Hakeem v. Salaam , 260 F. App'x 432 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-11-2008
Hakeem v. Salaam
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2114
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BLD-47 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2114
___________
ALI ABDUL HAKEEM,
Appellant
v.
DR. AHMED SALAAM; WILLIAM BOLGER; CAPTAIN EY;
WARDEN ROMINE; EVANGELICAL HOSPITAL; UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 03-cv-00098)
District Judge: Honorable Thomas I. Vanaskie
____________________________________
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
November 8, 2007
Before: MCKEE, RENDELL AND SMITH, CIRCUIT JUDGES.
(Opinion filed January 11, 2008)
_________
OPINION
_________
PER CURIAM
Ali Abdul Hakeem, a federal prisoner proceeding pro se, appeals from the District
Court’s order granting the appellees’ motions for summary judgment and denying his
request for a court-appointed expert witness. For the reasons set forth below, we will
summarily affirm the District Court’s order. See I.O.P. 10.6.
I.
In 2001, Hakeem was incarcerated at the United States Penitentiary in Lewisburg,
Pennsylvania (“USP-Lewisburg”). On March 21, 2001, he was diagnosed with
gynecomastia and admitted to Evangelical Community Hospital (“Evangelical”) for
subcutaneous mastectomy surgery. As part of the anesthesia for the surgical procedure,
an endotracheal tube was inserted into Hakeem’s throat. After returning to USP-
Lewisburg, Hakeem complained of pain in this throat. Over the course of the following
four months, several prison healthcare providers including Dr. Ahmed Salaam and
Physician’s Assistant (“P.A.”) William Bolger, treated Hakeem for the pain in his throat
and other complaints.
On January 14, 2003, Hakeem filed a complaint in the United States District Court
for the Middle District of Pennsylvania alleging that he was denied adequate medical
treatment for his throat condition. Hakeem named as defendants the United States, USP-
Lewisburg Warden Romine, USP-Lewisburg Captain Ey, Dr. Salaam, P.A. Bolger (the
“federal defendants”), and Evangelical. In the complaint, Hakeem alleged that
Evangelical was negligent in inserting the tracheal tube during surgery, and that the
federal defendants were negligent and deliberately indifferent in their treatment following
Hakeem’s surgery. Hakeem sought damages under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims
Act, 28 U.S.C. § 2671, et seq. (the “FTCA”).
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Evangelical responded to Hakeem’s complaint by moving for dismissal from the
action, and the federal defendants moved for summary judgment. By order entered
September 30, 2004, the District Court dismissed the Bivens and FTCA claims as to
Evangelical, and dismissed Warden Romine and Captain Ey from the suit. The court
found, however, that it was inappropriate to dismiss Hakeem’s remaining claims prior to
discovery. Accordingly, the negligence claims against Evangelical and the United States
remained, as did the deliberate indifference claims against Dr. Salaam and P.A. Bolger.
Approximately one year later, Evangelical and the federal defendants filed motions
for summary judgment. In response, Hakeem filed a motion for appointment of a medical
expert. On July 18, 2006, a Magistrate Judge issued a report recommending that
Evangelical’s motion be granted but that the federal defendants’ motion be denied. The
Magistrate Judge further recommended that Hakeem’s motion be denied. The federal
defendants and Hakeem filed objections and, by order entered March 13, 2007, the
District Court sustained the federal defendants’ objections, overruled Hakeem’s
objections, and entered summary judgment in favor of the defendants. The present appeal
followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and review a
District Court’s grant of summary judgment de novo. Pennsylvania Coal Ass’n v.
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Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). Summary judgment is proper only if it appears
“that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Carrasca v. Pomeroy, 313 F.3d
828, 832-33 (3d Cir. 2002). If a motion for summary judgment demonstrates that no
genuine issue of material fact exists, the nonmoving party must set forth specific facts
showing a genuine material issue for trial and may not rest upon the mere allegations or
denials of its pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir. 1994).
III.
A. Evangelical’s Motion for Summary Judgment
The District Court properly concluded that there was an insufficient evidentiary
basis on which a reasonable jury could find in Hakeem’s favor on his negligence claim
against Evangelical. In order to establish medical malpractice under Pennsylvania law, a
plaintiff must present an expert witness who will testify, to a reasonable degree of
medical certainty, that the acts of the physician deviated from accepted medical standards,
and that such deviation was the proximate cause of the harm suffered. Mitzelfelt v.
Kamrin, 584 A.2d 888, 891 (Pa. 1990). The only instance in which expert testimony is
not required is when the matter is so simple or the lack of care so obvious as to be within
the range of experience and comprehension of non-professional persons. Hightower-
Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997).
In this case, the District Court correctly found that the procedure for proper
insertion of an endotracheal tube is not within the knowledge of the average lay juror.
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See id. Therefore, in order to survive summary judgment, Hakeem was required to
present a medical expert who would opine at trial that the Evangelical medical staff
deviated from acceptable medical standards when inserting the endotracheal tube. See id.
Hakeem failed to do so. Further, although Hakeem argued that he could have supported
his claim had the court granted his request for an expert witness, the District Court acted
within its discretion in denying the request. See Boring v. Kozakiewicz, 833 F.2d 468,
474 (3d Cir. 1987). Without a medical expert, Hakeem could not create a genuine issue
for trial on this claim. Therefore, we conclude that summary judgment was proper. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. The Federal Defendants’ Motion for Summary Judgment
1. Eighth Amendment Obligation to Provide Adequate Medical Care
Hakeem was also unable to meet his burden on his Eighth Amendment claim
against Dr. Salaam and P.A. Bolger. In the complaint, Hakeem alleged that Dr. Salaam
and P.A. Bolger completely ignored his complaints of pain in his throat. In order to
prevail on these claims, Hakeem must show that these healthcare providers were
deliberately indifferent to a serious medical need. See Estelle v. Gamble, 429 U.S. 97,
104 (1976). Deliberate indifference requires a sufficiently culpable state of mind, such as
“reckless[] disregard[]” to a substantial risk of serious harm to a prisoner. See Farmer v.
Brennan, 511 U.S. 825, 834, 836 (1994). Allegations of negligent treatment are medical
malpractice claims, and do not trigger constitutional protections. Estelle, 429 U.S. at
105-06.
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The District Court correctly concluded that Hakeem failed to offer any evidence to
support his allegations of deliberate indifference. Although Hakeem claims that his
repeated complaints of throat pain went completely ignored, he cannot rest upon mere
unsupported allegations when faced with a motion for summary judgment. See Connors,
30 F.3d at 489. Furthermore, the prison’s medical records indicate that when Hakeem
complained of throat pain, he was prescribed Tylenol with Codeine, examined by the
prison dentist, and referred to an Ear, Nose, and Throat (“ENT”) specialist who treated
him for laryngitis and hoarseness with a reflux component. As the District Court
explained in its opinion below, there is no evidence that Dr. Salaam or P.A. Bolger
purposefully ignored Hakeem’s complaints of throat pain, or that his pain reflected a
serious medical condition. See Estelle, 429 U.S. at 104. Therefore, the District Court
correctly concluded that Dr. Salaam and P.A. Bolger were entitled to summary judgment
on Hakeem’s Eighth Amendment claims against them.
2. The FTCA Negligence Claim
Next, we address Hakeem’s negligence claim against the United States under the
FTCA.1 In assessing a claim under the FTCA, we apply the law of the state in which the
1
The FTCA waives the sovereign immunity of the United States for torts of federal
employees acting within the scope of their employment “under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
6
act or omission occurred. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d
Cir. 2000). As discussed above, a plaintiff alleging medical malpractice under
Pennsylvania law will ordinarily be required to present an expert witness. Mitzelfelt, 584
A.2d at 891. Therefore, we agree with the District Court that, in order to survive
summary judgment, Hakeem had to produce expert opinion supporting his allegations of
negligence. The prison’s medical records indicate that Hakeem was examined by medical
staff nearly 20 times in the four months following his surgery, and that his throat pain was
treated on several of these occasions. Absent expert opinion that the prison’s treatment
deviated from acceptable medical standards, a reasonable fact-finder could not conclude
that the prison acted negligently. See Farmer, 511 U.S. at 836.
C. Motion for Appointment of a Medical Expert
Finally, we conclude that the District Court did not err in denying Hakeem’s
motion for appointment of a medical expert. In Boring v. Kozakiewicz, we held that
there is no statutory authority for payment of expert witness fees in civil suits for
damages. See 833 F.2d at 474. In that case, we explained:
The plaintiffs’ dilemma in being unable to proceed in this damage
suit because of the inability to pay for expert witnesses does not
differ from that of nonprisoner claimants who face similar problems.
Nonprisoners often resolve that difficulty through contingent fee retainers
with provisions for arranging expert testimony. By seeking government
funding in this case, plaintiffs are in effect asking for better treatment than
their fellow-citizens who have not been incarcerated but who have at least
equal claims for damages.
Id. Accordingly, we find no error in the District Court’s decision to deny Hakeem’s
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request for an expert.
For the foregoing reasons, we conclude that the District Court properly entered
summary judgment against Hakeem on all of his claims. As there is no substantial
question presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4;
I.O.P. 10.6. In light of our disposition, Hakeem’s motion for appointment of counsel is
denied as moot.
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