Roger Etkins v. Judy Glenn

CLD-235 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1253
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ROGER ANTHONY ETKINS,
Appellant
v.
JUDY GLENN;
MR. R. SMITH, R.S.A;
P.A. ERIC ASP
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 1:10-cv-00216)
District Judge: Honorable Sean J. McLaughlin
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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
May 9, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: June 3, 2013)
_________
OPINION
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PER CURIAM
Roger Etkins appeals from the District Court’s dismissal of his complaint. For the
following reasons, we will grant the appellees’ motion and summarily affirm.
I.
Roger Etkins, a federal prisoner, filed a civil rights complaint pursuant to Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
against Judy Glenn, a nurse practitioner at the prison; Rodney Smith, the prison’s health
services administrator; and Eric Asp, a physician’s assistant at the prison. Etkins suffers
from epididymitis, causing chronic pain in his left testicle, and osteoarthritis, causing
pain in his right knee, for which Defendant Asp prescribed Sulindac tablets. On April 29,
2009 pursuant to prison policy, the prison pharmacy confiscated Etkins’ medication upon
his transfer to confinement. The pharmacy failed, however, to reissue his medication
within the 24-36-hour timeframe required by prison regulations. Etkins submitted two
written requests to Defendant Asp— one on May 3, 2009 the other on May 6, 2009—
explaining that he was without his medication. Etkins alleged that Defendant Asp did not
respond until May 12, 2009.
Defendant Asp, the lone remaining defendant, moved for summary judgment.1
Plaintiff testified that, pursuant to the procedures, the physician’s assistant would issue
1
In its initial screening of the complaint, the District Court properly dismissed Etkins’
claims against Defendant Glenn for failure to exhaust his administrative remedies, and
against Defendant Smith. See Durmer v. O’Carroll, 991 F.2d 64 (3d Cir. 1993) (holding
that non-medical prison officials cannot be considered deliberately indifferent because
they failed to respond to the medical complaints of a prisoner who was already being
treated by the prison medical staff). The Court also correctly rejected Etkins’ other
Eighth Amendment claim against Defendant Asp, as the undisputed evidence in the
summary judgment record indicated he ordered Etkins a knee sleeve on the same day it
was requested.
2
prescriptions, the pharmacy would fill them, and the pharmacy would provide the
medication to the proper personnel for delivery. Etkins testified that Defendant Asp
never delivered the medication to him. While Etkins stated in his response to the
summary judgment motion that Defendant Asp delayed in responding to his request for
medical attention, Plaintiff testified that “sick call really wasn’t the issue … the
medication [Defendant Asp] generally prescribed would have been sufficient.” This
shows that there was no evidence to support a claim arising from Defendant Asp’s
attention to Etkins’ medical needs. The Magistrate Judge properly found that Etkins’
claim against Asp lacked merit because Defendant Asp had no control over the prison
pharmacy’s delay in reissuing Etkins his medication. The District Court adopted the
Magistrate Judge’s report and recommendation, and entered summary judgment in favor
of Defendant Asp. Etkins timely appealed. The appellees have filed a motion asking that
we summarily affirm the District Court’s judgment.
II.
We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over
the District Court’s order granting summary judgment. See Saldana v. Kmart Corp., 260
F.3d 228, 231 (3d Cir. 2001). Summary judgment is proper when, viewing the evidence
in the light most favorable to the nonmoving party and drawing all inferences in favor of
that party, no genuine issue of material fact exists. See Fed. R. Civ. P. 56(c); Saldana,
260 F.3d at 231.
3
The District Court did not err in limiting Etkins’ Eighth Amendment claim to the
allegations he made in his deposition. See Martin v. Merrell Dow Pharmaceuticals, Inc.,
851 F.2d 703, 706 (3d Cir. 1988) (upholding a district court’s use on summary judgment
of sworn deposition testimony in the face of contradictory allegations elsewhere). As the
District Court explained, that claim—as it was framed in Etkins’ own sworn testimony—
lacked merit. To state a claim for delayed medical care, Etkins needed to allege that
Defendant Asp was deliberately indifferent to his serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999). Here, Defendant Asp knew of Etkins’ chronic pain, and, according to Etkins, he
learned on May 5 that Etkins had not been reissued his pain medication. However, as
Etkins himself conceded, Defendant Asp had no control over reissuing his medication.
See Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997) (requiring that a plaintiff
produce sufficient evidence of causation on an Eighth Amendment claim). The prison
pharmacy was responsible for that. There is no evidence in the summary judgment
record suggesting that Defendant Asp shirked any of his own responsibilities in the
provision of Etkins’ medication. The undisputed record is that he prescribed the pain
medication in a timely manner; he prescribed Etkins Sulindac tablets when he initially
examined Etkins, and he prescribed another round of Sulindac when the confiscated
prescription expired on May 12. Therefore, no genuine issue of material fact existed as
4
to Etkins’ claim that Defendant Asp was deliberately indifferent to his serious medical
needs. See Fed. R. Civ. P. 56(c).
For the reasons given, the District Court properly dismissed Etkins’ complaint.2
Accordingly, we will summarily affirm the judgment of the District Court. Murray v.
Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R.; I.O.P.
10.6.
2
The District Court did not err in denying Etkins leave to file a motion to add Violette
Ganoe as an additional defendant, as United States Public Health Service members acting
within the scope of employment are immune from Bivens claims. See Hui v. Castaneda,
130 S. Ct. 1845, 1850-51 (2010). Nor did the District Court err in denying Etkins’
motion to amend his complaint to re-state his claims against original Defendants Glenn
and Smith.
5