BLD-423 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3203
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KENNETH MURCHISON,
Appellant
v.
WARDEN LEWISBURG USP; NORTHEAST REGIONAL
DIRECTOR NORWOOD, Director of the Northeast Region of FBOP;
UNKNOWN ADMINISTRATIVE REMEDY COORDINATORS;
HENRY J. SADOWSKI, Tort Claim Coordinator;
POTTER, Physician Assistant; PIGOS, Physician Assistant;
SORT TEAM MEMBERS
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:11-cv-01944)
District Judge: Honorable Matthew W. Brann
____________________________________
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
September 12, 2013
Before: HARDIMAN, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: October 18, 2013)
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OPINION
_________
1
PER CURIAM
Pro se Appellant Kenneth Murchison appeals the District Court’s order granting
Defendants’ motion to dismiss or, in the alternative, for summary judgment. For the
reasons set forth below, will summarily affirm the District Court’s judgment. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
I.
Because we primarily write for the parties, we will recite only the facts necessary
for our discussion. Murchison is an inmate at the United States Penitentiary Lewisburg,
in Lewisburg, Pennsylvania (“USP-Lewisburg”). He filed a Bivens1action against Dr.
Kevin Pigos and Physician Assistant Potter (“PA Potter”) alleging that they rendered
improper medical care in violation of the Eighth Amendment with respect to treatment of
his diabetes.2 Specifically, Murchison claims that Dr. Pigos and PA Potter intentionally
1
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971).
2
In his original complaint, Murchison named as defendants various prison officials. The
District Court dismissed with prejudice Murchison’s claims for damages against the
Defendants in their official capacities, as well as his Eighth Amendment conditions of
confinement claim and his First Amendment denial of access to court claim and
recommitted the case to the Magistrate Judge. Thereafter, Murchison filed an amended
complaint to include claims against Dr. Pigos and PA Potter. The District Court
dismissed all of Murchison’s claims, except for his Eighth Amendment claim for denial
of proper medical care against PA Potter and Dr. Pigos and granted Murchison forty-five
days to file a second amended complaint, limiting it to five specific claims. Murchison
never filed a second amended complaint and the District Court treated Murchison’s
claims as proceeding on his first amended complaint with respect only to his claim for
denial of proper medical care against PA Potter and Dr. Pigos. We find no error in the
Court’s doing so.
2
lowered the dosage of his pain medication, Gabapentin 3, without notice or any
examination, in retaliation for a prior conflict he had with PA Potter.4
Dr. Pigos and PA Potter filed a motion to dismiss the complaint, or in the
alternative, a motion for summary judgment. Murchison did not respond to the
Defendants’ statement of material facts and the District Court granted the motion,
concluding that Murchison failed to exhaust his administrative remedies and that he
failed to prove the elements of an Eighth Amendment claim because the Defendants’
undisputed evidence showed that they did not act with deliberate indifference to a serious
medical need. This appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of
a district court’s order granting or denying summary judgment, applying the same
standard as the district court. See Tri–M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir.
2011). We will affirm only if “drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law.” Id. We may summarily affirm the
District Court’s decision if the appeal presents no substantial question. See L.A.R. 27.4;
I.O.P. 10.6.
3
Gabapentin is used to treat polyneuropathy, which is a neurological disorder associated
with his diabetes.
4
Murchison included these allegations in a previous motion for a preliminary injunction,
requesting immediate transfer to USP-Allenwood, which the District Court denied.
3
III.
In the context of Eighth Amendment claims based on medical care, a plaintiff
must demonstrate deliberate indifference to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 106 (1976). “To act with deliberate indifference to serious medical needs is
to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d
318, 330 (3d Cir. 2009). For instance, a plaintiff may make this showing by establishing
that the defendants “intentionally den[ied] or delay[ed] medical care.” Id. (quotation
marks omitted). However, “[w]here 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.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)
(internal quotation marks omitted).
We agree with the District Court that the undisputed evidence shows that Dr.
Pigos and PA Potter did not violate Murchison’s Eighth Amendment right to proper
medical care.5 The record shows that Murchison was seen on a regular basis by the
5
The United States District Court for the Middle District of Pennsylvania’s local Rule
56.1 is clear: “The papers opposing a motion for summary judgment shall include a
separate, short and concise statement of the material facts, responding to the numbered
paragraphs set forth in the” moving party's Rule 56.1 statement. M.D. Pa. Local R. 56.1.
The facts in the moving party's statement are deemed admitted “unless controverted by
the statement required to be served ” by the nonmovant. Id. Here, the Defendants’
statement of material facts are supported by citations to the record. Thus, given that
Murchison did not respond to the Defendants’ statement of material facts, the District
Court did not err in concluding that the Defendants’ material facts are undisputed.
4
medical staff for treatment of his diabetes and related conditions. Specifically, with
respect to his pain medication, when Dr. Pigos first saw Murchison in May 2011, he
prescribed insulin to treat his diabetes and Gabapentin to treat his pain. In July 2011, due
to an increase in neuropathic pain, a physician assistant increased Murchison’s dose of
Gabapentin from 900 mg to 1200 mg. In August 2011, Murchison again complained of
pain and the physician assistant increased his dosage to 1200 mg in the morning and 1800
mg in the evening. The medical records show that Dr. Pigos co-signed the order and the
same prescription was refilled in November 2011 and again in March 2012. In the end of
March 2012, Murchison’s dosage of Gabapentin was increased to 1800 mg, twice a day.
Throughout this period, there are additional medical records showing that Murchison was
seen by medical staff for related problems, including his insulin dosage.
Based on this record evidence, which Murchison has not disputed, the Defendants
treated Murchison’s pain and, in fact, increased the dosage of his Gabapentin, rather than
decreasing it as he alleged. There is nothing in the record to demonstrate that Dr. Pigos
or PA Potter acted with deliberate indifference with respect to Murchison’s medical
needs, or that they improperly denied him treatment. To the extent that Murchison
disagrees with the dosage he received, a prisoner’s disagreement with proper medical
treatment does not imply a constitutional violation. See Spruill v. Gillis, 372 F.3d 218,
235 (3d Cir. 2004). Accordingly, the District Court properly granted summary judgment
in favor of the Defendants because there is no genuine issue of material fact and there is
5
no evidence that the Defendants exhibited deliberated indifference to a serious medical
need.6
IV.
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
6
Because we conclude that summary judgment is appropriate in this instance, we do not
need to address whether Murchison exhausted his administrative remedies with respect to
his claims against PA Potter and Dr. Pigos.
6