GLD-186                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-4504
                                  ___________

                               TERRY KUEHNER,
                                             Appellant

                                        v.

    *SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
  ROBERT TRETINIK; PHYSICIAN ASST. MYER; BRIAN COLEMAN, Warden;
                    DR. HERBIK; DR. SAAVEDRA

                    *(Pursuant to Rule 43(c), Fed. R. App. P.)
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                          (D.C. Civil No. 2:08-cv-01319)
                District Judge: Honorable David Stewart Cercone
                  ____________________________________

     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
                                  May 12, 2011

          Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

                              (Filed: May 24, 2011 )

                                    _________

                                    OPINION
                                    _________



PER CURIAM
       Terry Kuehner, an inmate at the State Correctional Institution at Mercer in

Pennsylvania, appeals pro se from the District Court’s decision dismissing his amended

complaint against Appellees Dr. Michael Herbik and physician’s assistant (“P.A.”) Chris

Meyer,1 and entering summary judgment in favor of Appellee Dr. Peter Saavedra. For

the reasons that follow, we will summarily affirm.

                                               I.

       In October 2008, Kuehner, then incarcerated at Pennsylvania’s State Correctional

Institution at Fayette (“SCI-Fayette”), commenced this civil rights action in the District

Court by filing a complaint pursuant to 42 U.S.C. § 1983. The complaint, brought

against then-Secretary of the Pennsylvania Department of Corrections Jeffrey Beard,

SCI-Fayette Superintendent Brian Coleman, Corrections Health Care Administrator

Robert Tretinik, P.A. Meyer, Dr. Herbik, and “Psy. Dr. Cerrelico,” alleged that the

defendants had violated Kuehner’s constitutional rights by denying him medical

treatment while at SCI-Fayette. Kuehner later amended the case caption, replacing “Psy.

Dr. Cerrelico” with Dr. Saavedra.

       In March 2009, Beard, Coleman, and Tretinik (hereinafter collectively referred to

as the “Commonwealth Defendants”) jointly moved to dismiss the claims against them

pursuant to Fed. R. Civ. P. 12(b)(6). The following month, P.A. Meyer and Dr. Herbik

jointly moved to dismiss and, in the alternative, sought a more definite statement as to the

       1
        P.A. Meyer’s last name is spelled “Myer” in Kuehner’s complaint and on the District
       Court and appellate dockets. In this opinion, however, we will use the spelling provided
       by Meyer’s appellate counsel.
                                                2
claims against them. In July 2009, Dr. Saavedra joined in those motions.

      In November 2009, the United States Magistrate Judge assigned to the case issued

a report recommending that the District Court grant both the Commonwealth Defendants’

motion to dismiss and the remaining defendants’ motion for a more definite statement. In

doing so, the Magistrate Judge concluded that Kuehner’s “allegations, construed

liberally, do not support a finding that any of the Commonwealth Defendants had any

knowledge of, or personal involvement in, the claims alleged in the Complaint,”

(Magistrate Judge’s Report and Recommendation of Nov. 25, 2009, at 6), and that

amendment of those allegations would be futile. On January 6, 2010, the District Court

adopted the Magistrate Judge’s report, dismissed the claims against the Commonwealth

Defendants, and granted the remaining defendants’ motion for a more definite statement.

      Kuehner subsequently filed a document that was construed as his amended

complaint. (See Dist. Ct. docket no. 73-1). That filing alleged that, in August 2007, a

Pennsylvania Court of Common Pleas judge ordered that he be sent to Norristown State

Hospital (“Norristown Hospital”) for “competency restoration.” During Kuehner’s stay

at Norristown Hospital, he was prescribed medications for his mental health condition

and a pinched nerve in his back. Kuehner claimed that, upon returning to SCI-Fayette in

February 2008, he was taken off those medications for four days, at which time Dr.

Saavedra prescribed a different medication, which made Kuehner feel worse. Dr.

Saavedra allegedly did not wean Kuehner off the medications he had taken at Norristown

Hospital or conduct blood testing. About two weeks after Kuehner returned to SCI-
                                            3
Fayette, P.A. Meyer allegedly refused to treat him when he did not pay the five dollar co-

pay fee. During an appointment several months later, Dr. Herbik and Administrator

Tretinik allegedly did not examine the pinched nerve in Kuehner’s back or prescribe any

pain medication for that condition. According to Kuehner, Secretary Beard and Warden

Coleman were made aware of these incidents through prison grievances he had filed.

       After Kuehner filed his amended complaint, P.A. Meyer and Dr. Herbik jointly

moved to dismiss, and Dr. Saavedra moved for summary judgment. In October 2010, the

Magistrate Judge issued a report recommending that the District Court grant both

motions. In doing so, the Magistrate Judge concluded that Kuehner had procedurally

defaulted his claims against P.A. Meyer and Dr. Herbik by failing to properly exhaust his

administrative remedies. The Magistrate Judge further concluded that “there is no record

evidence that suggests that [Dr. Saavedra] knew that [Kuehner] faced a substantial risk of

serious harm and disregarded that risk by failing to take reasonable measures to abate it

or that he had any reason to know that [Kuehner] faced any substantial harm.”

(Magistrate Judge’s Report and Recommendation of Oct. 12, 2010, at 19.) On November

17, 2010, the District Court entered an order adopting the Magistrate Judge’s report,

granting P.A. Meyer’s and Dr. Herbik’s joint motion to dismiss, and granting summary

judgment in favor of Dr. Saavedra. Kuehner now appeals from this most recent order.

                                            II.

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

plenary review over a district court’s decision to grant a motion to dismiss or a motion for
                                             4
summary judgment. Gallo v. City of Phila., 161 F.3d 217, 221 (3d Cir. 1998).

       Having reviewed the District Court record, and for substantially the reasons given

by the Magistrate Judge in her October 12, 2010 report, we agree with the District

Court’s disposition of the claims against P.A. Meyer and Drs. Herbik and Saavedra. To

the extent this appeal also challenges the dismissal of Kuehner’s claims against the

Commonwealth Defendants, we conclude that such a challenge lacks merit.2 Because

this appeal does not present a substantial question, we will summarily affirm the District

Court’s November 17, 2010 judgment.3 See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

Kuehner’s motion for appointment of counsel is denied.




       2
         As the Magistrate Judge noted in her October 12, 2010 report, Kuehner procedurally
       defaulted his claim against Administrator Tretinik. As for Secretary Beard and Warden
       Coleman, even if Kuehner were permitted to amend his claims against them so as to
       allege their personal involvement in the incidents at issue here, those claims would still
       fail. Specifically, his claims relating to the incidents involving P.A. Meyer, Dr. Herbik,
       and Administrator Tretinik would, as noted above, be procedurally defaulted, and his
       claims relating to Dr. Saavedra’s treatment would lack merit. See Durmer v. O’Carroll,
       991 F.2d 64, 69 (3d Cir. 1993) (stating that prison officials who are not physicians cannot
       “be considered deliberately indifferent [under the Eighth Amendment] simply because
       they failed to respond directly to the medical complaints of a prisoner who was already
       being treated by the prison doctor.”).
       3
         Kuehner appears to allege that prison officials have retaliated against him for bringing
       this lawsuit. To the extent he wishes to pursue this claim, he would need to file a new
       complaint in the District Court. We express no opinion on the merits of such a
       complaint.
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