                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

Johnson v. Rush
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4243




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4243
                                      ___________

                                    MEL JOHNSON,
                                            Appellant

                                            v.

                               JOSEPH RUSH, P.A.;
                            MARVA CERULLO, CHCA;
                       SHARON BURKS, Chief Grievance Officer
                         _______________________________

                       Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 06-cv-00627)
                         District Judge: Honorable Yvette Kane
                         _______________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 28, 2009

            Before: RENDELL, FUENTES and NYGAARD, Circuit Judges

                                (Filed: February 3, 2009)
                                      ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

       Mel Johnson, a pro se prisoner currently incarcerated at SCI-Mahanoy in

Frackville, Pennsylvania, appeals from an order of the United States District Court for the
Middle District of Pennsylvania, dismissing his complaint under 42 U.S.C. § 1983 against

Joseph Rush, a physician’s assistant (“P.A.”) at the prison, Maria J. Cerullo, Rush’s

supervisor, and Sharon M. Burks, the grievance officer.

       Johnson alleges that defendants subjected him to cruel and unusual punishment

when Rush allegedly performed a painful rectal examination on Johnson, and Burks

denied Johnson’s grievance in which he alleged sexual abuse by Rush. In particular,

Johnson alleges that he attended sick-call on April 25, 2005, to receive follow-up

treatment for hemorrhoids. Defendant Rush was the P.A. on duty that day. Rush asked

Johnson what ailed him, and Johnson explained his condition. Rush then “insisted” on

performing a rectal exam, allegedly using substantial force. The complaint alleges that

Johnson asked Rush why he was hurting him, and Rush smirked. Johnson alleges that he

felt paralyzed for about a minute. After Johnson filed a grievance against Rush, Rush

allegedly retaliated against Johnson by manipulating the schedule so that he would be the

only P.A. on duty whenever Johnson signed up for sick-call.1 Johnson attempted to see

medical personnel on two occasions while his grievance against Rush was pending. On

both occasions, Rush was the P.A. on duty, and Johnson refused to see him. Rush

instructed Johnson to leave the sick-call area. Cerullo, Rush’s supervisor, did nothing

when informed of Rush’s allegedly improper conduct, and Burks denied Rush’s grievance



  1
    These allegations are contained in Johnson’s prison grievances, which were attached
to Johnson’s complaint. Pursuant to Fed. R. Civ. P. 10(c), allegations contained in
documents attached to his complaint are part of the complaint.

                                             2
relating to the incident. The District Court dismissed Cerullo and Burks pursuant to 28

U.S.C. § 1915(e)(2)(B), but permitted the case to proceed against Rush. Rush

subsequently filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), and the District

Court granted the motion. The District Court neither granted leave to amend nor

explained why amendment would be futile. Johnson appealed.

       We have jurisdiction under 28 U.S.C. § 1291. The District Court properly

dismissed Cerullo and Burks. Section 1983 does not permit respondeat superior liability,

and each defendant must be personally involved in the constitutional violations alleged.

Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Accordingly, defendant

Cerullo cannot be held liable merely as Rush’s supervisor. Burks was also properly

dismissed. An inmate has no constitutional right to a grievance procedure, and Burks’ act

of denying Johnson’s grievance as untimely did not infringe Johnson’s right to petition

the government for redress. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991).

       We disagree, however, with the District Court’s dismissal of Johnson’s claim

against Rush without leave to amend. Johnson alleges that Rush applied significant force

in performing a rectal exam, and that Johnson had a smirk on his face after Johnson

complained of the pain. Johnson’s fear of encountering Rush at sick-call deterred him

from seeking further treatment, thus allegedly leading to a denial of medical care. The

Eighth Amendment proscribes the “unnecessary and wanton infliction of pain.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976). To plead a violation of the Eighth Amendment, a



                                             3
prisoner must allege that prison officials acted with deliberate indifference to a

“substantial risk of serious harm to an inmate.” Farmer v. Brennan, 511 U.S. 825, 828

(1994). To be liable, prison officials must know of and disregard an excessive risk to the

inmate’s health or safety. Id. at 837.

       Before dismissing a prisoner’s civil rights action for failure to state a claim, the

District Court must grant the prisoner leave to amend, or explain why amendment would

be futile. See Phillips v. Allegheny County, 515 F.3d 224, 245-46 (3d Cir. 2008). The

District Court concluded that Johnson had no basis for disputing the propriety of the exam

in light of his condition, and that, therefore, he was neither denied adequate medical care

nor subjected to an improper medical exam. However, the District Court overlooked the

possibility of a prison medical official administering an appropriate exam in an

inappropriate manner. Construing the complaint liberally, Johnson alleges that Rush –

wearing a smirk – knowingly inflicted pain on him during a medical exam, and in

essence, committed an act of sexual abuse. Johnson might have amended his complaint

to plead additional facts regarding Rush’s intent, such as their prior dealings. Therefore,

we conclude that the District Court erred in failing to advise Johnson of his right to

amend his complaint because amendment was not necessarily futile. Phillips, 515 F.3d at




                                              4
246.2   3




        For the foregoing reasons, we will affirm the District Court’s dismissal of

Johnson’s claims against Cerullo and Burks, vacate the dismissal of Johnson’s Eighth

Amendment claim against Rush, and remand for further proceedings consistent with this

opinion.




  2
    Neither Rush nor the District Court addressed Johnson’s allegations that Rush
retaliated against him for filing a grievance regarding the rectal exam. However, we do
not reach the issue of whether Johnson’s complaint states a claim for retaliation because
Johnson failed to raise this issue on appeal.
  3
    Judge Fuentes would conclude that any further amendment to the complaint in this
case would prove futile and that, therefore, the District Court did not abuse its discretion
in dismissing the complaint.


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