NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-1886

___________

SEAN CHRISTOPHER CLEMMONS,

Appellant

v.

UNITED STATES OF AMERICA;

HARRELL WATTS; J.L. NORWOOD; H.L. HUFFORD;

HUDSON; BROSIOUS; SIMONSON;

INTEGRATED MEDICAL SOLUTIONS; JERRY B. HEFTLER;

E. MACE-LEIBSON; STEFFAN; LINGENFELTER; 

LADD; FISHER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1:15-cv-02003)

District Judge: Honorable John E. Jones, III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 2, 2019

Before: MCKEE, COWEN and ROTH, Circuit Judges

(Opinion filed October 25, 2019)

___________

OPINION*

___________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Sean Christopher Clemmons, proceeding pro se, appeals from the District Court’s 

orders dismissing his complaint in part and granting summary judgment to the defendants 

on the remaining claims. For the following reasons, we will affirm in part, vacate in part, 

and remand for further proceedings.

In April 2014, Clemmons, an inmate formerly confined at the Federal Correctional 

Institution-Schuylkill (“FCI-Schuylkill”), filed a pro se action under Bivens v. Six 

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. In his amended complaint, 

Clemmons alleged that both medical and nonmedical defendants were “negligent, 

gross[ly] negligent, and reckless in rendering ‘medical treatment’” for his chronic 

hemorrhoid condition, and for refusing to treat the same condition. Dkt # 50, at 2.1 

Clemmons also filed several motions seeking appointment of counsel, a motion seeking a 

court appointed expert, and a motion to increase the sought-for damages, which were all 

subsequently denied by the District Court.

 

1 Specifically, Clemmons alleged that the defendants failed: (1) to select competent 

physicians; (2) to oversee all persons who practice medicine on behalf of Integrated 

Medical Solutions (“IMS”) and FCI-Schuylkill medical department; (3) to formulate, 

adopt and enforce necessary rules and policies; (4) to order appropriate diagnostic tests; 

(5) to promptly refer him to a hemorrhoid specialist; (6) to minimize the risk of 

advancing problems related to the failure to treat conditions; (7) to adequately monitor, 

review, and modify his treatment plan; (8) to utilize hands on care when necessary; (9) to 

treat his condition; (10) to take proactive action in treating his hemorrhoids; and (11) to 

provide adequate and competent medical care “in other ways.” Dkt # 50, 2–3.
3

The defendants filed motions to dismiss for failure to state a claim, and in the 

alternative, motions for summary judgment. On March 20, 2017, the District Court 

entered two orders disposing of all claims asserted by Clemmons. First, the District 

Court entered an order dismissing the claims against Integrated Medical Solutions 

(“IMS”) and Heftler. Dkt # 120. Second, the District Court entered an order dismissing 

the claims against Watts, Norwood, Hufford, Hudson, Brosious, Simonson, Ladd, and 

Fisher, and granting the defendants’ motion for summary judgment pertaining to the 

claims against Leibson, Steffan, Ligenfelter, and the United States. Dkt # 121.

Clemmons filed a timely notice of appeal. On appeal, Clemmons argues that the 

District Court erred in dismissing his claims, in granting the defendants’ motions for 

summary judgement, in denying his motions for appointment of counsel, in denying his 

request for a court-appointed expert, and in denying his motion to increase sought-for 

damages. Clemmons additionally filed a motion to supplement the record in this Court.

I.

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

orders granting motions to dismiss and motions for summary judgment. AT&T Corp. v. 

JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006). In reviewing an order granting a 

motion to dismiss, we accept all factual allegations in the complaint as true, and we draw 

all reasonable inferences in the light most favorable to the plaintiff. Id. Summary 

judgment is appropriately entered only when there is no genuine issue as to any material 
4

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. 

We review the denial of a request for counsel for abuse of discretion. See Tabron v. 

Grace, 6 F.3d 147, 155 n.4 (3d Cir. 1993).

II.

We agree that the District Court properly dismissed Clemmons’ Eighth 

Amendment challenges under Bivens. Clemmons’ allegations against Watts, Norwood, 

Hufford, and Brosious are based on the denial of Clemmons’ administrative remedy 

requests. His allegations against Simonson and Hudson are based on their failure to 

respond to Clemmons’ emails concerning his medical treatment. None of the allegations 

against these non-medical defendants, who had no involvement in the provision of 

medical care to Clemmons, stated an Eighth Amendment claim upon which relief could 

be granted. See Spruill v. Gillis, 372 F.3d 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 believing that the prisoner is in capable hands.”). Clemmons did not allege that these 

defendants, or IMS or Heftler, had any personal involvement in the alleged violation of 

his Eighth Amendment rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 

1988) (stating that a party may establish liability for the deprivation of a constitutional 

right only through a showing of personal involvement by each defendant and explaining 

that “liability cannot be predicated solely on the operation of respondeat superior”). 
5

Similarly, the District Court was correct to dismiss the claims against Ladd and 

Fisher, which relied solely on their management of Clemmons’ inmate account. 

Specifically, Clemmons alleged that Ladd and Fisher caused him physical injury by 

“withholding plaintiff money and hindering plaintiff from being able to purchase his 

needed medication.” Dkt # 50, at 9. However, Clemmons has not alleged that the 

defendants knew of and disregarded an excessive risk to his health. See Estelle v. 

Gamble, 429 U.S. 97, 104 (1976).

Also, the District Court properly granted summary judgment in favor of MaceLeibson, Steffan, and Lingenfelter on the Eighth Amendment claims because, although 

Clemmons clearly disagrees with these defendants’ decisions in his treatment, a mere 

disagreement in treatment is not an actionable constitutional violation. See Monmouth 

Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); see also

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

(quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)) (“Where 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.”). Clemmons’ medical record, 

submitted by both Clemmons and the defendants, indicates that Clemmons presented to 

the FCI-Schuylkill Health Services Department three times complaining of painful 
6

hemorrhoids and submitted multiple Request-to-Staff forms alleging similar complaints.2 

At each visit to the Health Services Department, the on-call physician’s assistant 

evaluated Clemmons, listened to his complaints, and provided treatment. Specifically, 

Clemmons was repeatedly instructed to purchase hemorrhoid cream from the commissary 

and apply it to the external hemorrhoids. See, e.g., Appellant’s Appendix, at 68–70, 73–

75, 89–90; dkt # 97-1, at 32–36, 647–49. On one occasion, when Clemmons complained 

that the commissary replaced the cream with pads, Lingenfelter gave him a commissary 

slip for hydrocortisone cream. Appellant’s Appendix, at 89. 3 The defendants also 

 

2 Clemmons submitted a declaration to the District Court which stated that, prior to being 

transferred to SCI-Schuylkill, he had informed medical personnel of “significant blood in 

bowel movements,” dkt # 106, at 2, a complaint that sounds like the one that the 

defendants described as requiring additional care than was provided, see dkt # 97-1, at 35 

(“Surgery [for hemorrhoids] becomes necessary when it’s medically indicated that a 

person is experiencing significant blood loss, and surgery must be performed to stop 

blood loss.”). However, in response to the defendants’ evidence that he did not tell them 

he was experiencing significant blood loss, Clemmons failed to present any evidence that 

he made such complaints to the medical personnel at SCI-Schuylkill.

3 To the extent that Clemmons also claims that these defendants denied him medical care 

because he did not have the funds to purchase medicine from the commissary, the District 

Court correctly determined that this argument was without merit. Clemmons alleged that 

he was unable to purchase the medication from the commissary in July 2014 because 

$20.00 that was sent to him was “froze[n].” Dkt # 50, at 9. However, the defendants 

submitted an affidavit from the Trust Fund Supervisor at FCI-Schuylkill that states that 

his deposit was “not encumbered or ‘frozen,’” dkt # 97, at 27, and Clemmons did not put 

forth evidence to put the matter into dispute. See Fed. R. Civ. P. 56(c).
7

responded to the written requests submitted by Clemmons, and similarly instructed him 

to purchase over-the-counter cream from the commissary.4

III.

To the extent that Clemmons sought to bring a state law negligence claims against 

IMS and Heftler outside the FTCA, we agree that the District Court was correct to 

dismiss these claims. Clemmons’ amended complaint failed to state such a claim, since it 

did not include factual allegations to allow a court to draw the reasonable inference that 

those defendants were liable for the harm alleged. See Santiago v. Warminster Twp., 629 

F.3d 121, 133 (3d Cir. 2010). Clemmons’ amended complaint merely stated conclusory 

assertions about IMS and Heftler, and we have repeatedly held that “conclusory or barebones allegations will no longer survive a motion to dismiss: threadbare recitals of the 

elements of a case of action, supported by mere conclusory statements, do not suffice.” 

See Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal 

quotations omitted) (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 

2009)).5

 

4

In his brief on appeal, Clemmons states that he was ultimately provided surgical 

treatment for his hemorrhoid condition, in August 2015, after he was transferred to a 

different correctional institution. See Brief for Appellant, at 9 (PDF page number). 

However, as noted by the District Court, evidence of Clemmons’ condition nearly a year 

after his transfer is not indicative of his condition while receiving treatment while 

confined at FCI-Schuylkill.

5

In addition, the District Court did not abuse its discretion by denying Clemmons’ three 

motions for the appointment of counsel. See Tabron, 6 F.3d at 155–56. To the extent 

that Clemmons argues that the District Court erred in denying his request for a court 
8

IV.

We disagree, however, with the District Court’s decision to grant summary 

judgment on Clemmons’ FTCA claims due to his failure to file a certificate of merit 

(“COM”). Under the FTCA, “[t]he United States shall be liable . . . in the same manner 

and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 

2674. The FTCA requires a court to apply the tort laws of the state in which the alleged 

tort arose. Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000). Here, 

the alleged tort occurred in Pennsylvania and Pennsylvania’s law applies. Pennsylvania 

law requires a plaintiff alleging medical malpractice to file a COM. Pa. R. Civ. P. 

1042.3(a). The certificate must attest either that an appropriate licensed professional 

supplied a written statement that there exists a reasonable probability that the care 

provided fell outside acceptable professional standards, or that expert testimony of an 

appropriate licensed professional is unnecessary. Pa. R. Civ. P. 1042.3(a)(1) & (3). This 

requirement is a substantive rule and applies even where, as here, the claim is brought in 

federal court. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264–65 (3d Cir. 

2011).

 

appointed expert witness, the District Court acted within its discretion in denying the 

request. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (finding no statutory 

authority for courts to pay expert witness fees of indigent civil litigants). Furthermore, 

the District Court was also within its discretion to deny Clemmons’ request to increase 

amount of damages in the prayer for relief, since Clemmons had already been permitted 

to file several amended complaints.
9

On appeal, Clemmons argues that he sufficiently complied with Rule 

1042.3(a)(3)’s requirements, by asserting that he was able to proceed without expert 

testimony. We agree. After Clemmons was notified by the United States Attorney’s 

Office of its intent to move for summary judgment based on his failure to file a COM 

pursuant to Rule 1042.3(a)(1), Clemmons filed several documents relating to the COM 

requirement. See dkt # 72–74, 77–78. None of these documents met the requirements of 

Rule 1042.3(a)(1), and most of them did not meet the requirements of Rule 1042.3(a)(3).6 

In one, however, he stated that expert testimony was not necessary, and he asked the 

District Court to “grant [his] motion . . . to proceed in this action to satisfy the scope of . . 

. certificate of merit. See dkt # 78, at 1, 5. Accordingly, Clemmons presented a COM 

under Rule 1042.3(a)(3). See Liggon-Redding, 659 F.3d at 265; see also Womer v. 

Hilliker, 908 A.2d 269, 271 (Pa. 2006).

Because Clemmons presented a COM, the District Court erred in granting the 

United States’ motion for summary judgment on the basis that Clemmons had not 

presented a COM under Rule 1042.3(a)(1).

7

 See Liggon-Redding, 659 F.3d at 265

 

6

Instead, Clemmons largely made repeated requests that the COM requirement be 

waived.

7 However, the District Court properly dismissed the FTCA claims against IMS and 

Heftler because Clemmons failed to state a FTCA claim against IMS, an independent 

contractor of the federal Bureau of Prisons, and Heftler, an employee of IMS. See 28 

U.S.C. § 2671 (“[T]he term ‘Federal agency’ . . . does not include any contractor with the 
10

(“There is no basis in Pennsylvania law that would permit a district court to reject a filing 

under Rule 1042.3(a)(3) in favor of one filed under Rule 1042.3(a)(1).”)

V.

For the foregoing reasons, we will vacate the judgment of the District Court with 

respect to Clemmons’ FTCA claims against the United States, affirm the judgment in all 

other respects, and remand for further proceedings consistent with this opinion.

8

 

United States.”); United States v. Orleans, 425 U.S. 807, 813–14 (1976); Norman v. 

United States, 111 F.3d 356, 357 (3d Cir.1997).

8 Clemmons’ motion to supplement the record is denied, since the documents that 

Clemmons seeks to present were not presented to the District Court. See United States v. 

Donsky, 825 F.2d 746, 749 (3d Cir. 1987) (“[T]his court cannot consider any material 

that is not a part of the record.”); see also Fed. R. App. P. 10(e) (permitting 

supplementation of record if material was omitted by error or accident).