                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2006

Brandner v. First Corr Med
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3920




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Recommended Citation
"Brandner v. First Corr Med" (2006). 2006 Decisions. Paper 1568.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1568


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APS-108                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-3920
                                ________________

                         LARRY BRANDNER, Appellant

                                          v.


                      FIRST CORRECTIONAL MEDICAL;
                       MEDICAL DIRECTOR JOHN DOE;
                          RN BRENDA HOLWERDA
                    ____________________________________

                  On Appeal From the United States District Court
                             For the District of Delaware
                             (D.C. Civ. No. 03-cv-01146)
                   District Judge: Honorable Joseph J. Farnan, Jr.
                  _______________________________________


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
                                  January 26, 2006

          BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                             (Filed: February 16, 2006)

                           _______________________

                                   OPINION
                           _______________________

PER CURIAM

     Larry Brandner, an inmate at the Delaware Correctional Center (“DCC”) in
Smyrna, Delaware, appeals from the dismissal of his pro se action for failure to state a

claim upon which relief can be granted. Brander filed the instant lawsuit against First

Correctional Medical Center (“FCM”), Medical Director John Doe, and Nursing

Supervisor Brenda Holwerda pursuant to 42 U.S.C. § 1983, alleging that defendants

failed to provide him with adequate medical care in violation of the Eighth Amendment.

For the reasons stated below, we will affirm the judgment of the District Court.

       According to the complaint, on or about August 15, 2002, Brandner’s knee was

injured by another inmate at DCC. Two weeks later, his knee remained swollen and sore,

prompting Brandner to seek medical attention. As explained by the District Court, the

complaint indicates that between the date of injury and the date the complaint was filed,

Brandner’s knee was examined by employees of FCM on approximately a monthly basis.

FCM staff provided Brandner with pain medication and performed X-rays. Brandner

alleged that he was told as early as September 19, 2002 that crutches and a knee brace

would be ordered for him, but he never received either. Brandner filed grievances on

December 2, 2002 and February 1, 2003, complaining of the failure of prison officials to

provide him with crutches or a knee brace. On February 3, 2003 one of the doctors

recommended an MRI and told Brandner he would try to get him a cane, which Brandner

received in March of 2003. Brandner was informed on March 31, 2003 that the Medical

Director had denied his request for an MRI. Brandner filed his complaint on December

17, 2003.



                                             2
       The defendants filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), arguing that Brandner failed to allege facts sufficient to demonstrate

either deliberate indifference to a serious medical need or personal involvement of

Holweda sufficient to state a claim against her. They also argued that Brandner’s claims

against FCM impermissibly rested on respondeat superior liability, and that, with respect

to the remaining defendant, Delaware law does not permit fictitious name practice. On

July 23, 2005, the District Court granted the motion to dismiss, holding that the acts

alleged by Brandner did not rise to the level of deliberate indifference required to state a

claim under the Eighth Amendment, especially in light of FCM’s continuing provision of

medical care through the date of the opinion. Brandner timely appealed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because this

appeal presents no “substantial question,” we will summarily affirm the District Court’s

order. 3d Cir. LAR 27.4 & I.O.P. 10.6.

       In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that an inmate’s

claims against members of the prison medical department were not viable under § 1983,

where the inmate had received continuing care from medical staff, but believed that more

should have been done for him by way of diagnosis and treatment, and maintained that a

number of options available to medical personnel were not pursued on his behalf. Id. at

107. According to the Supreme Court, questions of medical judgment such as these are

not appropriate subjects of § 1983 lawsuits. See id.



                                              3
       Brandner’s complaint suffers from the same defect as the complaint at issue in

Estelle. In his opposition to the motion to dismiss, Brandner states that, since the time his

complaint was filed, he has received an MRI, which indicates that his knee is within

“normal range,” he has continued to receive medication and joint injections, and he has

been referred to an orthopedic surgeon. Brandner maintains that, despite these efforts, he

continues to experience swelling and pain in his knee. These allegations do not rise to the

level of deliberate indifference on the part of Appellees to Brandner’s serious medical

needs. See id. at 106 (holding that “a complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a valid claim under the Eighth

Amendment”); 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.’”).

       Accordingly, we will summarily affirm the decision of the District Court. 3d Cir.

LAR 27.4 & I.O.P. 10.6. Brandner’s motion for the appointment of counsel is denied.
