ALD-286                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-4651
                                      ___________

                                     BEN ROTEN,

                                                        Appellant

                                            v.

                           DR. LAWRENCE MCDONALD
                      ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                                 (D.C. Civil No. 08-00081)
                       District Judge: Honorable Joseph J. Farnan
                      ____________________________________

           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
                                  September 10, 2010

               Before: SLOVITER, AMBRO and SMITH, Circuit Judges

                           (Opinion filed: September 21, 2010)
                                        _________

                                        OPINION
________
PER CURIAM

       In this civil rights action commenced under 42 U.S.C. § 1983, Ben Roten, a Delaware

state inmate formerly confined at the Sussex Correctional Institution (SCI),

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claimed that he was sexually abused by an SCI medical professional - Dr. Lawrence

McDonald - during a required physical examination. The District Court granted McDonald’s

motion for summary judgment. Roten filed this appeal. Because the material facts in this

case are not in dispute, and because a reasonable jury could not find Roten’s complaint to

have stated a viable Eighth Amendment claim against McDonald, we find no error in the

District Court’s decision. Furthermore, because this appeal presents no substantial question,

we will summarily affirm the judgment of the District Court.

                                              I.

       In his original complaint1 , Roten alleged that SCI directed him to undergo a complete

physical examination on October 25, 2006. The physical examination was conducted solely

by McDonald. Believing that he was “sexually molested” during the examination (Dist. Ct.

dkt #2, at 5), Roten sought relief through the inmate grievance process. He was ultimately

unsuccessful. On November 10, 2006, McDonald met with Roten to, in Roten’s words, “try

to explain why he touched me the way he did.” Id. Roten later wrote: “I told him that I was

uncomfortable talking to him and I left.” (Dist. Ct. dkt #32, at 8.)

       On February 1, 2008, Roten filed this civil rights complaint, naming as defendants

McDonald, Department of Corrections Commissioner Carl Danberg (Commissioner



   1
     Roten was granted leave to file an amended complaint in order to change the
complaint’s caption and to add a monetary value to his punitive damages request. Roten
did not, however, alter or expound upon the factual allegations in the original complaint.

                                              2
Danberg), and additional SCI employees and contractors. The District Court granted Roten

leave to proceed in forma pauperis and, after screening his complaint pursuant to 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b)(1), it dismissed from the case all named defendants save

McDonald. Discovery ensued.

       In an excerpt from Roten’s journal, produced in response to McDonald’s request for

documents, Roten wrote that McDonald did not wear gloves during the October 25, 2006

exam, and further described their interaction as follows:

       Dr. McDonald then proceeded with the examination by having me remove my
       jumpsuit down to the [waist] and to remove my tee-shirt. He listened to me
       breathe, then he ask[ed] me to remove my jumpsuit and boxers and to lay
       back[.] He the[n] examined my pubic area and ask[ed] me if I had a hernia
       surgery, and I told him [‘]yeah, I had surgery[,’] that I thought he knew that.
       He acted like he didn’t know about it. He then ask[ed] me to lift my left leg
       up and to hold them apart[.] He then took my penis in one hand and pulled it
       to the right, while he cuffed my testicles in his other hand and rolled them
       around in a massaging motion.

(Dist. Ct. dkt #32, at 6.)

       McDonald repeated that series of manipulations with Roten’s right leg raised, after

which McDonald told Roten to get dressed.2 The examination appeared to be finished until

Roten told McDonald that he was suffering from frequent urination. According to Roten,

McDonald told him to remove his clothes again, then:

       he rolled over in his chair and took my penis in his first two fingers and
       thumbs of each hand then he squeezed down my penis in a milking motion



   2
     At his deposition, Roten testified that each series of manipulations lasted between
fifteen and twenty seconds.

                                             3
        until he got to the tip [and] then he pulled the tip open with his thumbs and
        look[ed] in the pee hole[.] Then he told me everything was [okay and] to get
        dressed.

Id. at 7.

        In a document responsive to Roten’s interrogatories, McDonald explained the medical

justification for his conduct during Roten’s physical exam:

       Holding each leg up and then pushing down on each leg is used to evaluate
       strength of legs and back. The genital exam includes palpating the testicles
       looking for masses, tenderness and presence and size of both testicles. The
       penis is positioned out of the way for the testicular exam. These are all
       common elements of a complete physical exam.

                                         ***

        The palpation of the shaft of the penis is to look for points of pain or masses
        and to express any discharge. This is not part of a routine genital exam but
        was performed after [Roten] had completed his exam and had redressed. He
        then informed [me] of his frequent urination problems and so [I] asked him to
        lower his pants and boxers to permit the above exam. [My] concern was for the
        presence of a venereal disease or infection and whether [Roten] needed a
        urethral probe. [I] did not feel this was needed. [I] did order a urine culture.

(Dist. Ct. dkt #47, at 7-8.)

        To get a second opinion, Roten sent out letters to different medical professionals

asking what steps they would take in diagnosing and treating a patient complaining of

frequent urination. Roten’s letters did not describe the examination performed by McDonald.

Roten received a response from Dr. Mark T. Edney, who wrote that “[u]rinary frequency has

many potential causes,” (Dist. Ct. dkt #57, at 7), including fluid intake or an enlarged

prostate. If the latter, Dr. Edney wrote, “[s]ometimes we will start a medicine like Flomax



                                               4
to try to reduce frequency by unblocking the prostate,” id., but beyond that it would depend

on the patient’s individual situation. In a separate letter, Dr. Robert L. Klaus wrote that

Roten’s questions “could only be answered by an office visit where we could have you void

in a special machine to determine how your flow is and also measure you for residual urine

with ultrasound.” Id. at 9. In addition to those letters, Dr. James E. Moulsdale, a board-

certified urologist, reviewed Roten’s complaint and the evidence presented in his case by

both parties. Accepting as true Roten’s description of the October 25, 2006 physical exam,

Dr. Moulsdale opined that there was nothing improper about McDonald’s conduct.

       During his deposition, Roten testified that he was molested as a child, and that the

examination by McDonald caused bad memories to resurface. Roten eventually came under

the care of Elena Padrell, a part-time psychiatrist at SCI who was directly employed by

Correctional Medical Service (CMS). Roten attended therapy sessions with Padrell almost

every week.     Padrell eventually resigned her position at SCI, stating in a letter to

Commissioner Danberg that she “had to resign or risk compromising my professional ethics.”

(Dist. Ct. dkt #61, at 2.) In that letter, Padrell outlined six reasons that supported her

decision, the sixth reading as follows:

       Finally, during my treatment sessions with patients I was told by several of
       them about a very serious matter concerning the possible sexual abuse of
       inmates by a medical colleague. When I brought this to the attention of CMS
       officials I was told . . . that I should be a ‘team player’ and let those allegations
       pass. Doing so would be a serious violation of my professional ethics,
       however. Thus, when I realized that nothing was going to be done to even
       look into those allegations, I felt I had to resign and seek the opportunity to
       discuss these issues with you.

                                                5
Id. at 3.

        Padrell’s letter did not mention by name Roten or McDonald. Commissioner Danberg

responded to Padrell’s letter in kind, stating that the allegation “of staff sexual misconduct

reported to you by inmates . . . has been investigated by Internal Affairs and reviewed by the

Medical Society of Delaware and determined to be unfounded.” Id. at 4. By contrast, Roten

received a letter from the Delaware Board of Medical Practice advising Roten that his claim

of sexual misconduct was “criminal in nature and therefore outside the jurisdiction of this

agency to investigate.” (DC dkt #57, at 11.)

        In one of Roten’s journal entries, he wrote that he underwent a subsequent physical

examination on April 20, 2007. This exam was administered by “a new [d]octor, . . . and at

no time did he ever ask me to get undressed past my [waist], [and] at no time did he ever feel

my penis or [testicles], the way Dr. McDonald did.” (Dist. Ct. dkt #32, at 13.)

        On June 22, 2009, McDonald moved for summary judgment. Roten filed a response

to the motion, and McDonald filed a reply. On November 30, 2009, the District Court

granted McDonald’s motion and entered judgment in his favor the following day. Roten

timely appealed.

                                             II.

            The District Court exercised jurisdiction under 28 U.S.C. § 1331.       We have

jurisdiction under 28 U.S.C. § 1291, and our review is plenary. See Howley v. Mellon

Financial Corp., --- F.3d ---, 2010 WL 3397456, at *3 (3d Cir. Aug. 31, 2010, No. 08-1748).



                                               6
“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

to judgment as a matter of law.” Id. (citations omitted). We may affirm the District Court’s

grant of summary judgment on any grounds that find support in the record. Azur v. Chase

Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). Furthermore, if Roten’s appeal

fails to present a substantial question, we may summarily affirm the judgment below. See

LAR 27.4; I.O.P. 10.6.

                                             III.

         “Section 1983 provides remedies for deprivations of rights established in the

Constitution or federal laws.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.

2006). The District Court reasonably construed Roten’s claim of sexual abuse as one arising

under the Eighth Amendment, which proscribes the “unnecessary and wanton infliction of

pain.”    Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).         The Eighth

Amendment also secures an inmate’s “right not to be sexually abused by a state employee

while in confinement.” Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001).

A touchstone of Eighth Amendment jurisprudence in this context is that its violation will not

be found unless a prison official acts with a “sufficiently culpable state of mind.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994).

         It is worth reinforcing that “[o]ur role in reviewing a grant of summary judgment is

not to weigh the evidence or to determine the truth of the matter, but only to determine



                                              7
whether the evidence of record is such that a reasonable jury could return a verdict for the

nonmoving party.” Reedy v. Evanson, --- F.3d ---, 2010 WL 2991378, at *8 (3d Cir. Aug.

2, 2010, No. 09-2210) (citation and internal quotations omitted). Importantly, the material

facts of this case are not in dispute; the only divergence lies between the parties’ perceptions

concerning the legality of McDonald’s conduct. Having reviewed the entire record in this

case, we conclude that, even viewing that record in the light most favorable to Roten, a

reasonable jury could not return a verdict in his favor on his Eighth Amendment claim

against McDonald.

       We arrive at this conclusion despite drawing the inference that McDonald was the

“medical colleague” referenced in Padrell’s letter to Commissioner Danberg. That inference

is not enough for Roten’s suit to survive summary judgment. Roten failed to present

evidence even suggesting that McDonald’s conduct during the October 25, 2006 physical

exam deviated in any way from standard procedure.3 Neither Dr. Edney nor Dr. Klaus was

asked to comment on the appropriateness of McDonald’s conduct, and both indicated that

they would need to examine Roten in person to address his specific medical concerns. Dr.

Moulsdale did, however, review the specific evidence presented in this case, and he believed

there to be no impropriety during Roten’s physical exam. Moreover, having inferred that




   3
     That is the case regardless of Roten’s indication that a subsequent physical
examination at SCI was conducted differently and, inferring favorably for Roten, less
intrusively. Notably, it does not appear as though Roten complained of the same
symptoms during that examination.

                                               8
Padrell’s letter to Commissioner Danberg included a veiled reference to McDonald, we note

that the SCI inmates’ allegations of sexual misconduct were investigated by DOC Internal

Affairs, reviewed by the Medical Society of Delaware, and determined to be “unfounded.”

Roten offered no evidence to undermine the integrity of those investigations.

       To support an Eighth Amendment claim, it is not enough for an inmate to object to

the manner in which a medical professional administers treatment or conducts an

examination. See Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d

Cir. 1987). Judges are not “versed in the nuances of the practices and techniques of the

medical profession and thus are ill-equipped to substitute their views regarding what is

medically adequate, proper, or antiseptic.” Ragsdale v. Turnock, 841 F.2d 1358, 1389 (7th

Cir. 1988) (Coffey, J., dissenting). Therefore, for the reasons given in this opinion, we are

confident that no reasonable jury could deem the allegations in Roten’s complaint sufficient

to demonstrate an Eighth Amendment violation.4

       Accordingly, because this appeal presents no substantial question, we will summarily

affirm the District Court’s judgment. Roten’s motion for appointment of counsel is denied.




   4
    After determining that summary judgment was appropriate as to Roten’s federal
claim, the District Court declined to exercise supplemental jurisdiction to the extent
Roten raised a state law claim for assault and/or battery. See 28 U.S.C. § 1367(c). This
was not an abuse of discretion. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct.
1862, 1867 (2009) (noting standard of review).

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