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


4-22-2009

Jesus Diaz v. Thomas Carroll
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3665




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BLD-145                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 08-3665
                                  ___________

                                  JESUS DIAZ,
                                          Appellant

                                        v.

                      WARDEN THOMAS CARROLL;
                CORRECTIONAL MEDICAL SERVICES INC.;
                      CPL MERSON; LEE ANN DUNN;
                DEBORAH RODWELLER; CINDY ATALLIAN
                  ____________________________________

                 On Appeal from the United States District Court
                           for the District of Delaware
                          (D.C. Civil No. 06-cv-00550)
                  District Judge: Honorable Sue. L. Robinson
                  ____________________________________

      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
                                 March 26, 2009

           Before: McKEE, FISHER and CHAGARES, Circuit Judges

                             (Filed: April 22, 2009)
                                   _________

                                   OPINION
                                   _________

PER CURIAM
       Jesus Diaz, an inmate at James T. Vaughn Correctional Center, appeals pro se

from orders by the District Court granting the defendants’ motions to dismiss and for

summary judgment. For substantially the same reasons provided by the District Court, we

will affirm.

                                             I.

       On September 5, 2006, Diaz filed a complaint under 42 U.S.C. §1983, alleging a

violation of his Eighth and Fourteenth Amendment rights because defendants had failed

to provide adequate medical care for his eye condition, as well as related state law claims.

He also alleged that the prison’s grievance system was inadequate. According to Diaz,

his medical condition began on August 29, 2003, when he first noticed a growth forming

on his left eye. In support of his claims, Diaz attached several exhibits. He attached a

sick call request with a response on September 3, 2003 stating that Diaz was referred to

sick call. Diaz included a grievance he filed two years later on September 6, 2005, where

he claimed that he had still not been seen by a doctor. This grievance included an

informal resolution signed by Dunn, which notes that Diaz would begin receiving

treatment. On December 5, 2005, Diaz submitted another sick call request stating that his

eye continued to bother him and that he was trying not to lose his sight. On January 3,

2006, Diaz received a response which noted that he had a consultation written for the eye

doctor on December 27, 2005. Diaz also attached a January 19, 2006 letter from his

counselor, Atallian, who informed him that medical staff were aware of his problems and



                                             2
that details for his proposed care were being worked out. Finally, Diaz included a

grievance from April 13, 2006, in which he alleged that his previous grievances and sick

calls had been ignored.

       On December 14, 2006, the District Court issued an order dismissing Diaz’s

claims regarding the prison’s grievance system as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B) and § 1915A(b)(1). The court also dismissed Diaz’s state law medical

malpractice claims for failure to include an affidavit of merit signed by an expert, as

required by 18 Del. C. § 6853(a)(1).

       Defendants Dunn and Rodweller moved the District Court to dismiss for failure to

state a claim upon which relief could be granted in March 2007. The court treated this as

a motion for summary judgment, and granted it after deciding that there was no legal

basis to conclude that either Dunn or Rodweller were deliberately indifferent to Diaz’s

serious medical needs. Correctional Medical Services, Inc. (“CMS”) also filed a motion

to dismiss; however, the court found that Diaz had made sufficient allegations to deny

CMS’s motion to dismiss.1




       1
        Both Dunn and Rodweller and CMS alleged that Diaz failed to properly exhaust
his administrative remedies pursuant to 42 U.S.C. §1997e(a). Defendants argued for
dismissal because Diaz did not “appeal” any grievances regarding his medical care. The
District Court noted that Diaz had alleged he had filed multiple sick call slips and
grievances and that it is unclear how one appeals from an absolute failure to respond.
The court thus denied this portion of the motion to dismiss.

                                              3
       Defendants Carroll, Merson, and Atallian, collectively as “state defendants,” and

defendant CMS both filed motions for summary judgment in January and February 2008.

Diaz filed a motion to amend his complaint to add three new defendants. The District

Court granted defendants’ motions for summary judgment and denied Diaz’s motion to

amend. With respect to the state defendants Carroll, Merson, and Atallian, the court

concluded that Diaz cannot establish liability on the basis of respondeat superior because

each lacked personal involvement.

       With respect to CMS, the court concluded that Diaz failed to make a sufficient

showing as to the necessary elements of his claim for deliberate indifference to a serious

medical need. Specifically, the court noted that Diaz admitted to being seen by numerous

nurses in 2004 and 2005 regarding his eye complaints. CMS also responded to Diaz’s

grievances and sick call slips, in particular in December 2005 when Diaz was sent to an

eye doctor for a consultation. Although there was a three-month delay from the

December 2005 sick call request, Diaz received medical treatment in early March 2006.

When Diaz filed a grievance regarding his treatment in April 2006, he received a prompt

response. Another grievance in May 2006 resulted in a treatment plan, even though Diaz

did not agree with it. Finally, the court determined that an ophthalmologist, Dr.

Markowitz, provided medical care in May and July 2006 and performed a surgical

procedure on Diaz’s eyes in October 2006. Diaz continued to receive follow-up care, but

alleged that he was not satisfied with the treatment provided by Dr. Markowitz. The



                                             4
District Court thus determined that Diaz failed to make a sufficient showing to hold CMS

liable for deliberate indifference on a theory of respondeat superior. The court found that

Diaz did not receive medical care during a three-month period at most, but concluded that

this constituted negligence.

       Accordingly, the District Court granted CMS’s motion for summary judgment

regarding Diaz’s medical claims. The court also held that Diaz’s motion to amend was

untimely and that amendment would be futile. The District Court denied Diaz’s

subsequent motion to alter the judgment.

       We have jurisdiction under 28 U.S.C. § 1291. Because Diaz is proceeding in

forma pauperis in this appeal, we must dismiss the appeal under 28 U.S.C. § 1915

(e)(2)(B) if it is legally frivolous. We may summarily affirm if Diaz’s appeal presents no

substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.

                                             II.

       Dunn and Rodweller brought a motion to dismiss, but referred to matters outside

the pleadings, and thus, the District Court treated their motion as one for summary

judgment under Rule 56. See Fed. R. Civ. P. 12(d). A district court must provide notice

of its intention to convert a motion to dismiss and allow a plaintiff a “reasonable

opportunity to present all material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

The failure to give adequate notice does not, however, require automatic reversal; it may

be excused if the failure was a “harmless error.” Rose v. Bartle, 871 F.2d 331, 342 (3d



                                              5
Cir. 1989). We exercise plenary review and may affirm if, on the basis of the complaint

filed, there was no set of facts which could be proven to establish defendants’ liability.

Id.

       To show a violation under the Eighth Amendment, Diaz must allege “(1) that the

defendants were deliberately indifferent to their medical needs and (2) that those needs

were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Diaz must allege some basis for concluding that

prison officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S.

825, 835 (1994). Deliberate indifference requires that prison officials know of an

excessive risk to an inmate’s health or safety and affirmatively disregard that risk. Id. at

837-838.

       Assuming Diaz alleged a serious medical need, we agree with the District Court

that he did not allege that Dunn or Rodweller were deliberately indifferent to his medical

condition. Farmer, 511 U.S. at 837-838. As the District Court noted, Dunn and

Rodweller responded promptly to Diaz’s grievances and provided a referral for treatment.

Dunn responded to his medical grievances and entered into an “informal resolution” with

Diaz that set forth a medical treatment plan. Diaz also does not have a claim against

Rodweller based on his April 2006 grievance because he was seen by a doctor the

following month. Thus, Diaz’s claims against Dunn and Rodweller were properly

dismissed because he cannot state a claim upon which relief could be granted under the



                                              6
Eighth Amendment. Accordingly, we conclude that failure to provide notice to Diaz was

harmless error. Rose, 871 F.2d at 324.




                                             III.

       We exercise plenary review over the district court’s order granting the motion for

summary judgment. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006).

Summary judgment is proper if there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue of

material fact exists only if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

       Summary judgment was properly entered in favor of defendants because Diaz

failed to provide any evidence to demonstrate that there was a genuine issue of material

fact. Diaz did not provide any evidence regarding the seriousness of his eye condition,

such as any medical records or evidence indicating his loss of sight. Moreover, even if he

had, Diaz failed to set forth any evidence indicating that defendants were deliberately

indifferent to this medical need. With respect to defendant Carroll, Diaz has not shown

that Carroll had actual knowledge that prison doctors were mistreating him. See Durmer

v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.

2004). Similarly, Merson cannot be held liable because Diaz has not provided any



                                              7
evidence demonstrating deliberate indifference beyond the unsupported assertions

contained in his complaint. See Connors v. Fawn Mining Corp., 30 F.3d. 483, 489 (3d

Cir. 1994). As for Atallian, Diaz conceded in his deposition that she did not violate his

constitutional rights. Thus, the District Court properly granted summary judgment with

respect to these defendants.

       Diaz also failed to show that CMS was deliberately indifferent. In his opposition

to summary judgment, Diaz relied on an examination that took place on March 28, 2008,

where the doctor stated that Diaz “needs surgery.” Not only does this one doctor’s

opinion go beyond the scope of the time period alleged in his complaint, but it is

insufficient to support Diaz’s claim that CMS was deliberately indifferent. Spruill, 372

F.3d at 235 (“mere disagreement as to the proper medical treatment” is insufficient to

state a constitutional violation). Moreover, the record indicates that despite Diaz’s

allegations that he was untreated for three years, during his deposition he acknowledged

being seen by many nurses in 2004 and 2005. The record also establishes that he received

a surgical procedure and follow-up care for his eye condition. Diaz has not provided

evidence that would allow a reasonable jury to conclude otherwise. Thus, Diaz did not

meet his burden at summary judgment for his claim against CMS.

                                            IV.

       Finally, we consider whether the District Court properly denied Diaz’s motions for

counsel. Although Diaz contended that his eye condition significantly compromised his



                                             8
vision, his complaint and other filings in the District Court reflect that he was capable of

presenting his case. Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993); Smith-Bey v.

Petsock, 741 F.2d 22, 26 (3d Cir. 1984). Accordingly, the District Court did not abuse its

discretion in denying Diaz’s motions.

                                             V.

       As Diaz’s appeal presents no substantial question, we will summarily affirm. The

motion for appointment of counsel is denied.




                                              9
