Smith v. Municipality of Lycoming County , 335 F. App'x 147 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-12-2009
Smith v. Lycoming County
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3634
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Recommended Citation
"Smith v. Lycoming County" (2009). 2009 Decisions. Paper 1189.
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CLD-65 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3634
STEVEN SMITH,
Appellant
v.
THE MUNICIPALITY OF LYCOMING COUNTY; LYCOMING COUNTY PRISON
BOARD AND ITS OFFICERS AND MEMBERS; PRISON WARDEN DAVID
DESMOND; DR. WILLIAM KEENAN, Prison Physician; DR. JEFFREY
VERZELLA, Prison Physician; DR. MARK SCHILDT, Prison Physician;
DR. TIMOTHY HEILMAN, Prison Physician; DR. SUSAN MOWATT, Prison
Physician; DR. VICTOR HUANG, Prison Physician; CATHERINE LYNCH,
Prison Nurse; KIM POORMAN Prison Nurse; UNIDENTIFIED PHYSICIANS
OF ATTENDANCE JOHN AND JANE DOES
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 05-cv-01729)
District Judge: Honorable Christopher C. Conner
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
December 6, 2007
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Opinion filed: June 12, 2009)
OPINION
PER CURIAM
Steven Smith, a state prisoner, suffers from a host of maladies, including hepatitis,
variants of the herpes virus, genital warts, a compromised immune system because of the
removal of his spleen, and lingering complications from the bowel obstruction surgery he
required after he swallowed the handles of two plastic spoons. He sued the municipality
of Lycoming County, the Lycoming County Prison Board (and its officers and members),
the prison warden, six prison doctors, and two prison nurses, mostly claiming violations
of the Eighth Amendment’s prohibition against cruel and unusual punishment.1
Defendants Lycoming County, Lycoming County Prison Board, the warden, and
Nurses Lynch and Portman filed a joint motion to dismiss the complaint. The District
Court granted the motion in part and denied it in part. Specifically, the District Court
held that any claims against those defendants arising before August 16, 2003, were barred
by the statute of limitations. The District Court also dismissed the complaint against
Lycoming County because Smith had not alleged that the municipality had caused any
constitutional violation under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Concluding that Smith’s dissatisfaction with the grievance procedure did not rise to the
level of a constitutional violation, and that Smith could not impose liability for inadequate
care on the non-medical defendants, the District Court also dismissed the complaint
against the Prison Board and the warden. The District Court denied the motion as to the
1
As the parties are familiar with the facts of this case, we will not discuss them in
detail. We will, however, refer to them as they become relevant to our analysis.
2
nurse defendants.
The six doctor defendants also moved to dismiss the complaint, but, as they relied
on information outside the pleadings, the District Court converted the motion to a motion
for summary judgment and allowed the parties time to submit additional argument and
documentation. Ultimately, the District Court granted the motion for summary judgment.
The District Court rejected Smith’s arguments for tolling and held that the statute of
limitations barred all claims against doctors before September 25, 2003. The District
Court concluded that Smith did not show that three of the doctors were personally
involved in any of the alleged wrongs or that the other three doctors were deliberately
indifferent to his serious medical needs.
The two nurse defendants filed a joint motion for summary judgment, and Smith
filed a cross motion for summary judgment. The District Court granted the former and
denied the latter. The District Court ruled that Smith had not shown that the prison nurses
had harassed him. The District Court also concluded that Nurse Lynch had not been
deliberately indifferent when she stopped one of his medications or otherwise.
Smith appeals the judgment entered in favor of all the defendants. As Smith does
on appeal, Smith twice sought the appointment of counsel in the District Court. (The
District Court denied both requests.2 )
2
It is not clear whether Smith takes issue with the District Court’s orders denying his
motions for appointment of counsel, although he does move for appointment of counsel
on appeal. In any event, the District Court did not abuse its discretion in denying counsel
to Smith. See Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993). Some of Smith’s
3
We have jurisdiction pursuant to 28 U.S.C. § 1291. We will summarily affirm the
District Court because no substantial issue is presented on appeal. See L.A.R. 27.4;
I.O.P. 10.6.
First, the District Court properly limited Smith’s claims to those occurring in the
two years before he filed his complaint. A two-year statute of limitations governs the
claims Smith brought pursuant to 42 U.S.C. § 1983. See Urrutia v. Harrisburg County
Police Dep’t, 91 F.3d 451, 457 n.9 (3d Cir. 1996). A § 1983 claim accrues when the
plaintiff knows, or has reason to know, of the injury on which the claim is based.
See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998). Smith knew, or had
reason to know, of his alleged mistreatment when it occurred. Despite his arguments to
the contrary, he was not entitled to have the statute of limitations tolled based on his
status as an incarcerated person, an allegation that some of the defendants would not
divulge their names, or his inaccurate contention that he was subject to a continuing
wrong. See Lake v. Arnold, 232 F.3d 360, 370 n. 9 (3d Cir. 2000).
Second, the District Court properly entered judgment in favor of Lycoming County
and Doctors Verzella, Mowatt, and Heilmann because Smith did not implicate them as
personally involved in his treatment or alleged mistreatment. See City of Canton v.
allegations may have appeared to have some merit at the outset, a factor that weighs in
favor of appointing counsel. However, Smith showed himself to be able to articulate his
claims and to respond to the defendants’ motions. Furthermore, Smith’s case relied on
the retelling of events that happened in his presence; he did not need to engage in an
extensive investigation or to obtain an expert witness.
4
Harris, 489 U.S. 378, 385 (1989); Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir.
1988).
The District Court’s entry of judgment in favor of the warden of the prison and the
Lycoming County prison board (and its officers and members) was also proper. To the
extent that Smith based his claims against these defendants on his dissatisfaction with the
grievance procedure, his claims failed because he does not have a constitutionally
protected right to a grievance procedure. See McGuire v. Forr, No. 94-6884, 1996 U.S.
Dist. LEXIS 3418, *2 (E.D. Pa. Mar. 21, 1996), aff’d 101 F.3d 691 (3d Cir. 1996). To
the extent that Smith, under the care of prison doctors, sought to impose liability on non-
medical prison officers without showing that they had actual knowledge or a reason to
believe that doctors were mistreating him, his claims also failed. See Spruill v. Gillis,
372 F.3d 218, 236 (3d Cir. 2004).
The District Court properly entered judgment in favor of the remaining defendants
(three doctors and two nurses) and against Smith on the remaining claims of harassment
and Eighth Amendment violations. Mere verbal harassment or abuse, like a comment
about the thickness of Smith’s medical file or a question about the validity of one of
Smith’s medical complaints, is not a civil rights violation. See Oltarzewski v. Ruggiero,
830 F.2d 136, 139 (9th Cir. 1987).
To show that the prison medical personnel violated the Eighth Amendment’s
prohibition on cruel and unusual punishment, Smith had to show that they acted with
5
deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97,
104 (1976); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Mere negligence or
mere disagreement about the course of proper medical treatment does not constitute an
Eighth Amendment violation. See White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990);
Monmouth County Corr. Inst. Inmates v. Lensario, 834 F.2d 326, 346 (3d Cir. 1987).
Based on Smith’s allegations in his complaint, prison doctors and nurses regularly
examined him at Lycoming prison. Smith’s medical records revealed that he frequently
and promptly received medical attention when he requested it. For instance, on October
6, 2003, he submitted a sick call request because of dandruff, headaches, and skin lesions.
Although the doctor on call noted Smith’s frequent demands for inappropriate antibiotic
use, Smith was seen on the next clinic day and prescribed dandruff shampoo. Also, on
October 30, 2003, Smith complained of a herpes outbreak. That same day, a prison
doctor issued him a prescription to treat his condition. The nurses and doctors addressed
Smith’s other complaints and, when necessary, referred him to a specialist or sent him to
the hospital for care. Once, a doctor may have stopped one of Smith’s medications
prematurely because of an administrative mix-up when he transferred to Lycoming
prison. However, the doctor was not deliberately indifferent to a serious medical need; on
Smith’s request, the doctor reevaluated Smith’s need for the prescription but decided it
was unnecessary. The nurses who did not administer the prescription were following
doctor’s orders, as they must. Essentially, as the District Court concluded, Smith just
6
disagreed with the course of treatment he received. Smith’s rights under the Eighth
Amendment were not violated.
For the foregoing reasons, the District Court properly entered judgment in favor of
the defendants and against Smith. Accordingly, we will affirm the District Court’s
judgment. We deny Smith’s motion for appointment of counsel.