                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________
                              No. 13-1246
                             ___________

                             RODNEY BOOMER,
                                       Appellant

                                       v.

  Sgt. HARRY LEWIS; POLICE OFFICERS JOHN DOE; JOHN DOE, U.S. Federal
  Marshals; JOHN DOE, Doctor & Head RN; DAVID P. CHERUNDOLO, Attorney;
DONTE, Warden, Lackawanna County Jail; JOHN DOE, Doctor & Physician Assistant,
 Pike County Jail; JANE DOE, Pike County Jail; POCONO MOUNTAIN REGIONAL
  POLICE DEPARTMENT; PRIME CARE; Nurse Administrator PATTI BUNTING;
LT. CAPOS; RN BILL CHECHO; CHIEF DIRECTOR PRIME CARE; CHIEF OF U.S.
 FEDERAL MARSHALS; CORRECTION OFFICER COLUMBIA; Sgt. DEMARCO;
  Warden JANINE DONATE; DUSM B.J. FLATER; Nurse Administrator BARBRA
   FOX; Correction Officer FORREST FRANCIS; Lt. GATTUSO; DUSM HOLST;
      DUSM JENKINS; ER Dr. JOHN DOE of Mercy Hospital; RN KATHY; Lt.
 KUMBURIS; Chief JOHN P. LAMBERTON; MS. LASTARZA; Warden CRAIG A.
    LOWE; JEFFREY LUTZ; PIKE COUNTY JAIL; CSO POWELL; CHIEF OR
  DIRECTOR PRIME CARE; MICHAEL RICE; MICHAEL E. ROBSON; Assistant
Warden ROMANCE; Correction Officer SCHWARTZ; DUSM SEWALL; Correctional
  Officer SHAPPERT; DANIEL SMELAS; DR. WILLIAM SPRAGUE; RICHELLO
 STAPLETON; RN SUSIN; Lt. WALSH; Sgt. FRANK YAUORASKI; Dr. ZAGATO
                     ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                     (D.C. Civil Action No. 3:06-cv-00850)
                  District Judge: Honorable Robert D. Mariani
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                August 26, 2013
             Before: RENDELL, FISHER and GARTH, Circuit Judges

                        (Opinion filed: August 26, 2013)
                                 ___________
                                        OPINION
                                       ___________

PER CURIAM

       We write primarily for the parties, who are familiar with the background of this

case, so we will discuss the facts only as they are necessary to our analysis.1 In short,

Rodney Boomer sued more than 35 defendants relating to incidents that occurred at the

time of his arrest, during a hospital visit, and during his imprisonment. After initial

motions practice, several groups of defendants remained in the case – the Pocono

Mountain Regional Police Department (“PMRPD”) defendants;2 the Lackawanna County

Prison (“LCP”) Medical defendants; LCP Officers; PrimeCare Medical, Inc., and its

employees (who provided health care services at the Pike County Correctional Facility

(“PCCF”)); PCCF Nurses; and the other PCCF defendants. Each group filed a motion for

summary judgment. A Magistrate Judge issued a lengthy report and recommendation, to

which Boomer and some of the defendants objected. The District Court reviewed the

matter in a lengthy opinion and granted judgment in favor of most of the defendants. The


1
  A brief summary of Boomer’s claims is as follows: (1) that he was denied adequate
medical care for his epilepsy and injuries resulting from epileptic seizures; (2) that he was
retaliated against for his legal activities; (3) that he was issued fabricated misconduct
reports and criminal charges; (4) that he was assaulted; (5) that his attorney provided his
confidential medical records to federal marshals; (6) that he was strapped in a restraint
chair; (7) that he was forced to do tasks beyond his physical ability; and (8) that he was
exposed to chemical agents that were sprayed near his cell.
2
 For convenience, we will use the nomenclature used by the District Court for each
group of defendants.


                                              2
District Court denied, in part, the other PCCF defendants’ motion, slating for trial three

claims relating to an incident that occurred in July 2006 (specifically, an excessive force

claim against defendants Francis and Schappert, a claim arising from the use of a

restraining chair brought against defendant Campos, and a retaliation claim against

defendant Schappert). The District Court appointed counsel and presided over a jury

trial. After the jury rendered its verdict, the District Court entered judgment in favor of

the defendants, and against Boomer, on the final three claims.

       Boomer appeals. He raises a challenge to the District Court’s ruling on the

summary judgment motions, arguing that the District Court should not have construed

Local Rule of Court 56.1 Statements of Material Facts as undisputed because Boomer did

not specifically respond to them. He explains that he relied on his verified second

amended complaint and exhibits he submitted to oppose the motions. Boomer contends

that a review of his filings will show that the District Court erred in granting the motions

for summary judgment.3 Also, in regards to the jury verdict, he maintains that he should

have been provided with video surveillance of the July 2006 incident to use at trial and

objects to, or wishes to counter, testimony provided by witnesses at his trial.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Preliminarily, we consider the

other PCCF defendants’ argument that we should dismiss Boomer’s appeal that relates to

the jury verdict because he did not provide for a transcript in compliance with Local


3
 Although his informal brief is not a model of clarity, we do not agree with the
defendants who state that Boomer waived all arguments on appeal. However, we
conclude that all issues but those we list have been waived, including, as defendant

                                              3
Appellate Rule 11.1. Although Defendants are correct that failure to comply with the

transcript rule “constitutes grounds for dismissal of the appeal,” 3d Cir. L.A.R. 11.1, a

dismissal for a failure to comply with a procedural rule is disfavored. See Horner Equip.

Int=l, Inc. v. Seascape Pool Ctr., Inc., 884 F.2d 89, 93 (3d Cir. 1989). Upon weighing the

relevant factors, including the willfulness of the rule violation and the prejudice suffered

by the opposing party,4 see id., we decide not to dismiss the appeal or impose sanctions;

instead, we will consider Boomer’s appeal on the merits.

       As for Boomer’s argument that he should have been provided the video

surveillance, we first note that Boomer’s efforts to obtain the tapes ultimately resulted in

the District Court’s ordering the defendants to provide “all surveillance tapes regarding

the incident of July 7, 2006.” Order of May 30, 2012 (ECF No. 651). Although Boomer

later requested a trial continuance on the basis that he needed further discovery, at that

point, counsel for the defendants represented that “all existing discovery materials have

been produced.” Order of Jan. 8, 2013 (ECF No. 671); see also Letter of Nov. 28, 2012

(ECF No. 669) (“[I]t has been represented to the Court that Remaining Defendants have

produced the surveillance tapes . . . subject to the Order[] issued . . . on May 30, 2012.”)



Maritato asserts, any challenge to the order granting his motion to dismiss.
   4
     In particular, we note that Boomer did make an attempt to obtain the transcript, ECF
No. 697, albeit not within 14 days after filing his notice of appeal and without depositing
the estimated cost or explicitly seeking to have it provided without charge. No one in the
District Court ever responded to his request. Also, we note that the defendants suffered
minimal prejudice in defending the appeal, as Boomer’s issues are not strictly based on
the transcript (for instance, his main “trial” claim is a claim about discovery that predated
the trial).


                                              4
Furthermore, Boomer, himself, stated that at least some of the incident was out of “the

sight of the housing unit security cameras.” See, e.g., “Motion requesting new

appointment of counsel . . . .” at ¶ 6 (ECF No. 245). For these reasons, we conclude that

his claim that he was not provided with available videotapes is without merit.

       We also reject Boomer’s other claims related to the trial. Essentially, he points out

(albeit without providing the transcript) testimony that he believes is “strange” or false.

However, it is for the jury to determine the credibility of witnesses. United States v.

Boone, 279 F.3d 163, 189 (3d Cir. 2002). Even if a witness contradicts or alters his or

her testimony, the testimony still can be sufficient to establish a point. See id.

       We turn to Boomer’s objections to the grant of summary judgment. District courts

must be careful that their application of local rules governing the grant of summary

judgment remains consistent with the provisions of federal rules and the dictates of the

Supreme Court. See Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175

(3d Cir. 1990). However, in this case, application of Local Rule of Court 56.1 or no, the

District Court properly granted summary judgment in favor of the other defendants

because there was no genuine issue of material fact remaining for trial. See Abramson v.

William Patterson Coll., 260 F.3d 265, 276 (3d Cir. 2001) (explaining that our review is

plenary and that we apply the same standard that the District Court applies); see also Erie

Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988) (holding that we may affirm on

an alternative basis supported by the record).




                                              5
         We have reviewed the record, including Boomer’s verified complaint and

exhibits5 (and the hundreds of pages that Boomer requested that we consider, see, e.g.,

Informal Brief at 8, even though they were not filed in response to the summary judgment

motions in question and which the District Court had no obligation to sift through in

deciding those motions, cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)

(“Judges are not like pigs, hunting for truffles buried in briefs.”)). Upon review, and for

the reasons given in the Magistrate Judge’s report and the District Court’s opinion, we

agree with the District Court that Boomer did not show more than a disagreement about

his course of treatment in relation to the LCP Medical defendants. Such mere

disagreement, of course, is not an actionable constitutional violation. See Monmouth

Cnty. Corr. Inst’l Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).

         There was no genuine issue of material fact relating to whether Boomer showed an

actionable constitutional violation against the other LCP defendants, either, for the

reasons given by the Magistrate Judge and the District Court, at times with reference to

Boomer’s deposition testimony. See, e.g., Sandin v. Conner, 515 U.S. 472, 484 (1995)

(explaining that state-created interests are generally limited to freedom from restraint that

imposes “atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life”); Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)

(explaining that a non-medical defendant cannot be considered deliberately indifferent for

failing to respond directly to the medical complaints of a prisoner already under the care


5
    We note that the District Court also considered Boomer’s verified complaint and its

                                              6
of a prison doctor); see also, e.g., ECF No. 454-2 at 23 (Boomer dep.) (conceding that he

was not injured when he was removed from the hospital and stating that the correctional

officer “was just doing his job”).

       Regarding the PMRPD defendants, we agree with the District Court that summary

judgment in favor of defendant Lamberton was proper. See C.H. v. Oliva, 226 F.3d 198,

201 (3d Cir. 2000) (“[A] defendant in a civil rights case cannot be held responsible for a

constitutional violation which he or she neither participated in nor approved.”). Also, the

rest of the PMRPD defendants could not be held liable for deliberate indifference to

serious medical needs where it is undisputed that the defendants promptly called an

ambulance when Boomer (who has a seizure disorder) had a seizure and where it was

undisputed that they did not interfere with his treatment by paramedics. We also agree

with the District Court’s resolution of the “handcuff claim” based on how it was

presented in this case.

       We also conclude that summary judgment in favor of PrimeCare Medical, Inc.,

and its employees was proper. As the District Court noted, Boomer has a medical

condition for which he needs care and included claims about delays and difficulties in

receiving treatment. Some of his claims, like his disagreement with the medical

judgment about his ability to perform physical tasks, are clearly not bases for suit. See

Monmouth Cnty. Corr. Inst’l Inmates, 834 F.2d at 346. Similarly, whether or not

Boomer was hoarding medicine, the requirement that he take his medication in crushed


exhibits.

                                             7
form instead of other forms is a dispute about a treatment decision that is not actionable

as a constitutional violation in this case. See id. What is undisputed is that he received

medication. Also, the defendants put forth evidence, which Boomer did not controvert,

regarding his many visits to outside specialists. Without repeating the entire analysis but

while noting the Magistrate Judge’s and District Court’s statements about the need for

further evidence or an expert’s opinion about the effect of any delays in referrals to

specialists and the like, we conclude that summary judgment in favor of PrimeCare

Medical, Inc., and its employees was proper on the record.

       Boomer claimed that the PCCF Nurses were deliberately indifferent to his serious

medical needs by, inter alia, denying him proper treatment, allowing his move to a

housing unit far from the medical station, clearing him for physical activities beyond his

capacity, and crushing his medications. However, Boomer, himself, in his verified

complaint, describes medical treatment he received from these defendants. And the

defendants provided evidence about the medical attention Boomer received. Although

there may be evidence of a dispute between Boomer and defendants as to what treatment

was appropriate, there is not evidence in the record from which a reasonable trier of fact

could conclude that the defendants were deliberately indifferent.6 Accordingly, and for




6
 Also, as the PCCF Nurses point out in their brief, there is a limit to what treatment they
are allowed to provide under Pennsylvania’s Professional Nursing Law, 63 P.S. § 211 et
seq. See, e.g., 63 P.S. § 212(1) (disallowing “medical diagnosis or prescription of
medical therapeutic or corrective measures”).


                                             8
the reasons given in the District Court, judgment in favor of the PCCF Nurses was

proper, too.

       The District Court also properly granted judgment in favor of the other PCCF

defendants on the claims that did not go to trial. PCCF, itself, to the extent Boomer was

suing the facility, is not a “person” within the meaning of 42 U.S.C. § 1983. See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Fischer v. Cahill, 474 F.2d 991, 992

(3d Cir. 1973). Furthermore, as to the claims against the other defendants, the

defendants, in assigning Boomer a housing unit or a task or in shackling him in an

ordinary manner, were not obligated to second-guess the medical judgments of those

whose care Boomer was under.7 Cf. Durmer, 991 F.2d at 69. Also, and for the reasons

the District Court set forth in greater detail, there is not a genuine issue of material fact

regarding the other deliberate indifference claims in light of the evidence that Boomer got

medical care, including medications, treatment by prison medical staff, and visits to

outside specialists. See, e.g., Monmouth Cnty. Corr. Inst’l Inmates, 834 F.2d at 346.

Mere verbal harassment or abuse is not a civil rights violation. See Oltarzewski v.

Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). The claim against defendant Francis about

the spitting incident failed in light of Boomer’s guilty plea regarding that incident. The

due process claims regarding Boomer’s disciplinary confinement fail for the reasons

given by the District Court. Also, although Boomer believes that a chemical agent used


7
 We also note that when medical restrictions were imposed on Boomer’s duties, he was
no longer obligated to perform them.


                                               9
near his cell twice triggered seizures, he did not controvert the defendants’ evidence that

they did not know that there was a risk of harm to him from using that agent.

       For the reasons we have discussed, as well as those relied on by the District Court,

we hold that the District Court properly granted the defendants’ motions for summary

judgment. Also, as we explained above, Boomer’s claims about the trial and jury verdict

are without merit. For these reasons, we will affirm the District Court’s judgment.8




8
 The PCCF Nurses, the other PCCF defendants, and defendant Gerard Maritato filed
motions to supplement the appendix. We grant their motions.

                                             10
