 236 (3d Cir. 2004). Accordingly, we agree that entry of summary judgment in favor 

of these Appellees was proper as well. We also agree that Albert failed to state a claim 

against the URC Committee or the Bureau of Prisons as entities. A Bivens claim can be 

maintained only against individual federal officers, not against a federal entity. See

Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994).

Based on the foregoing, and having consolidated the two appeals before us, we 

will affirm the judgment of the District Court entering summary judgment in favor of 

Appellees and denying Albert’s motion for summary judgment. We conclude that the 

District Court did not abuse its discretion in denying Albert’s motion for the appointment 

of counsel or for an expert witness. Appellees’ motion for summary action, filed in C.A. 

No. 11-1454 is granted. Appellant’s motion to dismiss Appellees’ motion is denied.