NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0410n.06 No. 09-4108 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T J AMES D. L YONS, Plaintiff-Appellant,

v. RN/HSA SUZAN

NE B RANDL Y, et al.; BRADF ORD BL

ACK; CHARL ES RAY, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF OHI O

OPI NI ON Be fore : KEI TH, MARTI N, and COOK , Circuit J udg es.

BO YCE F. MARTI

N, J R., Circuit J udg e. J ames D. Lyons, a convicted fede ral prisoner who has been rele ased from custody , appea ls a judgme nt in favor of various defe ndants in his civil rig hts

case . L y ons suffer s from a se vere urolog ical condition. The alleg ations in his pro se amende d complaint and supplement al complaint involve the centr al thesis that medi cal omissions and mistreatment, including the failure to promptly provide

nece ssary corr ective urolog ical surg ery , cause d harm which prog resse d to the point that simple urethropla sty was no longe r an option, and Ly ons’s urolog ical condition, which he alleg es was initially easily treatable, deter iorated des p i t e medical resour ces which should have been rea dily available , including the provision of cathe ters and timely consultative examinations. L y ons complains that incompetent medical car e resulted in ere ctile dy sfunction and perma nently painful uri n at i o n d i fficulty

. L y ons’s theories of rec overy include state-law claims for neg lige nce andNo. 09-4108 - 2 - malprac tice, viol ations of his Eighth Ame ndment Fe dera l Consti tutional rights ra ised in a Bivens

ty pe cla im, and cla ims of neg lige nce by fede ral e mploy ees unde r the F eder al Tort Claims Act. 1 This case has been ref

err ed to a p an el of the Court pursuant to Rule 34(j)(1) , Rules of the Six th Circuit. Upon examination, this panel unanimously ag ree s that oral argument is not neede d. Fe d. R. App. P. 34(a). I n 2003, Ly ons filed an amende d complaint naming as defe ndants numerous doctors, nurses, phy sicians, assistants, and other employ ees of the Elkton, Ohio Fe dera l Correc tional Institut ion, the Fe dera l Medica l Center in L exington, Kentucky , the Fe dera l Transf er Center of Oklahoma, and the Fe dera l Me dical Center in B utner, North Carolina. He also alleg ed abuse by sever al employ ees of EMSA Correc tional Care, a g overn m en t contra ctor composed of licensed phy sicians, nurses, and administrative personne l who provide medical car e to inmates in the Fr anklin County Correc tional Center in Columbus, Ohi o . L y o n s alleg ed that since his incar cer ation in August 1998 in these insti t u t i o n s , t h e defe ndants failed to make available adequate medical supplies so that he could perf orm the self-c atheter ization that was require d due to a pre- exis ting urethra l stricture condition. L y ons claimed that the defe ndants’ actions resulted in a deter ioration of his condition and cause d perma nent injury , including se x ual dy sfunction, sterilization, and pain and suffe ring that continue until the prese nt day

. He alleg ed seven cause s of action, including delibera te indiffer ence under the Eig hth Amendment, violations of the Tort Claims Act, and state-law claims of neg lige nce and medical malprac tice. L y ons was also g rante d permission to join the United States as a party under the Tort Claims Act. The amende d complaint in the district court contained seven counts. Counts two, six and

seven w ere dismiss ed in 2009. The thi rd count conce rning Dr. Bra dford Blac k’s m alpra ctice w as dismiss ed on April 19, 200 5 and is now befor e us on appea l. The fourth count was dismiss ed on September 30, 2005. The fifth count claiming malprac tice ag ainst Dr. Charles Ray was transfe rre d

See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics , 403 U.S. 38 8 (1971). 1No. 09-4108 - 3 - to the United States District Court for the East er n Di strict of Kentucky and is not befor e us. The mag istrate judge conducte d a very thoroug h rev i ew o f co u n t one and issued a very well rea soned opinion which the district court a dopted and whic h is now befor e us alongwith counts two, three, four a nd seven. Nee dless to say , we beg in our revie w of the g rant of summary judgme nt as to all these counts de novo. ACLU v. Grayson C nty., K y. , 591 F.3d 837, 843 ( 6th Cir. 2010). Summ ary judgme nt is appropr iate wher e no g enuine issue of materia l fac t exis ts, and the moving party is entitled to judgme nt as a matter of law. Fe d. R. Civ. P. 56(a)

. In considering a motion for summary judgme nt, the district court draw s all rea sonable infere nces in favor of the non-moving party

. Matsushita Elec. Indus. Co. v. Z

enith Radio Corp. , 475 U.S. 574, 587-88 (1986). The overriding issue is “whe ther the evidenc e prese nts a sufficie nt disag ree ment to require submissi on to a j u ry or whether it is so one-sided that one party must preva il as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986)

. We first conclude that the district court did not err in gr anting summary

judgme nt in favor of Dr. Br adfor d Bla ck, who tre ated Ly ons while in custody in Ohio. L y ons alleg ed that Dr . Bla ck

was neg lige nt by , among other things, improperly evaluating, diagnosing, and treating his condition, failing to provide pertinent information prior to surg ery , failing to exercise re asonable car e during two surg erie s he perf

ormed, failing to treat post-operative complaints, failing to proper ly document L y ons’s complaints, and failing to rec og nize that the presc ribed course of treatment was “pre dictably

unsucce ssful.” Under Ohio law, a plaintiff alleg ing medical malprac tice or profe ssional neg lige nce

m u s t prove, by a preponde ranc e of the evidenc e, that the defe ndant medical providers failed to adher e to the appropriate standard of car e recog nized by the re levant medica l community and that such failure cause d the plaintiff injury

. Bruni v. Tatsumi , 346 N.E. 2d 673, 677 (Ohio 1976). L y ons produce d no such testimony with respe ct to Dr. Bla ck’s car e. Although Ohio’s medical malprac tice law contains a “common knowledg e exception,” see id. at 677, Ly ons’s claims ag ainst Dr. Bla ck

–No. 09-4108 - 4 - evaluating the standards of car e involved in diag nosis, trea tment, and surg ery – are outside the rea lm of common knowledg e and the exception is inapplicable. Thus, his medical malprac ti ce cl ai ms ag ainst Dr. B lack f

ail as a matter of law

. L y ons’s constitutional claims of deliberate indif f e r e n c e u n d e r th e E ig

hth Amendment ag ainst Dr. Bla ck also fail as a matter of law. An Eig hth A mendment violation c annot be established by a showing that a phy sician has been neg lige nt in diag nosing or treating a medical condition. Estelle

v. Gamble , 429 U.S. 97, 106 (1976). Be cause Ly ons did not establish a g enuine i s s u e of fac t to demonstrate that Dr. Bla ck was deliberately indiffer ent to h i s s er ious medical needs, summary judgme nt in favor of

Dr. Bla ck was proper . Fur ther, we find no abuse of discretion in the g rant of summary judgme nt to Dr. Bla ck without allowing Ly ons additional discovery beca use Ly ons failed to demonstrate that additional discovery would provide the expert testimony neede d to succe ed on his medical malprac tice claims. See Abercrom bie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc ., 280 F.3d 619, 627 ( 6th Cir. 2002). We also conclude that the district court did not err in gr anting summary

judgme nt in favor of the employ ees of th e fe d er al p ri son fac ility at FCI -Elkton, FTC-O K, and FMC-B utner or the administrative employ ees of the Fe dera l Bur eau of Prisons. These claims of deliberate indiffer ence in violation of the Eig hth Amendment and medical malprac tice claims raised under the Tort Claims Act have no fac tual basis. The re cord is re plete with r efe renc es to the medical trea tment that L

yons rec eived while in custody and acknowledg ment by Ly ons himself that he rece ived s uch treatment. Although L y ons suffe red from a serious medical condition during his incar cer ation as a result of his urethra l stricture, h e fa i l ed t o establish that the fede ral defe ndants acte d with a sufficie ntly culpable state of mind beca use “[t] he fac t that alternative proce dures might have better addre ssed [a prisoner’ s] particula r needs does not show that the [defendants wer e] deliberately indiffer ent to his medical needs.” Graham ex rel. Estate of Graham v. Cnty. of W ashtenaw , 358 F.3d 377, 384 (6th Cir. 2004). Whil eNo. 09-4108 - 5 - there is no dispute that L y ons contra cted infec tions and suffe red complications from his condition, the rec ord indicates that the fede ral defe ndants routinely examined Ly ons, administered antibiotics to treat his infec tions, provided L y ons with cathe terization supplies and aided him in cathe terization p ro cedur es, consulted with private phy sicians, and approve d four major surg erie s and numerous surg ical proce dures. We have said “[m] edica l car e which is so cursor y as to amount to no treatment at all may amount to deliberate indiffer ence .” Terrance v. Northville Reg’l Psychiatric Hosp ., 286 F.3d 834, 843-44 (6th Cir. 2002)

. Howeve r, the car e that Ly ons rec eived in this case was far from

cursor y . Ly ons’s disag ree ment with the exhaustive testing and t re at m en t h e rec eived while incar cer ated does not constitute an Eigh t h Amendment violation. See Estelle , 429 U.S. at 107; W estlake v . Lucas , 537 F.3d 857, 860 n.5 ( 6th Cir. 1976). L y ons’s rema ining de liberate indiffer ence claims dea lt with the defe ndants’ failure to treat his ere ctile dy sfunction and their order s to transfe r him to various instit utions without reg ard for his medical car e. As the mag istrate judge ’s repor t explained, L

y o n s ’ s e r ectile dy sfunction cannot be said to be a serious medical condition, g iven that no phy sician indicated its treatment was mandatory , it was not ca

using Ly ons pain, and it was not life- threatening

. L y ons did not demon s t rate that the administrative employ ees of the Bur eau of Prisons display ed deliberate indiffer ence with respe ct to his transfe rs from various instit utions. Ly ons failed to establish persona l involvement on the part of the individual defe ndants. See Gibson v. Matthews , 926 F.3d 532, 534-35 (6th Cir. 1991) (“[P] ersona l liability on any of the defe ndants

... must be based

on the actions of that defe ndant in the situation that the defe n dant fac ed, and not based on any problems cause d by the err ors of others

. . .. ”). Acc ording ly , summary judgme nt was proper ly g rante d in favor of

the fe dera l defe ndants on Ly ons’s claims under the Eig hth Amendment. The district c ourt also did not err in granting summary judgme nt in favor of the defe ndants

on L yons’s medical malprac tice claims under the Fe dera l Tort Claims Act. L iability under the Act is deter mined by ref

ere nce to the law of the state wher e the alleg ed medi ca l m al p ractice orNo. 09-4108 - 6 - neg lige nce occur

red. See 28 U.S.C. § 1346(b); Flechsig v. United States , 991 F.3d 300, 303-04 (6th Cir. 1993)

. L y ons alleg ed medical malprac tice in Ohio and must prove, by a preponde ranc e of the evidenc e and g ener ally throug h expert t es t i m o n y , that the defe ndant medical providers failed to adher e to the appr opriate standa rd of care rec og nized by the relevant medica l community and that such failure cause d the plaintiff injury

. Bruni , 346 N.E. 2d at 677-78. Ly ons’s medical malprac tice claims fail for the same rea son his claims ag ainst Dr. Bla ck fail – his lack of exper t ev i d en ce to establish that the fede ral defe ndants brea ched an applicable standard of car e. Nor can Lyons sustain a neg lige nce a ction under N orth Caroline law w ith respec t to the FMC-B utner fe dera l defe ndants,

as North Carolina law also require s expert testimony to establish a prima fac ie case for malprac tice ag ainst a phy sician. Bailey v . Jones , 435 S.E. 2d, 787, 792 (N.C. Ct. App. 1993). L ikewise, L y ons’s claims of malprac tice ag ainst EMSA, the g overnme nt health contra ctor, and its employ ees, which arose in Ohio while Ly ons was housed at the Fr anklin County Correc tional Center , fail beca

use L y ons has provided no expert testimony reg arding the applicable standard of

car e. Summary

judgme nt was prope rly

g rante d in favor of

EMSA and its employ ees. Wit h respe ct to the rema ining alleg ations in Ly ons’s brief in this Court, we find no merit to his arguments that the district court abused its discretion in denying him permission to withdraw his motion to di smiss count four or in deny ing his motion to corre ct cler ical er rors. The judg ment of the district cour t is affirmed.