BLD-063                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 14-3656
                                  ___________

                             HARRY L. BECKETT,
                                         Appellant

                                        v.

          PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
            PRISON HEALTH SERVICE SERVICES, P.H.C.A.;
                      MARY L. SHOUWALTER,
  REGISTERED NURSE/COORDINATOR HEALTH CARE ADMINISTRATOR;
          DR. OLGA BEREGOUSKAYA, MEDICAL DIRECTOR;
                PHYSICIAN ASSISTANT DAWN MILLS;
              ANGIE AULTMAN, PHYSICIAN ASSISTANT;
       LYNN ALBRIGHT; WILLIAM RANDOLPH; JOHN/JANE DOE
     UNKNOWN EMPLOYEES OF PENNSYLVANIA DEPARTMENT OF
                          CORRECTIONS
               ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                         (D.C. Civil No. 1-10-cv-00050)
                  District Judge: Honorable Sylvia H. Rambo
                  ____________________________________

      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
                               December 18, 2014

            Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                         (Opinion filed: January 7, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Harry L. Beckett, a Pennsylvania inmate proceeding pro se and in forma pauperis,

appeals from the District Court’s order granting summary judgment to the defendants.

For the reasons set forth below, we will summarily affirm.

                                             I.

       Beckett claims that the defendants violated various state and federal laws and his

constitutional rights by failing to properly treat his chronic medical condition. Beckett’s

allegations focus primarily on the defendants wrongfully denying him medical showers—

i.e., longer hot showers—and the use of a cane. The District Court discussed Beckett’s

pertinent medical records, which go back as far as 1996, in detail, and we need not repeat

that exposition here. In sum, although for most of this period medical staff authorized

Beckett’s medical showers, these orders were occasionally rescinded or altered, often

within short periods of time. Indeed, on at least one occasion an order for medical

showers was issued and rescinded in the same day. Beckett’s authorization to use a cane

also varied over time.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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       After accepting Beckett’s amended complaint, the District Court granted his

motion for appointment of counsel, and two pro bono attorneys agreed to represent him.

The District Court then granted the defendants’ motions to dismiss in part, removing

several claims and parties from the action. After extensive discovery, the defendants

moved for summary judgment, arguing that Beckett’s remaining claims were barred by

the statute of limitations, failed on the merits, and failed because Beckett did not exhaust

his administrative remedies.

       The District Court granted summary judgment on some claims based on the statute

of limitations and on the remaining claims based on the merits. Beckett timely filed a

notice of appeal. His pro bono counsel then withdrew from the case because they found

no successful basis for an appeal.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District

Court’s dismissal and summary judgment orders is plenary. See State Auto Prop. & Cas.

Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009) (summary judgment); Allah

v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000) (motion to dismiss). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Summary

judgment is appropriate if, viewing the facts in the light most favorable to the non-

moving party, there is no genuine issue of material fact and the moving party is entitled
                                              3
to judgment as a matter of law. Fed. R. Civ. P. 56(a). We will summarily affirm the

District Court because this appeal does not present a substantial question. See 3d Cir.

LAR 27.4; 3d Cir. I.O.P. 10.6.

       At the motion to dismiss stage, the District Court properly disposed of several of

Beckett’s claims. First, the District Court correctly held that the Eleventh Amendment

barred Beckett’s claims for money damages against Department of Corrections’

defendants in their official capacities, as well as Beckett’s claim for injunctive relief

against the Department of Corrections. See Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 (1989). The District Court then relied on sovereign immunity to dismiss Beckett’s

pendent state law claims against the Department of Corrections. The Commonwealth of

Pennsylvania has not waived sovereign immunity for such claims; accordingly, dismissal

was proper. See 42 Pa. Cons. Stat. § 8522; McCool v. Dep’t of Corr., 984 A.2d 565, 570

(Pa. Commw. Ct. 2009).

       Turning to the medical defendants, the District Court dismissed Prison Health

Services, Inc., from the case because Beckett failed to allege that it was personally

involved in any of his claims. This rule is well-established. See Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988) (collecting cases). Finally, the District Court

dismissed Beckett’s claims under the Americans with Disabilities Act because his alleged

treatment did not fall within the statute’s prohibitions. See 42 U.S.C. § 12132; Bryant v.

Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (holding that the ADA “would not be violated


                                              4
by a prison’s simply failing to attend to the medical needs of its disabled prisoners.”).

We perceive no error with the District Court’s dismissals and Beckett raises none.

       After extensive discovery, the District Court granted summary judgment to the

defendants on some of Beckett’s claims because he filed his lawsuit too late. We agree.

For § 1983 actions based on conduct in Pennsylvania, the statute of limitations is two

years from the date the claim accrued. See 42 Pa. Cons. Stat. § 5524(2); Kach v. Hose,

589 F.3d 626, 634 (3d Cir. 2009). A claim accrues “when the plaintiff knew or should

have known of the injury upon which [his] action is based.” Kach, 589 F.3d at 634

(internal quotation marks omitted). Beckett brought this action in January 2010. As

such, the District Court ruled that any claim that arose before January 2008 was time

barred, rejecting Beckett’s argument that all of his claims were timely under the

continuing violations doctrine.

       The continuing violations doctrine is an equitable exception to the limitations

period, which provides that, “when a defendant’s conduct is part of a continuing practice,

an action is timely so long as the last act evidencing the continuing practice falls within

the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)

(quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d

1283, 1295 (3d Cir. 1991)). Three factors guide whether to apply the continuing

violations doctrine:

       (1) subject matter-whether the violations constitute the same type of
       discrimination, tending to connect them in a continuing violation; (2)
       frequency-whether the acts are recurring or more in the nature of isolated
                                              5
       incidents; and (3) degree of permanence-whether the act had a degree of
       permanence which should trigger the plaintiff’s awareness of and duty to
       assert his/her rights and whether the consequences of the act would
       continue even in the absence of a continuing intent to discriminate.

Id. As to the third and most important factor, “we must consider the policy rationale

behind the statute of limitations. That is, the continuing violations doctrine should not

provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in

pursuing their claims.” Id. at 292, 295.

       As the District Court noted, Beckett’s grievances indicate that he was aware that

he had a claim at least by March 2007. Indeed, Beckett stated that he could have filed a

lawsuit in the 1990s to stop the defendants’ conduct related to his medical treatment, but

did not do so. While it is true that Beckett continued to have issues with his medical

treatment, the “continuing conduct of defendant will not stop the ticking of the limitations

clock begun when plaintiff obtained requisite information. On discovering an injury and

its cause, a claimant must choose to sue or forego that remedy.” Kichline v. Consol. Rail.

Corp., 800 F.2d 356, 360 (3d Cir. 1986). As to most of the alleged wrongdoing in this

case, Beckett chose to forego his remedy. The continuing violations doctrine is not a

license to tack untimely claims onto timely claims. See Cowell, 263 F.3d at 294-95.

Accordingly, we agree with the District Court that the statute of limitations bars any of

Beckett’s claims arising out of conduct before January 2008.

       We also agree that Beckett’s timely claims fail on the merits. “[D]eliberate

indifference to serious medical needs of prisoners” violates the Eighth Amendment.

                                             6
Estelle v. Gamble, 429 U.S. 97, 104 (1976). Medical malpractice or negligence,

however, does not violate the Eighth Amendment. Id. at 105-06. The deliberate

indifference “test affords considerable latitude to prison medical authorities in the

diagnosis and treatment of the medical problems of inmate patients. Courts will ‘disavow

any attempt to second-guess the propriety or adequacy of a particular course of treatment

. . . (which) remains a question of sound professional judgment.’” Inmates of Allegheny

Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551

F.2d 44, 48 (4th Cir. 1977)).

       Although Beckett’s treatment changed over time, often against his wishes, the

record indicates that his treatment reflected exercises of sound medical judgment, not

deliberate indifference. Beckett has offered no evidence from which a reasonable juror

could conclude that the defendants intentionally refused to provide needed treatment,

delayed necessary treatment for a non-medical reason, prevented Beckett from receiving

needed or recommended treatment, or persisted in a particular course of treatment “in the

face of resultant pain and risk of permanent injury.” Rouse v. Plantier, 182 F.3d 192, 197

(3d Cir. 1999). Accordingly, Beckett’s Eighth Amendment deliberate indifference claims

fail on the merits.

                                             III.

       There being no substantial question presented on appeal, we will summarily affirm

the judgment of the District Court.


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