      ALD-290                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-2987
                                     ____________

                                 ANDREW C. BICKEL,
                                               Appellant,

                                            v.

               JUDGE GORDON R. MILLER; WARDEN TIM LEWIS;
               COMMISSIONER MORRIS WADE; COMMISSIONER
              JACK PRESTON; COMMISSIONER SHERMAN ALLEN;
              VANTAGE CCCF HEALTHCARE PROVIDER; DOCTOR
                RICHARD MORAN; JUDY UREY, Nurse Practitioner
                     __________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civ. No. 08-cv-00258)
                   Magistrate Judge: Honorable Susan Paradise Baxter
                      __________________________________

        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
                                 September 15, 2011

           Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                           (Opinion filed: September 30, 3011)
                                     ____________

                                       OPINION
                                     ____________


PER CURIAM

      Appellant Andrew Bickel, a state prisoner, brought a civil rights action, 42 U.S.C.

§ 1983, in the United States District Court for the Western District of Pennsylvania

against numerous correctional officials and health care providers at the Crawford County
Correctional Facility (“CCCF”) where Bickel previously was incarcerated. Bickel

alleged that the defendants were deliberately indifferent to his serious medical needs in

violation of the Eighth Amendment at various times from May 21, 2008 through October

13, 2008. He alleged that he was not evaluated by medical staff at CCCF for two days

after his transfer from Erie County Prison, and not given pain medication for his chronic

back pain for over seven days after the transfer. In addition, he alleged that he reinjured

his back about a month after being transferred to CCCF, and medical staff failed to timely

examine him. He complained that he must sit in a hard plastic chair and keep his leg

straight in order to avoid feeling extreme pain. Bickel alleged that he also had numerous

neurological symptoms, and should have been referred to a psychiatrist. In addition to

these allegations, Bickel alleged that medications are dispensed at CCCF by untrained

prison guards, and care is provided by nurses, all in violation of the United States

Constitution. Bickel also raised constitutional claims concerning the adequacy of

CCCF’s grievance procedures, and he challenged certain conditions of confinement.

       After the parties consented to jurisdiction by a United States Magistrate, the

Magistrate Judge dismissed defendant Vantage LTC Partnership pursuant to a duly filed

motion, Fed. R. Civ. Pro. 12(b)(6), and permitted Bickel’s Eighth Amendment claims to

proceed against the CCCF defendants. Defendants Dr. Richard Moran and Nurse Judy

Urey were dismissed due to Bickel’s failure to have them served with the complaint, see

Fed. R. Civ. Pro. 4(m). Discovery ensued. At the close of discovery, defendants Gordon

Miller, Tim Lewis, Morris Wade, Jack Preston and Sherman Allen filed a motion for

summary judgment, Fed. R. Civ. Pro. 56(a), in which they argued, among other things,

that Bickel was not denied medical care or treatment; on the contrary, he had been

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provided substantial medical care by licensed physicians and registered nurses while

incarcerated at CCCF. The CCCF defendants also argued that Bickel had failed to

exhaust his administrative remedies completely, see 42 U.S.C. § 1997e(a). Bickel filed a

response in opposition to the summary judgment motion, and submitted numerous items

in support.

       In an order entered on July 7, 2011, the Magistrate Judge granted summary

judgment to the remaining defendants. The Magistrate Judge determined that Bickel had

not properly completed the administrative review process in accordance with CCCF’s

procedural rules, Woodford v. Ngo, 548 U.S. 81, 90-91 (2006), with respect to the

majority of his claims. She determined that the defendants established through their

summary judgment motion and exhibits that Bickel had properly appealed only one of his

claims – that CCCF permits untrained correctional guards to dispense medications. With

respect to the merits of that Eighth Amendment claim, the Magistrate Judge determined

that there was no triable issue because Bickel did not allege that he suffered any injury as

a result of the prison guards’ actions. He did not allege that prison guards withheld his

medication, or distributed incorrect medication that harmed him or worsened his pain.

       Bickel appeals. Our Clerk granted him leave to appeal in forma pauperis and

advised him that the appeal was subject to summary dismissal under 28 U.S.C. §

1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He

was invited to submit argument in writing, and he has done so.

       We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. §

1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C.

§ 1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the

                                             3
appeal at any time if the Court determines that it is frivolous, 28 U.S.C. §

1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or

fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Our review of the Magistrate

Judge’s grant of summary judgment is plenary and we must affirm if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We conclude that there is no

arguable basis in fact or law for disagreeing with the Magistrate Judge’s summary

judgment determination in Bickel’s case. Neitzke, 490 U.S. at 325; Celotex Corp., 477

U.S. at 322-23.

       A prisoner must exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a)

prior to bringing suit. See Booth v. Churner, 532 U.S. 731 (2001). This “exhaustion

requirement applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). We agree with the Magistrate

Judge that CCCF’s multi-tier grievance process is constitutionally adequate. We also

note that, in his favor, Bickel filed numerous grievances with respect to various matters,

including the dispensing of medication, a delay in receiving medication, interference with

his medical care, contraband, and safety/sanitation and food service. But, as the

Magistrate Judge concluded, Bickel for the most part failed to properly appeal the denial

of his grievances. Proper exhaustion means using all steps provided by the prison so that

prison officials address the issues on the merits. See Woodford, 548 U.S. at 90.

Summary judgment was appropriate here because Bickel failed to come forward with any

evidence to rebut the defendants’ showing that he failed to complete all steps of the

                                              4
grievance process with respect to the majority of his claims. See Fed. R. Civ. Pro.

56(e)(3); see also Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004). (Prison Litigation

Reform Act contains a procedural default component).

       With respect to the one claim Bickel exhausted, the summary judgment record

establishes no genuine issue for trial. Deliberate indifference to serious medical needs is

a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

To act with deliberate indifference is to recklessly disregard a substantial risk of serious

harm. Farmer v. Brennan, 511 U.S. 825, 836 (1994). The defendants’ unrebutted

evidence shows that licensed nurses at CCCF pack the medications. They are delivered

to the housing units, and the pod officers supervise distribution of the medications.

Bickel made no showing whatever that unlicensed correctional officers exercise

independent medical judgment with respect to distribution of the medications, and, as the

Magistrate Judge determined, Bickel did not allege that prison guards withheld his

medication, or distributed incorrect medication that harmed him or worsened his pain.

       We add that, even if Bickel had exhausted his Eighth Amendment claims with

respect to the delay in receiving his pain medication, and the amount, timing of, and type

of diagnosis and care that he received, summary judgment for the defendants still would

have been proper because there was an insufficient evidentiary basis on which a

reasonable jury could find in Bickel’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986). The defendants’ exhibits show that Bickel was provided substantial

medical care by licensed physicians and registered nurses while incarcerated at CCCF.

For example, one such exhibit, a medical report, shows that Dr. Moran referred Bickel to

a neurologist, Dr. Donald L. Rezek, in September, 2008. See Exhibit 14, Defendants’

                                              5
Motion for Summary Judgment. Dr. Rezek evaluated Bickel and his complaints of

tingling and numbness in his hands and feet, and difficulty with balance and

coordination, which Bickel thought had gotten worse as a result of the medication he was

taking. See id.

       Dr. Rezek recommended that the drugs Bickel complained about – amitriptyline

and Neurontin – be discontinued, but there is no indication in Dr. Rezak’s report that

CCCF’s health care staff recklessly disregarded a serious medical need.1 See Estelle, 429

U.S. at 104-05; Farmer, 511 U.S. at 836. Because the standard is recklessness, “prison

officials who actually knew of a substantial risk to a prisoner’s protected right may be

found free from liability if they responded reasonably to the risk, even if the harm

ultimately was not averted.” Id. at 844. At most, Bickel’s submissions in the

proceedings below reveal disagreements about his care and treatment; this is not a

sufficient basis for establishing a triable issue of deliberate indifference. See White v.

Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). Furthermore, Bickel’s allegations of delay

in providing pain medicine and diagnosis, see Estelle, 429 U.S. at 104 (intentionally

delaying access to care constitutes deliberate indifference), were unsupported by any

evidence to show that any delay had an adverse effect on his condition.

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).



1
 Dr. Rezek noted Bickel’s history of neck and back pain associated with a car accident in
1978, and that Bickel had once fallen out of a deer stand. Dr. Rezek noted that Bickel
had been prescribed morphine and Vicodin from 2005 to 2007 for back and leg pain.
Ultimately, Dr. Rezek determined that Bickel might be suffering from compression of his
sciatic nerve, mild peripheral polyneuropathy, lower back pain, and mild serotoninergic
problems caused by overlapping antidepressants. See id.
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