                                                           NOT PRECEDENTIAL
CLD-243
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 11-1898
                                  ___________

                               DANIEL WOODS,
                                                   Appellant

                                        v.

FIRST CORRECTIONAL MEDICAL INC.; CORRECTIONAL MEDICAL SERVICES
     INC.; L.P.N. LISA SUGAR; SHARI CAIN; R.N. JAMILLA MCKENZIE;
    NURSE VERIA MURPHY; RICHARD OKONIBO; JOHN DOE; JANE DOE;
   RONNIE MOORE, Health Services Administrator; INVESTIGATOR BRENDA
LUCAS; JAMES T. VAUGHN CORRECTIONAL CENTER; DR. NIEZ; JOHN/JANE
              DOE DIRECTOR OF MEDICAL AT DCC 2007-2008
                   ____________________________________

                  On Appeal from the United States District Court
                            for the District of Delaware
                          (D.C. Civil No. 08-cv-00397)
                   District Judge: Honorable Leonard P. Stark
                   ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
   and for Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 21, 2011
            Before: RENDELL, FUENTES AND SMITH, Circuit Judges

                         (Opinion filed August 18, 2011)
                                   _________

                                    OPINION
                                    _________

PER CURIAM
      Daniel Woods, a Delaware state prisoner incarcerated in the James T. Vaughn

Correctional Center (“JTVCC”), appeals pro se from the order of the United States

District Court for the District of Delaware granting Defendants’ motion for summary

judgment. For the following reasons, we will summarily affirm.

I.

      We write for the parties’ benefit and recite only the facts essential to our

disposition. In May 2007, after being diagnosed with Hepatitis C, Woods was referred to

Dr. Lawrence McDonald, a former employee of Correctional Medical Services, Inc.’s

(“CMS”),1 to initiate Interferon protocol to treat Woods’ condition. Treatment consisted

of Pegasys and Ribavirin injections. Dr. McDonald also wrote orders for Woods to

receive nutritional supplements throughout the course of his treatment.

      Woods alleged that, despite Dr. McDonald’s directives, he was denied proper

treatment by several CMS nurses. Specifically, he claimed that they: 1) incorrectly

administered his injections; 2) changed physician orders so that Woods did not receive

his prescribed nutritional supplements; and 3) refused treatment, including necessary

medication, on several occasions. In June 2008, Woods filed a complaint in the District

Court pursuant to 42 U.S.C. § 1983, alleging that the Defendants acted with deliberate

indifference to his serious medical needs in violation of the Eighth Amendment. Woods

sought money damages.


      1
        CMS was the medical services contract provider for the Delaware Department of
      Correction from July 2005 through June 2010. Dr. McDonald was not named in the
      action.



                                            2
       Several of the Defendants filed motions to dismiss, which the District Court

granted because they were either immune from suit or had not been timely served with a

copy of the complaint. At the close of discovery, the remaining Defendants, which

included CMS, Lisa Sugar, Robert Okinobo, Shari Cain, and Jamilla Mickenzie

(collectively “the Medical Defendants”), filed a motion for summary judgment. They

also moved to strike a supplemental letter that Woods filed with the Court regarding a

2006 investigation of five Delaware prison facilities. Woods filed a cross-motion for

summary judgment. After reviewing the submissions, the District Court granted the

Medical Defendants’ motions for summary judgment and to strike, and denied Woods’s

motion for summary judgment. Woods timely appealed.

II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s decision to grant a motion to dismiss de novo. See Dique v. N.J.

State Police, 603 F.3d 181, 188 (3d Cir. 2010). We also exercise plenary review over the

District Court’s entry of summary judgment, viewing the underlying facts and all

reasonable inferences therefrom in the light most favorable to the non-moving party. See

Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). After reviewing the record on

appeal, we conclude that the District Court committed no reversible error in disposing of

Woods’ claims.

III.

       As an initial matter, we conclude that the District Court correctly dismissed

Defendants Ronnie Moore, Veria Murphy, Dr. Niez, John Doe, Jane Doe, John/Jane Doe


                                           3
Director for Medical Services at DCC 2007 2008, and First Correctional Medical

Services from the action because Woods failed to timely identify and/or serve those

defendants with a copy of the complaint.

       Defendants JVCC and Brenda Lucas were also properly dismissed from the action

because Woods failed to state viable claims against them. As to JVCC, under the

Eleventh Amendment a Delaware state prison is immune from suit in federal court. See

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).

While states can waive their Eleventh Amendment immunity, see Koslow v.

Commonwealth of Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002), Delaware has not

done so, see Green v. Howard R. Young Corr. Inst., 229 F.R.D. 99, 102 (D. Del. 2005)

(Jordan, J.). Accordingly, we agree that Woods’ section 1983 claims against the JVCC

for monetary damages are barred.

       With regard to Brenda Lucas, Woods alleged that she failed to act upon several of

the administrative grievances that he filed. Lucas was identified in the complaint as an

investigator in several of Woods’ grievances. We agree with the District Court that

because a prisoner has no free-standing constitutional right to an effective grievance

process, see Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991), Woods cannot maintain a

constitutional claim against Lucas based upon his perception that she ignored and/or

failed to properly investigate his grievances.

       Eighth Amendment Claims

       The Eighth Amendment, through its prohibition on cruel and unusual punishment,

mandates that prison officials not act with deliberate indifference to a prisoner’s serious


                                                 4
medical needs by denying or delaying medical care. Estelle v. Gamble, 429 U.S. 97, 104

(1976). In order to sustain a constitutional claim, a prisoner must make: 1) an “objective”

showing that the prisoner’s medical needs were sufficiently serious; and 2) a “subjective”

showing that the prison official acted with a sufficiently culpable state of mind.

Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). “To act with deliberate

indifference to serious medical needs is to recklessly disregard a substantial risk of

serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).

       Nutritional Supplements

       Woods alleged that Defendant Shari Cain unilaterally changed Dr. McDonald’s

orders regarding his dietary supplements. The record reflects that, at various times,

Woods was prescribed either Boost or Resource 2.0. Woods claimed that around August

2007, Cain unilaterally changed Dr. McDonald’s orders of two cans of Boost per day to

one can per day of Resource 2.0. However, Dr. McDonald is unequivocal that when the

medical department switched supplements from Boost to Resource 2.0, he ordered that

Woods be given only one can of Resource 2.0 per day. Further, the record reflects that,

on August 1, 2007, Cain entered a “clarification note” on Woods’ chart stating that Dr.

McDonald had changed Woods’ order. Woods presented no evidence demonstrating that

Cain changed Dr. McDonald’s order and thus acted with deliberate indifference to his

medical needs. Therefore, we will affirm the District Court’s grant of summary judgment

on this claim.

       Failure to Treat




                                            5
       Woods also alleged that Defendant Lisa Sugar refused to treat and assess his

conditions at various times. Specifically, he claimed that she did not adequately respond

to several of his sick call complaints. As an initial matter, Woods presented no evidence

to suggest that Sugar was aware of all of his complaints. In any event, the record reflects

that Sugar provided Woods with treatment, both through regularly scheduled

appointments and when she became apprised of Woods’ written requests for treatment.

On one occasion, when Sugar attempted to treat Woods in his unit, but was unable to

because he was in the shower, Sugar ordered another nurse to examine him, and later

wrote Woods a prescription for his condition. Based on the record, we agree with the

District Court that a reasonable jury could not find that Sugar acted with deliberate

indifference to Woods’ medical needs.

       Injections

       Woods claimed that the Medical Defendants used incorrect needles to administer

his injections, and that the syringes could not hold the proper dose of the medication.

However, Woods does not dispute that he received sufficient doses of the medication, nor

does he claim that his Hepatitis C treatment was unsuccessful.2 In addition, there is no

record evidence to support his claim that incorrect syringes were used during the course

of his treatment. Therefore, a reasonable jury could not find for Woods on this issue.

       Woods also claimed that because the Medical Defendants failed to rotate the site

of his injections, he experienced nausea, sores, jaundice, dizziness, weakness, nose

       2
        Dr. McDonald discharged Woods from the Hepatitis C Infectious Disease Clinic in July
       2009 because Woods’ viral load was undetectable in his blood work.



                                             6
bleeds, and infections.     With the exception of the nose bleeds and infections, the

conditions that Woods claimed to have suffered are known side-effects of Interferon

treatment. Woods acknowledged at his deposition that Dr. McDonald’s informed him

about those possible side-effects.       And, although Dr. McDonald was not able to

determine the cause of Woods’ nose-bleeds, he did not attribute them to the alleged

failure to rotate the injection site.3 Woods did not present any information contradicting

Dr. McDonald’s medical opinion. Moreover, the record reflects that, when Woods raised

the issue that the injection site was not rotated with sufficient frequency, steps were taken

to remedy the problem.

       Accordingly, we agree with the District Court that there is insufficient evidence

upon which a jury could conclude that the Medical Defendants disregarded the risk to his

safety during the administration of his injections.

       State Law Claim

       Lastly, we conclude that the District Court properly granted Defendants’ motion

for summary judgment as to Woods’ state law claim of medical negligence. Under

Delaware state law, when a party alleges medical negligence, that party is required to

produce an affidavit of merit, signed by an expert witness, when the complaint is filed.

See 18 Del. C. § 6853. The record reflects that Woods filed no such affidavit, nor did he

timely move for an extension to do so. Id.


       3
         Dr. McDonald reached a similar conclusion regarding Woods’ infection, which Woods
       does not allege occurred at the site of any of his injections. Although the record reflects
       that Woods was prescribed antibiotics at one point, it was because he had been diagnosed
       with sinusitis.

                                                7
       For all of these reasons, we conclude that the District Court properly entered

summary judgment in favor of the Medical Defendants. We also conclude that the

District Court properly granted the Medical Defendants’ motion to strike. As mentioned,

Woods asked the Court to consider a letter regarding the investigation of five Delaware

prison facilities. The investigation found substantial civil rights violations at several of

those facilities and resulted in the entry of an agreement between the Department of

Justice and State of Delaware. However, the agreement clearly states that it may not be

used as evidence of liability in any other legal proceeding. Therefore, the District Court

correctly declined to consider it as evidence in Woods’ case.4

       As Woods’ appeal presents no substantial question, we will summarily affirm.

See Third Cir. LAR 27.4; I.O.P. 10.6. Woods’ “Motion for Appointment of Counsel and

Request to Reverse and Remand the Lower Court’s Ruling” is denied. See Tabron, 6

F.3d at 155-56. Woods’ motion for default is also denied.




       4
         To the extent that Woods also argues that the District Court improperly denied his
       requests to appoint counsel, because his claims were neither complex nor meritorious, the
       District Court did not abuse its discretion in denying his requests. See Tabron v. Grace, 6
       F.3d 147, 155-56 (3d Cir. 1993).

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