                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2008

Coley v. Iwaugwu
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3707




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                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                 No. 07-3707
                                 ___________

                               LEROY COLEY,
                                                  Appellant

                                       vs.

CHARLESTON IWAUGWU, Health Services Administrator; HAROLD SLEVIN, M.D.;
PRADIP PATEL, M.D., Clinical Director; TUSHAR PATEL, Assistant Health Services
Administrator; JOHN NASH, Warden (Retired); CHARLES E. SAMUELS, JR., Warden;
         DURR, Lieutenant, USPHS, Assistant Health Services Administrator

                   ____________________________________

                 On Appeal from the United States District Court
                         for the District of New Jersey
                     (D.C. Civil Action No. 06-cv-03762)
                  District Judge: Honorable Noel L. Hillman
                  ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 24, 2008
       Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

                        Opinion filed: December 17, 2008
                                 ____________

                                  OPINION
                                 ___________




                                       1
PER CURIAM.

              Leroy Coley appeals pro se from the District Court’s order refusing to

reconsider the dismissal of his complaint. For the following reasons, we will affirm.

                                               I.

              Coley, at all relevant times a federal prisoner, filed a complaint in August

2005 against certain Bureau of Prisons personnel accusing them of providing inadequate

medical care in violation of the Eight Amendment. In particular, Coley alleges that

defendants were indifferent to a branchial cyst on the right side of his neck, which he first

complained about in January 2001. Coley’s complaint and exhibits describe a continuing

course of treatment of the cyst over the next five and one-half years. That course of

treatment included some 31 visits with medical professionals, who provided, among other

things, medication, aspiration, laboratory tests, referrals to outside doctors, chest x-rays,

an MRI, a needle biopsy/laryngoscopy and ultrasound. Nevertheless, Coley alleges that

this treatment was inadequate because he experienced certain delays and because the cyst

had yet to be removed as a specialist had recommended.

              The defendants filed a motion to dismiss or, in the alternative, for summary

judgment. Defendants noted that Coley’s cyst ultimately had been removed in January

2007. The District Court granted defendants’ motion by order entered August 8, 2007,




                                               2
and later denied Coley’s timely motion for reconsideration. Coley appeals.1

                                             II.

              The District Court properly construed Coley’s complaint to assert an Eighth

Amendment claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), but concluded that he had failed to state a claim. We

agree.2 Prisoners asserting an Eighth Amendment claim for inadequate medical care must

allege (1) deliberate indifference (2) to a serious medical need. See Rouse v. Plantier,

182 F.3d 192, 197 (3d Cir. 1999). The District Court assumed, as will we, that Coley’s

cyst presented a serious medical need. Thus, the only issue is whether he stated a claim

that defendants were indifferent to that need. We agree that he did not.



   1
     We have jurisdiction pursuant to 28 U.S.C. § 1291. The District Court discussed
both the standards for dismissal under Rule 12(b)(6) and for motions for summary
judgment, but did not specify the basis for its ruling. With the exception of a stray
reference to the January 2007 removal of Coley’s cyst (which he acknowledged below
and does not dispute), the District Court’s discussion relies solely on the allegations of
Coley’s complaint and the supporting exhibits attached thereto. We will therefore treat
the District Court’s dismissal of the complaint as one under Rule 12(b)(6). We review de
novo both dismissals under Rule 12(b)(6), see Phillips v. County of Allegheny, 515 F.3d
224, 230 (3d Cir. 2008), and denials of reconsideration based on issues of law, see Max’s
Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
Under Rule 12(b)(6), we must “‘accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief.’” Phillips, 515
F.3d at 233 (citation omitted).
   2
     The District Court also concluded that Coley failed to allege each defendant’s
specific personal involvement, that defendant Durr is immune from suit, and that the
remaining defendants are entitled to qualified immunity. In light of our disposition, we
need not reach these issues.

                                              3
              A prison official acts with deliberate indifference to a prisoner’s medical

needs only if he or she “knows of and disregards an excessive risk to inmate health or

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “We have found ‘deliberate

indifference’ in a variety of circumstances, including where the prison official (1) knows

of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2)

delays necessary medical treatment based on a non-medical reason; or (3) prevents a

prisoner from receiving needed or recommended medical treatment. We also have found

‘deliberate indifference’ to exist where the prison official persists in a particular course of

treatment ‘in the face of resultant pain and risk of permanent injury.’” Rouse, 182 F.3d at

197 (citations omitted).

              In this case, we agree that Coley’s allegations do not raise an inference that

any of the defendants acted with deliberate indifference. To the contrary, those

allegations reveal that defendants have provided Coley with a regular and recurring

course of treatment. He may not always have received treatment as quickly as he would

have liked, but he has alleged nothing suggesting that any delays in treatment were the

result of deliberate indifference to his medical needs. We have construed Coley’s pro se

complaint liberally, but none of his allegations “‘raise[s] a right to relief above the




                                               4
speculative level,’” Phillips, 515 F.3d at 234 (citation omitted). Accordingly, we will

affirm.3




   3
     District courts ordinarily must provide an opportunity to amend before dismissing a
complaint unless amendment would be inequitable or futile. See Phillips, 515 F.3d at
236. The District Court neither gave Coley leave to amend nor discussed its reasons for
not doing so. Given the course of treatment that Coley describes, however, it is clear to
us that any amendment would have been futile. Our conclusion is confirmed by an
amended complaint that Coley in fact submitted to the District Court (apparently just days
before its ruling), which still fails to allege anything raising an inference that defendants
acted with deliberate indifference.

                                              5
