                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-2007

Veanus v. Northampton Cty
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2233




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"Veanus v. Northampton Cty" (2007). 2007 Decisions. Paper 1016.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1016


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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 06-2233
                                 ________________

                                JOHN F. VEANUS,

                                                Appellant

                                           v.

 NORTHAMPTON COUNTY PRISON; TODD BUZKIRK, Warden; SCOTT HOKE,
 Deputy Warden, All Sub Staff Inclusive; HEAD OF NURSING; ENTIRE NURSING
  STAFF, In their individual and official capacity; PRIME CARE MEDICAL, INC.

                      ____________________________________

                 On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                         (E.D. Pa. Civ. No. 03-cv-00024)
                  District Judge: Honorable Timothy J. Savage
                 _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 25, 2007

            Before:    FISHER, ALDISERT AND WEIS, Circuit Judges


                                (Filed: June 1, 2007 )


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM
       John F. Veanus appeals pro se from the District Court’s entry of summary

judgment in favor of the Northampton County Prison, Warden Todd Buzkirk and Deputy

Warden Scott Hoke (the “prison defendants”) and from its entry of judgment on a jury

verdict in favor of Prime Care Medical, Inc. (“Prime Care”). For the following reasons,

we will affirm the grant of summary judgment and dismiss the appeal to the extent that it

is taken from the judgment on the jury verdict.1

                                             I.

       Veanus was an inmate at the Northampton County Prison. He filed suit pro se

under 42 U.S.C. § 1983 against the prison defendants, alleging that they were deliberately

indifferent to his medical needs by assigning him to a top bunk (from which he fell,

injuring his head, face and neck) and by providing him with pain medication to which he

is allergic. The prison defendants filed a third-party complaint against Prime Care, which

contracts with Northampton County to provide medical services at the prison. The

District Court appointed counsel for Veanus, and he amended his complaint to assert a

claim directly against Prime Care.2



   1
      We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s grant of summary judgment. See Caprio v. Bell Atl.
Sickness and Accident Plan, 374 F.3d 217, 220 (3d Cir. 2004).
   2
        Veanus also originally asserted several other claims against the prison defendants.
In his summary judgment brief, Veanus addressed only his § 1983 bunk assignment and
medication claims (the latter of which he made clear he was pursuing only against Prime
Care). On appeal, he has not raised any issues concerning his other claims, so any such
issues are waived. See Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006).

                                             2
       All defendants moved for summary judgment. The District Court granted the

prison defendants’ motion, but denied Prime Care’s motion. Veanus’s claim against

Prime Care proceeded to a jury, which found in favor of Prime Care, and the District

Court entered judgment on the verdict.

                                             II.

               A.    Summary Judgment in Favor of the Prison Defendants

       The District Court granted summary judgment without explaining its grounds or

rationale. Because such an omission can hamper our review, we have directed district

courts to explain their reasoning when granting summary judgment, and have remanded

in appropriate cases when district courts have failed to do so. See Caprio, 374 F.3d at

220; Vadino v. A. Valey Eng’rs, 903 F.2d 253, 259 (3d Cir. 1990). Nevertheless, we may

affirm the grant of summary judgment on any ground that appears in the record. See

Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 2000). We are satisfied that we can

adequately review the relevant issue here. See Vadino, 903 F.3d at 260-61.

       Veanus conceded below that the individual defendants are not individually liable

under § 1983 and limited his argument to his bunk-assignment claim against the prison.

On appeal, he also limits his argument to that claim, arguing only that the District Court

should not have granted summary judgment because the prison has authority over

prisoner housing decisions. The prison argues that it was entitled to summary judgment

because Veanus produced no evidence that his injuries were caused by a policy or custom



                                             3
as required for the imposition of § 1983 liability on a municipality under Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978).

       We agree with the prison. Veanus argued below that the prison had a custom of

ignoring inmates’ requests for lower bunk assignments. The only evidence he advanced,

however, was the deposition testimony of Deputy Warden Hoke that the prison had no

standardized policy for handling bunk assignment requests and assumed (without

confirming) that Prime Care would adequately handle any such requests it received. The

prison’s lack of a policy regarding bunk assignments could give rise to § 1983 liability

only if Veanus showed that the lack of a policy resulted from the prison’s “deliberate

indifference” to the serious medical needs of those who require lower bunk assignments.

See Beck v. City of Pittsburgh, 89 F.3d 966, 971-72 (3d Cir. 1996). “To survive

summary judgment,” Veanus was required to present evidence that the need for such a

policy “was so obvious and so likely to lead to the violation of constitutional rights that

the policymaker’s failure to respond amounts to deliberate indifference.” Brown v.

Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001). Veanus presented no such evidence

– no evidence, for example, that any other prisoner had been denied a medically-required

bunk assignment, had fallen from a top bunk, or had ever complained about this issue.

See Beck, 89 F.3d at 972. Accordingly, the prison was entitled to summary judgment.

                   B.   Judgment on the Verdict in Favor of Prime Care

       Veanus raises several arguments regarding alleged misconduct during trial, only



                                              4
two of which might conceivably state grounds for appellate relief: that the District Court

allowed a juror to sleep through trial and that the District Court allowed Veanus to be

questioned while not under oath.3 We require portions of the transcript or other

permissible material to supplement the record not only to assess the merits of these issues,

but to determine whether Veanus preserved them for appellate review.

       We denied Veanus’s motion for transcripts at government expense because Veanus

had not demonstrated that he required the transcript for an issue that raised a substantial

question. See 28 U.S.C. § 753(f). Veanus’s appellate brief does not suggest otherwise.

Accordingly, we have no choice but to dismiss this portion of the appeal.

       For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment, and the judgment in favor of Prime Care is affirmed.




   3
       Veanus’s remaining arguments either are inapposite in the civil context (such as
ineffective assistance of counsel), or potentially state grounds for relief only in the
District Court under Rule 60 of the Federal Rules of Civil Procedure (such as the alleged
perjury of a Prime Care witness).

                                              5
