Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-13-2005
Coleman v. Beard
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4250
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"Coleman v. Beard" (2005). 2005 Decisions. Paper 1193.
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DPS-192 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4250
________________
SHERMAN COLEMAN,
Appellant
v.
JEFFREY BEARD, Secretary of Pennsylvania Department of
Corrections; NEAL MECHLING, Deputy, Superintendent at the
State Correctional Institution at Fayette; MICHAEL J.
HERBIK, Medical Director and Medical Doctor at the State
Correctional Institution at Fayette; PRISON HEALTH CARE SERVICES
INC.; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, and as private
contract health care provider
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-1220)
District Judge: Honorable Kim R. Gibson
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
April 7, 2005
Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES
(Filed: May 13, 2005 )
_______________________
OPINION
_______________________
PER CURIAM
Sherman Coleman appeals the District Court’s order dismissing his complaint as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). We conclude that his appeal lacks an
arguable legal basis.
Coleman is incarcerated at the State Correctional Institution at Fayette (“SCI”). In
August 2004, he filed a document entitled “Declaration in Support of Plaintiff’s Motion
for a Temporary Restraining Order and Preliminary Injunction.” Coleman’s motion
alleged that Dr. Michael J. Herbik, the Medical Director at SCI, had not permitted him to
test his own blood glucose level. Herbik filed a motion to dismiss Coleman’s motion.
The Magistrate Judge recommended that Coleman’s motion be construed as a complaint
and that Herbik’s motion to dismiss be granted. Coleman filed a response and an
“amended” complaint. The complaint named Jeffrey A. Beard, Secretary of the
Pennsylvania Department of Corrections; Neal K. Mechling, Superintendent at SCI; Dr.
Herbik; Prison Health Care Services, Inc. and the Pennsylvania Department of
Corrections. Coleman alleges that the defendants violated his Eighth Amendment,
Fourteenth Amendment and state constitutional rights and discriminated against him
under the Americans with Disabilities Act. The District Court dismissed the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Coleman filed this
timely appeal.
Deliberate indifference to serious medical needs is a violation of the Eighth
2
Amendment and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 103
(1976). To act with deliberate indifference is to recklessly disregard a substantial risk of
serious harm. Farmer v. Brennan, 511 U.S. 825, 836 (1994). We agree that Coleman
failed to plead a claim of deliberate indifference. Coleman does not allege that he is not
receiving treatment for his diabetes; instead, he asserts that Herbik’s medical treatment
was not proper and that he should be permitted to check his own blood glucose level more
often than on the first Monday of each month as provided for by Dr. Herbik’s treatment
regimen. Coleman’s disagreement with the medical care provided by Herbik does not
state an Eighth Amendment claim. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999).
The District Court correctly dismissed the complaint as to the remaining
defendants because Coleman does not allege any personal involvement of these
defendants; it is well-established that there is no respondeat superior liability in § 1983
actions. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Additionally,
Coleman fails to allege any facts that would support a claim of discrimination pursuant to
the ADA. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).
We have reviewed “Plaintiff’s Motion for Stay of Proceeding or Motion for
Remand of Proceeding or Motion to Have Proceeding Dismissed Without Prejudice.” In
this document, Coleman attempts to amend his complaint by providing new information
that he believes will demonstrate deliberate indifference to his serious medical needs.
3
Such claims would more properly be asserted in the District Court, either in a motion for
relief pursuant to Rule 60(b), Fed. R. Civ. P., or in a new complaint. Accordingly, we
deny this motion.
We will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) as lacking any
arguable basis in law.
4