                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-5-2006

Parker v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5281




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                                                                       BPS-246
                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-5281
                                 ______________

                          NATHANIEL PARKER, SR.,
                                      Appellant

                                        v.

    UNITED STATES OF AMERICA; ATTORNEY GENERAL OF THE UNITED
 STATES; KATHLEEN HAWK, Director of the Fed. Bureau of Prisons; JOHN NASH,
   Warden of FCI-Schuylkill; D. L. STINE, Associate Warden; DENEEN P. SWEET,
 Associate Warden; A. MATEVOUSIAN, Captain of FCI-Schuylkill; JANE OR JOHN
   DOE, BOP Health Service Medical Director; CHARLESTON IWUAGWU, Health
    Services Clinical Director Administrator of FCI-Schuylkill; SANDRA VARGAS,
   Assistant Health Services Adminst.; CEDRIC M. ROBINSON, IOP/ID Coordinator;
     DAVID M. STEFFAN, Physician Assistant; MAYRSE WAMBACH, Physician
 Assistant; BRIGIDA ZABALA, Physician Assistant; ISMAIL M. RAHIMI, Physician
 Assistant; JANE AND JOHN DOES, Physician Assistant; JOHN DOES, Prison Guards
of FCI-Schuylkill; AMY KINDER, 4-A Unit Manager; COUNSELOR-BOP D. SHIRES,
             4-A Unit Counselor, All in their individual and official capacities
                                      ___________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civil No. 04-cv-0550)
                    District Judge: Honorable Edwin M. Kosik
                                  ____________

         Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 15, 2006

             Before: RENDELL, AMBRO and ROTH, Circuit Judges.

                            (Filed: September 5, 2006)
                                      _____________

                                OPINION OF THE COURT
                                   _______________

PER CURIAM

       Nathaniel Parker appeals from two orders of United States District Court for the

Middle District of Pennsylvania granting summary judgment in favor of the defendants in

this pro se civil rights action. For the reasons that follow, we will summarily affirm.

                                             I.

       While incarcerated at FCI Schuylkill, Parker filed an action pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

complaining about the use of over-tight handcuffs, the denial of adequate medical

treatment for sickle cell anemia, and retaliation – via assignment to an upper bunk in a

dorm with prisoners who smoked – for complaining about the allegedly inadequate

medical care. He named as defendants numerous Bureau of Prisons (“BOP”) officials

and employees.1 Parker sought injunctive relief and compensatory and punitive damages.


       1
        Parker also named as defendants the United States of America, former Attorney
General John Ashcroft, Kathleen Hawk, the Director of the BOP, John Nash, the Warden
at FCI Schuylkill, and several John Doe prison employees. For essentially the reasons
provided by the District Court, we agree that these defendants were properly dismissed.
The United States is protected from suit by sovereign immunity, and there is no explicit
waiver in this case. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Despite ample
opportunity to do so, the John Doe defendants were never identified and served with the
complaint. Parker has not offered any reason why he could not have identified and
properly served these defendants, who are physician assistants and prison guards at FCI
Schuylkill. With respect to Attorney General Ashcroft, BOP Director Hawk, and Warden
Nash, there is no evidence that any of them played a role in the incidents underlying

                                             2
       The defendants filed a motion for summary judgment. By order entered February

23, 2005, the District Court granted the motion as to all defendants with the exception of

A. Matevousian, the prison employee who allegedly handcuffed Parker too tightly. In

particular, the District Court concluded that prison medical records “belied” Parker’s

contention that the defendants were deliberately indifferent to a serious medical need.

Summary judgment was likewise held to be warranted with respect to Parker’s retaliation

claims insofar as there was no evidence that his bed and housing assignment were

changed because of his medical complaints. The District Court also construed Parker’s

complaint as raising an excessive force claim against Matevousian.2 Because the

defendants had not read Parker’s complaint as raising such a claim, the District Court

provided them additional time to file dispositive motions. Parker filed a motion for

reconsideration of the District Court’s order. See Fed. R. Civ. P. 59(e). The defendants

moved for summary judgment, alleging that Parker had not administratively exhausted his

excessive force claim. On October 13, 2005, the District Court denied the motion for

reconsideration and granted Matevousian’s motion for summary judgment. Parker timely




Parker’s complaint. Because liability under Bivens v. Six Unknown Named Agents of
Fed. Bur. of Narcotics, 403 U.S. 388 (1971), may not based on the doctrine of respondeat
superior, these defendants were properly dismissed.
       2
        Although Parker’s complaint alluded to an excessive force claim, he did not
specifically refer to such a claim until opposing the defendants’ motion for summary
judgment.

                                             3
appealed.3

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over an

order granting a motion for summary judgment. See Gallo v. City of Philadelphia, 161

F.3d 217, 221 (3d Cir. 1998). A grant of summary judgment will be affirmed if our

review reveals that “there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review the

facts in the light most favorable to the party against whom summary judgment was

entered. See Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d

144, 146 (3d Cir. 1993).

                                            III.

       Parker claimed that on September 11, 2002, defendant Matevousian, who was

escorting Parker to the Special Housing Unit (“SHU”), handcuffed him too tightly,

cutting his right wrist and causing bleeding. Under the Prison Litigation Reform Act

(“PLRA”), exhaustion of administrative remedies is required for all actions concerning

prison conditions brought under federal law. 42 U.S.C. § 1997e(a); Spruill v. Gillis,

372 F.3d 218, 227 (3d Cir. 2004). In Spruill, we held that the PLRA required “proper”

exhaustion, meaning that the inmate must follow the procedural requirements of the


       3
        Although Parker’s notice of appeal states that he is appealing only the order of
October 13, 2005, this Court also has jurisdiction to review the District Court’s February
23, 2005 order granting summary judgment as to all but one defendant. See Williams v.
Guzzardi, 875 F.2d 46 (3d Cir. 1989)

                                             4
prison grievance system. Spruill, 372 F.3d at 228, 231. If the prisoner fails to follow the

procedural requirements, then his claims are procedurally defaulted. The BOP has

established an administrative remedy procedure, set forth at 28 C.F.R. §§ 542 et seq. A

review of the record indicates that Parker has made no attempt to avail himself of this

administrative process with respect to the alleged wrist injury caused by tight handcuffs.

Thus, his excessive force claim was properly dismissed for failure to exhaust available

administrative remedies.

                                            IV.

       Parker also claimed that prison employees inadequately treated him for a pain

episode related to sickle cell anemia, which began on September 22, 2002, while he was

confined in the SHU. The Eighth Amendment requires prison officials to provide basic

medical treatment to inmates. Estelle v. Gamble, 429 U.S. 97, 103 (1976). In order to

show a violation of the Eighth Amendment, a prisoner must show that prison officials

were deliberately indifferent to the prisoner’s serious medical needs. Id. at 104. Because

we can assume for purposes of our analysis that Parker’s sickle cell anemia presented an

objectively serious medical condition, we focus upon whether the conduct of the prison

employees amounted to deliberate indifference. We have found deliberate indifference

where a prison official: 1) knows of a prisoner’s need for medical treatment but

intentionally refuses to provide it; 2) delays necessary medical treatment for non-medical

reasons; or 3) prevents a prisoner from receiving needed or recommended treatment. See

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Non-physician defendants generally

                                             5
are not deliberately indifferent where they do not respond to the medical complaints of a

prisoner who is being treated by a prison doctor. See Durmer v. O’Carroll, 991 F.2d 64,

69 (3d Cir. 1993).

       As thoroughly discussed in the District Court’s opinion, affidavits submitted by the

defendants show that Parker received treatment for his ailment. In response to Parker’s

initial complaints of discomfort, a physician’s assistant examined him and directed him to

increase his fluids and to take ibuprofen, folic acid, and multivitamins. The next day,

Parker was examined by another physician’s assistant who prescribed Vistaril, an anti-

anxiety medication that may also increase the effects of pain medications. Although

Parker alleged that his repeated requests for medical assistance were ignored while he

was in the SHU, he did admit that he was seen by physician’s assistants and was provided

with various medications. Furthermore, Parker continued to receive treatment from a

doctor following his release from the SHU. Although Parker may have preferred a

different course of treatment, his preference does not establish a cause of action. See

Inmates of Allegheny Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (courts will

“disavow any attempt to second-guess the propriety or adequacy of a particular course of

treatment . . . [which] remains a question of sound professional judgment”) (citations

omitted); see also White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (doctor’s choice

of one drug over another is not actionable). Because Parker pointed to no evidence

supporting the contention that prison employees knew of and disregarded an excessive

risk to his health, see Farmer v. Brennan, 511 U.S. 825, 837 (1994) (defining deliberate


                                             6
indifference), the District Court properly granted the defendants’ motion for summary

judgment on this claim.

                                             V.

       Finally, Parker claimed that upon being transferred from the SHU to the general

prison population on October 3, 2002, he was assigned to an upper bunk in an area where

prisoners smoked in retaliation for complaining about inadequate medical care. We

conclude that this claim falters under the test we reiterated in Rauser v. Horn, 241 F.3d

330 (3d Cir. 2001). Parker failed to allege any causal connection between his medical

treatment complaints and determinations regarding his housing conditions. The record

shows that Parker, who was limited to the least preferred housing status, was assigned to

a non-smoking area upon his return to the general population; he received an upper bunk

because it was the only one available. See id. 241 F.3d at 334 (holding that even if “a

prisoner demonstrates that his exercise of a constitutional right was a substantial or

motivating factor in the challenged decision, the prison officials may still prevail by

proving that they would have made the same decision absent the protected conduct for

reasons reasonably related to a legitimate penological interest”). In support of his

retaliation claim, Parker submitted BOP forms authorizing a lower bunk assignment.

Notably, however, those forms pertain to periods after Parker was released from the SHU.

The District Court thus properly granted summary judgment on Parker’s retaliation claim.

                                             VI.

       For the foregoing reasons, we conclude the appeal presents no substantial question.


                                              7
Accordingly, we will summarily affirm. See I.O.P. 10.6.




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