Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-22-2009
Jesus Diaz v. Thomas Carroll
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3665
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BLD-145 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3665
___________
JESUS DIAZ,
Appellant
v.
WARDEN THOMAS CARROLL;
CORRECTIONAL MEDICAL SERVICES INC.;
CPL MERSON; LEE ANN DUNN;
DEBORAH RODWELLER; CINDY ATALLIAN
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 06-cv-00550)
District Judge: Honorable Sue. L. Robinson
____________________________________
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
March 26, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Filed: April 22, 2009)
_________
OPINION
_________
PER CURIAM
Jesus Diaz, an inmate at James T. Vaughn Correctional Center, appeals pro se
from orders by the District Court granting the defendants’ motions to dismiss and for
summary judgment. For substantially the same reasons provided by the District Court, we
will affirm.
I.
On September 5, 2006, Diaz filed a complaint under 42 U.S.C. §1983, alleging a
violation of his Eighth and Fourteenth Amendment rights because defendants had failed
to provide adequate medical care for his eye condition, as well as related state law claims.
He also alleged that the prison’s grievance system was inadequate. According to Diaz,
his medical condition began on August 29, 2003, when he first noticed a growth forming
on his left eye. In support of his claims, Diaz attached several exhibits. He attached a
sick call request with a response on September 3, 2003 stating that Diaz was referred to
sick call. Diaz included a grievance he filed two years later on September 6, 2005, where
he claimed that he had still not been seen by a doctor. This grievance included an
informal resolution signed by Dunn, which notes that Diaz would begin receiving
treatment. On December 5, 2005, Diaz submitted another sick call request stating that his
eye continued to bother him and that he was trying not to lose his sight. On January 3,
2006, Diaz received a response which noted that he had a consultation written for the eye
doctor on December 27, 2005. Diaz also attached a January 19, 2006 letter from his
counselor, Atallian, who informed him that medical staff were aware of his problems and
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that details for his proposed care were being worked out. Finally, Diaz included a
grievance from April 13, 2006, in which he alleged that his previous grievances and sick
calls had been ignored.
On December 14, 2006, the District Court issued an order dismissing Diaz’s
claims regarding the prison’s grievance system as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b)(1). The court also dismissed Diaz’s state law medical
malpractice claims for failure to include an affidavit of merit signed by an expert, as
required by 18 Del. C. § 6853(a)(1).
Defendants Dunn and Rodweller moved the District Court to dismiss for failure to
state a claim upon which relief could be granted in March 2007. The court treated this as
a motion for summary judgment, and granted it after deciding that there was no legal
basis to conclude that either Dunn or Rodweller were deliberately indifferent to Diaz’s
serious medical needs. Correctional Medical Services, Inc. (“CMS”) also filed a motion
to dismiss; however, the court found that Diaz had made sufficient allegations to deny
CMS’s motion to dismiss.1
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Both Dunn and Rodweller and CMS alleged that Diaz failed to properly exhaust
his administrative remedies pursuant to 42 U.S.C. §1997e(a). Defendants argued for
dismissal because Diaz did not “appeal” any grievances regarding his medical care. The
District Court noted that Diaz had alleged he had filed multiple sick call slips and
grievances and that it is unclear how one appeals from an absolute failure to respond.
The court thus denied this portion of the motion to dismiss.
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Defendants Carroll, Merson, and Atallian, collectively as “state defendants,” and
defendant CMS both filed motions for summary judgment in January and February 2008.
Diaz filed a motion to amend his complaint to add three new defendants. The District
Court granted defendants’ motions for summary judgment and denied Diaz’s motion to
amend. With respect to the state defendants Carroll, Merson, and Atallian, the court
concluded that Diaz cannot establish liability on the basis of respondeat superior because
each lacked personal involvement.
With respect to CMS, the court concluded that Diaz failed to make a sufficient
showing as to the necessary elements of his claim for deliberate indifference to a serious
medical need. Specifically, the court noted that Diaz admitted to being seen by numerous
nurses in 2004 and 2005 regarding his eye complaints. CMS also responded to Diaz’s
grievances and sick call slips, in particular in December 2005 when Diaz was sent to an
eye doctor for a consultation. Although there was a three-month delay from the
December 2005 sick call request, Diaz received medical treatment in early March 2006.
When Diaz filed a grievance regarding his treatment in April 2006, he received a prompt
response. Another grievance in May 2006 resulted in a treatment plan, even though Diaz
did not agree with it. Finally, the court determined that an ophthalmologist, Dr.
Markowitz, provided medical care in May and July 2006 and performed a surgical
procedure on Diaz’s eyes in October 2006. Diaz continued to receive follow-up care, but
alleged that he was not satisfied with the treatment provided by Dr. Markowitz. The
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District Court thus determined that Diaz failed to make a sufficient showing to hold CMS
liable for deliberate indifference on a theory of respondeat superior. The court found that
Diaz did not receive medical care during a three-month period at most, but concluded that
this constituted negligence.
Accordingly, the District Court granted CMS’s motion for summary judgment
regarding Diaz’s medical claims. The court also held that Diaz’s motion to amend was
untimely and that amendment would be futile. The District Court denied Diaz’s
subsequent motion to alter the judgment.
We have jurisdiction under 28 U.S.C. § 1291. Because Diaz is proceeding in
forma pauperis in this appeal, we must dismiss the appeal under 28 U.S.C. § 1915
(e)(2)(B) if it is legally frivolous. We may summarily affirm if Diaz’s appeal presents no
substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
II.
Dunn and Rodweller brought a motion to dismiss, but referred to matters outside
the pleadings, and thus, the District Court treated their motion as one for summary
judgment under Rule 56. See Fed. R. Civ. P. 12(d). A district court must provide notice
of its intention to convert a motion to dismiss and allow a plaintiff a “reasonable
opportunity to present all material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
The failure to give adequate notice does not, however, require automatic reversal; it may
be excused if the failure was a “harmless error.” Rose v. Bartle, 871 F.2d 331, 342 (3d
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Cir. 1989). We exercise plenary review and may affirm if, on the basis of the complaint
filed, there was no set of facts which could be proven to establish defendants’ liability.
Id.
To show a violation under the Eighth Amendment, Diaz must allege “(1) that the
defendants were deliberately indifferent to their medical needs and (2) that those needs
were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Diaz must allege some basis for concluding that
prison officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S.
825, 835 (1994). Deliberate indifference requires that prison officials know of an
excessive risk to an inmate’s health or safety and affirmatively disregard that risk. Id. at
837-838.
Assuming Diaz alleged a serious medical need, we agree with the District Court
that he did not allege that Dunn or Rodweller were deliberately indifferent to his medical
condition. Farmer, 511 U.S. at 837-838. As the District Court noted, Dunn and
Rodweller responded promptly to Diaz’s grievances and provided a referral for treatment.
Dunn responded to his medical grievances and entered into an “informal resolution” with
Diaz that set forth a medical treatment plan. Diaz also does not have a claim against
Rodweller based on his April 2006 grievance because he was seen by a doctor the
following month. Thus, Diaz’s claims against Dunn and Rodweller were properly
dismissed because he cannot state a claim upon which relief could be granted under the
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Eighth Amendment. Accordingly, we conclude that failure to provide notice to Diaz was
harmless error. Rose, 871 F.2d at 324.
III.
We exercise plenary review over the district court’s order granting the motion for
summary judgment. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006).
Summary judgment is proper if there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue of
material fact exists only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
Summary judgment was properly entered in favor of defendants because Diaz
failed to provide any evidence to demonstrate that there was a genuine issue of material
fact. Diaz did not provide any evidence regarding the seriousness of his eye condition,
such as any medical records or evidence indicating his loss of sight. Moreover, even if he
had, Diaz failed to set forth any evidence indicating that defendants were deliberately
indifferent to this medical need. With respect to defendant Carroll, Diaz has not shown
that Carroll had actual knowledge that prison doctors were mistreating him. See Durmer
v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004). Similarly, Merson cannot be held liable because Diaz has not provided any
7
evidence demonstrating deliberate indifference beyond the unsupported assertions
contained in his complaint. See Connors v. Fawn Mining Corp., 30 F.3d. 483, 489 (3d
Cir. 1994). As for Atallian, Diaz conceded in his deposition that she did not violate his
constitutional rights. Thus, the District Court properly granted summary judgment with
respect to these defendants.
Diaz also failed to show that CMS was deliberately indifferent. In his opposition
to summary judgment, Diaz relied on an examination that took place on March 28, 2008,
where the doctor stated that Diaz “needs surgery.” Not only does this one doctor’s
opinion go beyond the scope of the time period alleged in his complaint, but it is
insufficient to support Diaz’s claim that CMS was deliberately indifferent. Spruill, 372
F.3d at 235 (“mere disagreement as to the proper medical treatment” is insufficient to
state a constitutional violation). Moreover, the record indicates that despite Diaz’s
allegations that he was untreated for three years, during his deposition he acknowledged
being seen by many nurses in 2004 and 2005. The record also establishes that he received
a surgical procedure and follow-up care for his eye condition. Diaz has not provided
evidence that would allow a reasonable jury to conclude otherwise. Thus, Diaz did not
meet his burden at summary judgment for his claim against CMS.
IV.
Finally, we consider whether the District Court properly denied Diaz’s motions for
counsel. Although Diaz contended that his eye condition significantly compromised his
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vision, his complaint and other filings in the District Court reflect that he was capable of
presenting his case. Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993); Smith-Bey v.
Petsock, 741 F.2d 22, 26 (3d Cir. 1984). Accordingly, the District Court did not abuse its
discretion in denying Diaz’s motions.
V.
As Diaz’s appeal presents no substantial question, we will summarily affirm. The
motion for appointment of counsel is denied.
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