DLD-133 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1077
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MALIK FLOWERS,
Appellant
v.
M. FRANCOISE, Nurse; MARIE DESANE, Nurse;
SUE SPINGLER, Nurse; INAISH JACKSON, Nurse Practitioner;
IHUOMA NWACHUKWU, Doctor; XIANGRONG ZHOU
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3:18-cv-13686)
District Judge: Honorable Peter G. Sheridan
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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
April 21, 2022
Before: KRAUSE, MATEY and PHIPPS, Circuit Judges
(Opinion filed: July 6, 2022)
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OPINION *
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Malik Flowers, a state inmate proceeding pro se and in forma pauperis, appeals from
the sua sponte dismissal of his civil rights claims against one defendant and the grant of
summary judgment in favor of the remaining defendants by the United States District Court
for the District of New Jersey. For the reasons that follow, we will summarily affirm.
I.
In 2018, Flowers filed a complaint under 42 U.S.C. § 1983 alleging Eighth
Amendment violations relating to the health care he received while incarcerated at the New
Jersey State Prison (“NJSP”). Flowers was diagnosed as diabetic in November 2016 and
placed on insulin. In January 2017, the insulin was discontinued, and Flowers was
prescribed glipizide as a keep-on-person, or “K.O.P.” medication. Flowers asserted that
he took the glipizide every morning until on or about September 11, 2017. Thereafter, he
stopped receiving his medication, about which he complained to Defendants Zhou, Desane,
Francoise, Spingler, and Jackson. Flowers was told either that they would look into it, or
that he was not prescribed the medication he had previously received. Flowers asserted
that he did not resume receiving his medication until February 2018, after he was seen by
Defendant Dr. Nwachukwu. Flowers alleged that the defendants’ failure to resume his
medication prior to that appointment despite his complaints amounted to a denial of
medical care and deliberate indifference to his serious medical needs in violation of the
Eighth Amendment.
The District Court screened Flowers complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) and dismissed Flowers’ claim against Defendant Nwachukwu without
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prejudice. Flowers did not amend, and the original complaint proceeded against the
remaining defendants, who moved to dismiss. The motion was denied and, at the
conclusion of discovery, the parties filed cross motions for summary judgment. 1 Finding
no genuine issue of material fact regarding the allegations of deliberate indifference to
Flowers’ serious medical needs, the District Court granted summary judgment in favor of
the defendants, denied Flowers’ motion, and ordered the case closed. Flowers filed a
timely notice of appeal.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review
over a District Court’s sua sponte dismissal for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e must accept
as true the factual allegations in the complaint and all reasonable inferences that can be
drawn therefrom.” Id. (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). We also
exercise plenary review over a grant of summary judgment, applying the same standard
that the District Court applies. Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877
F.3d 136, 141 (3d Cir. 2017). Summary judgment is appropriate “if the movant shows that
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Defendants’ initial motion for summary judgment was denied without prejudice
after the District Court correctly noted that the defendants in several instances had either
quoted records not attached to their motion or mischaracterized portions of the record they
did include. Defendants were given an opportunity to file a new motion for summary
judgment, including all proper corresponding exhibits and correct citations thereto.
Defendants subsequently filed a new motion for summary judgment, making the same legal
arguments and correcting the deficiencies noted in the first motion.
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there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). We may summarily affirm if the appeal fails to
present a substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
III.
Prison officials “violate the Eighth Amendment when they act deliberately
indifferent to a prisoner’s serious medical needs by intentionally denying or delaying
access to medical care or interfering with the treatment once prescribed.” Pearson v. Prison
Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quotation marks and citation omitted). “We
have found ‘deliberate indifference’ in a variety of circumstances, including where the
prison official (1) knows of a prisoner’s need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical treatment based on a non-medical
reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Mere allegations of
medical malpractice or disagreement as to the proper medical treatment is insufficient to
support an Eighth Amendment claim. Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 346 (3d Cir. 1987).
We agree with the District Court’s assessment that Flowers failed to state an Eighth
Amendment claim against Defendant Dr. Nwachukwu. Defendants in civil rights actions
“must have personal involvement in the alleged wrongs to be liable and cannot be held
responsible for a constitutional violation which he or she neither participated in nor
approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (quotation marks and
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citations omitted). “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988). As the District Court explained, Flowers failed to allege any personal
involvement by the doctor in the alleged denial of his medication or alleged only
supervisory authority on the part of the doctor. Such allegations are insufficient to establish
the personal involvement necessary to state a claim of deliberate indifference. Id. at 1207-
08.
The District Court properly granted summary judgment in favor of Defendants
Spingler and Zhou on similar grounds. As the District Court explained, Flowers did not
adequately allege the personal involvement of either Spingler or Zhou beyond their
participation in responding to Flowers’ administrative grievances. Nor does the record
reflect a genuine dispute as to the level of personal involvement necessary to support a
claim of deliberate indifference. See id.
The District Court also properly granted summary judgment in favor of the
remaining Defendants, all nurses, because the record does not raise a genuine dispute that
they acted with deliberate indifference. While Flowers asserted that he had a prescription
for glipizide at the time he ran out of his K.O.P. medication in September 2017, medical
records submitted in support of Defendants’ motion for summary judgment show that
Flowers’ prescription for glipizide expired in July 2017, after his initial one-year
prescription was changed to 180 days in January 2017. Those records indicate that Flowers
gave his verbal understanding of that change, and subsequent medical visits in March and
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May of 2017 clearly noted the 180-day, rather than one-year, prescription time frame.
Flowers’ extensive medical records indicate that his diabetes was being closely monitored,
and when tests conducted in October 2017 revealed elevated hemoglobin A1c levels,
Flowers was immediately re-prescribed glipizide. To the extent that Flowers believes he
should have been prescribed glipizide during the time between the two prescriptions, we
agree with the District Court’s conclusion that the record, at most, establishes a “mere
disagreement as to the proper medical treatment,” which is insufficient to support an Eighth
Amendment claim of deliberate indifference. Monmouth Cnty Corr. Inst. Inmates, 834
F.2d at 346.
As to the time between October 2017 and January 2018, medical records for two
visits in November 2017 note a prescription for glipizide and no indication that Flowers
complained of not receiving the medication. Records for the November 30, 2017
appointment indicate Flowers had no complaints at the time of his visit and was compliant
with his medications. At a March 5, 2018 medical visit, records indicate that Flowers told
medical staff that he had not “taken” his glipizide from October to January, but that he was
taking it at the time of his appointment. Flowers was then counseled on the need to comply
with his medications. As the District Court noted, Flowers’ own statement indicated that
he had not “taken” his medication, as opposed to having not been provided his medication.
Further, Flowers has not contested or challenged these records, or his purported statement,
in any of his filings. Because Flowers failed to show a genuine dispute regarding his claims
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of deliberate indifference, the denial of Flowers’ motion for summary judgment and the
grant of summary judgment in favor of the defendants was appropriate.
Accordingly, we will summarily affirm the District Court’s judgment.
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