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


4-27-2007

James v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2937




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BLD-88                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 06-2937

                                _______________

                               TYRONE P. JAMES,

                                        Appellant

                                         v.

  PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JEFFREY A. BEARD,
    PH.D., SECRETARY; FRANKLIN J. TENNIS, SUPERINTENDENT, SCI-
ROCKVIEW; RICHARD ELLERS, HEALTH CARE ADMINISTRATOR; WILLIE R.
  BARNES, D.D.S., DENTIST, SCI-ROCKVIEW; SHARON M. BURKS, CHIEF
                        GRIEVANCE OFFICER

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                         (M.D. Pa. Civ. No. 05-cv-02105)
                      District Judge: Honorable Yvette Kane

                   _____________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 29, 2006

           Before: MCKEE, FUENTES AND ROTH, CIRCUIT JUDGES

                             (Filed: April 27, 2007 )
                           _______________________

                                  OPINION
                           _______________________

PER CURIAM
       Tyrone P. James, an inmate, appeals the district court’s order dismissing his civil

rights action, brought pursuant to 42 U.S.C. § 1983, for failure to state a claim upon

which relief may be granted. For the following reasons, we will summarily affirm the

district court’s order.

       James is, and at all relevant times was, an inmate at SCI-Rockview, Bellefonte,

Pennsylvania. On October 17, 2005, James filed a complaint with the district court

against a prison dentist and various prison officials and administrators alleging that he

received improper dental care in violation of the Eighth Amendment. James specifically

alleged that on April 20, 2004, he requested to see prison dental staff because of an

abscessed tooth in the upper right corner of his mouth. The next day, during an

appointment with the prison’s dentist, Willie R. Barnes, D.D.S., x-rays were taken

confirming the presence of an abscess. Dr. Barnes told James that the remedy for James’

condition was extraction of the offending tooth. James insisted that an alternative method

to soothe his painful condition be employed, but Dr. Barnes maintained that extraction

was the only choice available. James then signed a consent form and Dr. Barnes

performed the extraction. After the extraction James was permitted to view his removed

tooth which he observed as being healthy and neither rotten nor decayed. About a week

later, James returned to Dr. Barnes complaining of severe pain in the area of the

extraction and numbness in his jaw. In response to James’ complaints, Dr. Barnes

prescribed an antibiotic.


                                             -2-
       James subsequently filed a grievance, alleging that Dr. Barnes provided an

improper evaluation of James’ condition and negligent treatment of his dental needs.

James further claimed to be suffering from mental and physical pain as a result of the

extraction. Richard Ellers, Health Care Administrator, denied James’ grievance noting

that Dr. Barnes had provided the only treatment available for James’ condition and that

“the tooth could not be saved.” James appealed Ellers’ decision to Superintendent

Franklin Tennis. Tennis also denied James’ grievance noting that Dr. Barnes’ report to

him indicated that “an antibiotic would not have prevented, reversed, or even slowed the

progression of [James’] abscess. The only possible procedure to save [James’] tooth

would have been a root canal [] [and] . . . D.O.C. policy does not permit these particular

type of root canals.” In a final review, Sharon Burks, Chief Grievance Officer of the

Department of Corrections (“Department”), stated that the responses provided to James

“at the institutional level [were] appropriate and in accordance with Department of

Corrections policies and procedures.”

       James filed a complaint in the district court and was granted in forma pauperis

status pursuant to 28 U.S.C. § 1915. As James’ complaint named governmental officers

and employees as defendants, the district court carried out its obligation to screen the

complaint under 28 U.S.C. § 1915A, prior to service of process. On February 28, 2006,

pursuant to the magistrate judge’s report and recommendation, the district court entered

an order dismissing James’ complaint for failure to state a claim upon which relief could

be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); see also Fed. R. Civ. P. 12(b)(6). James,

                                             -3-
again proceeding pro se, filed a timely notice of appeal.1

           The district court properly disposed of James’ Eighth Amendment claim, as it

concerned Dr. Barnes, because James’ allegations merely amounted to a disagreement

over the proper course of his treatment and thus failed to allege a reckless disregard with

respect to his dental care. See Farmer v. Brennan, 511 U.S. 825, 836 (1994). The

standard for cruel and unusual punishment under the Eighth Amendment, established by

the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, 106 (1976), and its progeny,

has two prongs: 1) deliberate indifference by prison officials and 2) serious medical

needs. See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.

1987); see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). “It is well-settled

that claims of negligence or medical malpractice, without some more culpable state of

mind, do not constitute ‘deliberate indifference.’” Rouse, 182 F.3d at 197. “Nor does

mere disagreement as to the proper medical treatment support a claim of an eighth

amendment violation.” Lanzaro, 834 F.2d at 346. Grossly negligent behavior, however,

can constitute deliberate indifference as can a doctor’s choice to take an “easier and less



       1
         This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We
exercise plenary review of a dismissal order for failure to state a claim. See Angstadt v.
Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004). “In reviewing the grant of a
motion to dismiss for failure to state a cause of action, we apply the same standard as did
the district court, accepting the allegations of the complaint as true and construing those
allegations in a light most favorable to the plaintiff. [] This standard does not vary where
the action is brought pursuant to 42 U.S.C. § 1983.” Dykes v. Se. Pa. Transp. Auth., 68
F.3d 1564, 1566 n.1 (3d Cir. 1995)(citation omitted); see also Ransom v. Marrazzo, 848
F.2d 398, 401 (3d Cir. 1988).

                                             -4-
efficacious course of treatment” in response to a serious medical need. Id. at 347.

       James failed to allege facts that, if proved, would constitute a violation of the

Eighth Amendment on the part of Dr. Barnes. James alleged no undue delay in receiving

treatment and, as the district court noted, the evidence he presented established that he

received timely care from Dr. Barnes. Although James may have preferred a different

course of treatment, his preference alone cannot establish deliberate indifference as such

second-guessing is not the province of the courts. See Inmates of Allegheny County Jail

v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)(“[c]ourts 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.’”); see also White v. Napoleon, 897

F.2d 103, 110 (3d Cir. 1990)(doctor’s choice of one drug over another is not actionable).

Further there is no indication that Dr. Barnes’ decision was based on an ulterior motive

beyond routine patient care within the confines of the Department’s policies. See Spruill

v. Gillis, 372 F.3d 218, 237 (3d Cir. 2004)(noting that in order to state a deliberate

indifference claim, a plaintiff should in some way “connect[] his factual allegations to the

alleged mental states” of the defendants); see also Durmer v. O’Carroll, 991 F.2d 64, 69

(3d Cir. 1993)(allegations of a deliberate denial of treatment “motivated by non-medical

factors” are sufficient to state an Eighth Amendment claim). Thus, the district court

correctly held that James’ allegations could not constitute deliberate indifference.

       We also agree with the district court that James failed to state an Eighth



                                             -5-
Amendment claim against the remaining appellees, Beard, Burks, Ellers, and Tennis.2

Because this action is under § 1983, James cannot rely solely on respondeat superior as a

theory of liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). These

various prison officials and administrators are not physicians, and a non-medical prison

official is not charged with deliberate indifference for withholding adequate medical care

from a prisoner being treated by medical personnel absent “a reason to believe (or actual

knowledge) that prison doctors or their assistants are mistreating (or not treating) a

prisoner.” Spruill, 372 F.3d at 236. Once a prison grievance examiner becomes aware of

potential mistreatment, the Eighth Amendment does not require him or her to do more

than “review[] . . . [the prisoner's] complaints and verif[y] with the medical officials that

[the prisoner] was receiving treatment.” Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.

2005) (citing Spruill, 372 F.3d at 236). The evidence presented by James conclusively

shows that he received treatment from Dr. Barnes and he simply has not alleged any facts

implicating these officials other than that they responded unfavorably to his later-filed

grievances. Accordingly, the district court did nor err in dismissing James’ Eighth

Amendment claims against Beard, Burks, Ellers, and Tennis.

       Even in light of the less stringent standards applied to pro se complaints, James

failed to allege sufficient facts to survive a dismissal for failure to state a claim. See



       2
       We note that suit against the Department is barred by the state’s Eleventh
Amendment immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984).

                                              -6-
Estelle, 429 U.S. at 106 (noting that “a pro se complaint . . . can only be dismissed for

failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.”) Accordingly, because

this appeal presents us with no substantial question, we will summarily affirm the

decision of the district court. See Third Circuit LAR 27.4 and IOP 10.6.




                                              -7-
