PSM-207                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-1463
                                     ___________

                             RUSSELL ALAN LATONA,
                                              Appellant

                                           v.

   PRISON HEALTH SERVICES INC.; RENEE WNEK; SUSAN GEORGE; JOHN
                  DOE#1; JOHN DOE#2; JOHN DOE#3
                ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                      (W.D. Pa. Civil Action No. 07-cv-00001 )
                    District Judge: Honorable Sean J. McLaughlin
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 8, 2010

  Before: FUENTES, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed October 14, 2010)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Russell Latona, proceeding pro se, appeals an order of the United States District

Court for the Western District of Pennsylvania granting summary judgment in favor of
Renee Wnek, Susan George, and Prison Health Services, Inc. in his civil rights action.

Latona claims a violation of his Eighth Amendment rights based on a failure to provide

medication and medical treatment while he was incarcerated. For the reasons discussed

below, we will affirm the judgment of the District Court.1

         The record reflects that Latona arrived at Erie County Prison on October 4, 2006.

At 1:00 a.m. on October 5, 2006, Nurse Renee Wnek did a physical assessment of Latona

and recorded his medical history. Wnek noted AGERD [gastroesophageal reflux

disease],@ Aback pain/knee pain,@ and Ajaw/rib pain@ on his form, recorded six medications

Latona was then taking for pain and psychiatric treatment, and noted a 2000 suicide

attempt and treatment for Abi polar.@ Ex. 4 at 000101-02.2 Wnek also noted that

Latona=s vital signs were normal, that he had fallen at work in August 2006, and that he

had brought copies of his medical records, which she would review in the morning.

Wnek completed a psychiatric referral form and recommended a bottom bunk due to

Latona=s back injury and rib fractures. There is no evidence that Wnek had any further



     1
      As fully described in the Magistrate Judge=s report, this case has a lengthy
procedural history and includes the filing of several amended complaints. Latona had
also brought an Eighth Amendment excessive force claim, which was dismissed, and a
First Amendment freedom of religion claim, which was withdrawn. Latona challenges
only the grant of summary judgment on his medical claims as set forth in his Third
Amended Complaint.
     2
      Latona=s medical records, Exhibit 4 to the defendants= motion for summary
judgment, were filed under seal in District Court. For ease of reference, we will refer to
Ex. 4 and the applicable bates-stamp number.

                                              1
contact with Latona.

       Susan George, a Mental Health Counselor, also met with Latona on October 5,

2006. George=s notes reflect that Latona told her that he needed his medications and that

she intended to follow-up with the treatment team. Latona was placed on regular watch

status, confined in an observation cell, and observed every thirty minutes. Latona=s

housing plan document, which was signed by George, reflects that he would be placed

Aon regular watch until seen for medication stabilization by Dr. Kohn.@ Ex. 4 at 000131.

       The following day, the Mental Health Treatment Team, which included George,

rejected Latona=s request for psychiatric services. The notice provided to Latona stated

that there was Ano reason for psychiatric intervention at this time because: we have not

yet received medical records verifying your reported diagnosis and treatment history.@

Ex. 4 at 000151. In an affidavit submitted in support of her motion for summary

judgment, George attested that the medical records Latona had brought with him were

from December 2005 and did not reflect his current treatment. George also stated that it

was PHS policy that records be retrieved directly from an inmate=s provider.

       Latona completed a medical request form on October 9, 2006, noting that he had

been without his medications for six days. Latona further stated that the records that he

brought with him to the prison did reflect his current medications and his existing injury.

Latona recognized that officials told him they must verify his diagnosis, but he questioned

why officials could not look at his medical records from his prior incarceration at the


                                             2
prison in January 2006.3

         On October 10, 2006, Latona submitted another medical request form stating that

his mental health and medical problems, including esophagitis/reflux and knee, jaw, back,

and rib pain, were getting worse. He wrote that he had been vomiting extremely hard

late at night since October 6 and that he had reflux after each meal. Latona further stated

that he needed his bi-polar medications as soon as possible. Latona also submitted a

second medical request form that day, noting that he had been without his medications for

esophagitis/reflux and his knee, jaw, back, and ribs for one week.

         George met with Latona on October 10, 2006, and made a note to follow-up with

AMedical Records; Inmate signed ROI [release of information] to expedite his services.

Wants back on his psych meds badly.@ Ex. 4 at 000139. That same day, George was

sent an email message from an individual named Bernice Smith stating:

         Mr. Latona got here on 10-05-06 and was seen by MHC on 10-05-06 per
         Dep. Warden Kinnane due to the fact that he was acting peculiar and had a
         prior attempted suicide by hanging in 2000. We >suspected= based upon his
         actions to err on the side of safety (if it was bizarre behavior due to drug
         usage) and I placed him on a withdrawal watch which would give the
         Medical Dept time to obtain his records (Even though he brought his
         records with him and they are in his property bin) and he would be able to
         safely come off of any street drugs that he may have in his system. I then
         saw Mr. Latona on 10-10-06 and he was getting angry due to the fact that
         no one has given him his medications. I re-explained to him that I must put
         him in front of Treatment Team and have him Okayed by Treatment Team

     3
     The record reflects that Latona was incarcerated at the prison in January 2006. His
medical records from his earlier incarceration show his diagnoses with bi-polar disorder
and GERD and the various medications that he was taking at that time.

                                              3
         to see the Psychiatrist once I obtain the medical records. Well, 10/05/06
         was a Thursday, I faxed his records to New York and I didn=t get the
         records back until Monday [October 9] and this Friday is when he will be
         presented to Treatment Team. There is nothing I can do about this and Mr.
         Latona is threatening all kinds of silly things in his Request Slips because
         he thinks that I am ignoring him. I know that he wants his medication, he
         just needs to be patient. I am sure that Treatment Team will approve him
         but I can=t usurp the Treatment Team and place him on Dr. Kohn=s list.

Ex. 4 at 000133.

         On October 11, 2006, a note signed by Nurse Perry stated that Latona had vomited

large amounts of liquid into the toilet and complained of nausea. Latona told the nurse

he had not received his Nexium or psychiatric medications since he arrived. Nurse Perry

noted that Latona had a history of GERD and that he saw George earlier that day. Nurse

Perry wrote that Latona appeared to be a Achronically mentally ill individual in [illegible]

remission. Will try to get him seen medically later today.@ Ex. 4 at 000107.4

         George met with Latona again on October 13, 2006. In her notes, George stated

that the medical department was aware of his recent bodily injuries and that Latona told

her that he vomited all of his food every meal. George noted that Latona wanted to see

the psychiatrist as soon as possible. Although the Mental Health Treatment Team


     4
      On October 12, 2006, Latona received a response to his medical request forms from
a different nurse stating that he had been placed on doctor=s call for his complaint of acid
reflux. On October 13, 2006, Latona completed a medical request form at 11:30 p.m.
stating that he again was getting sick after a meal or at bedtime because of the lack of
medication for his esophagitis/reflux and that his illness had been witnessed by
correctional officers. On October 14, 2006, Latona received a response from another
nurse stating that he would see a doctor on October 23, 2006.

                                                     4
approved Latona for psychiatric services on October 13, 2006, he did not see a doctor

until October 19, 2006, when he was prescribed psychiatric medications and medications

for acid reflux and pain. Latona was released from Erie County Prison on November 4,

2006.

         In order to establish a violation of Latona=s constitutional right to adequate medical

care, evidence must show a serious medical need and acts or omissions by prison officials

that indicate deliberate indifference to that need. Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575, 582 (3d Cir. 2003). Deliberate indifference requires proof that the official

Aknows of and disregards an excessive risk to inmate health or safety.@ Id. (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The official must be Aboth [] aware of

facts from which the inference could be drawn that a substantial risk of serious harm

exists, and . . . draw the inference.@ Id. We have found deliberate indifference where

there was objective evidence that prison officials ignored evidence of a serious need for

medical care and where necessary medical treatment was delayed for non-medical

reasons. Id.

         In granting summary judgment for Wnek and George, the District Court concluded

that their actions did not rise to the level of deliberate indifference.5 The District Court


     5
      Wnek and George appear to concede that Latona=s diagnoses with GERD and
bi-polar disorder and the injuries he sustained in a fall constitute Aserious medical needs.@
 See also Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Cir. 1987) (explaining a medical need is Aserious@ if it is has been diagnosed by a
physician as requiring treatment). We agree with the District Court that the dispositive

                                               5
did not err in concluding that Wnek is entitled to summary judgment. Wnek only took

Latona=s medical history and did a medical screening upon his arrival. There is no

evidence showing that she was aware that he needed immediate medical attention. There

is also no evidence showing that Wnek had any further contact with Latona after his

initial interview or that she played any role in the delay in his treatment.

       We also agree with the District Court that Latona is unable to establish that George

was deliberately indifferent to his mental health needs. Although George had ongoing

contact with Latona during his incarceration and was a member of the Mental Health

Treatment Team apparently responsible for arranging treatment by a doctor, the record

does not reflect that George was aware of a substantial risk of serious harm by the delay

in treatment. George was apprised of the medications that Latona was taking before his

arrival at the prison, but George attested that she did not see Aacute signs of mental

deterioration@ while Latona was on regular watch status. Ex. 2 to Def. Br. in Support of

Motion for Summary Judgment. Absent from the record is evidence demonstrating that

George saw Latona suffering or in distress.




question is whether prison health care providers acted with deliberate indifference in
delaying treatment for these ailments. To the extent Latona pursues a claim based on a
fever he allegedly had when he arrived at prison, we agree with the District Court=s
conclusion that Latona=s fever, which was not present when he met with Wnek, did not
constitute a serious medical need.

                                               6
         We recognize that in her notes of her contacts with Latona on October 5, October

10, and October 13, George did not place Latona Awithin normal limits@ in several

categories of assessment. Ex. 4 at 000137, 000139-140. George also attested that

Latona was paranoid, argumentative, and agitated on October 13, 2006. While we do not

condone the delay in treatment afforded to Latona, we conclude that these medical

records fall short of establishing that George was deliberately indifferent to Latona=s

mental health needs. To the extent Latona also complains that George was deliberately

indifferent to his need for treatment for his physical medical issues, including GERD and

his fall-related injuries, there is no evidence that George, a Mental Health Counselor, was

aware that Latona had been vomiting or was in physical pain. Although Latona

complained to George that he was vomiting, George was at best negligent for not

investigating his complaint with other staff members.6

         To the extent Latona argues in his brief that the District Court erred in denying his

motion to file a Fourth Amended Complaint in order to add Jeffrey Barninger, a Medical

Administrator and member of the Mental Health Treatment Team, as a defendant, Latona

did not aver that Barninger was deliberately indifferent to his medical needs. He only

alleged in his proposed amended complaint that Barninger should have been aware of the


     6
       The District Court also adopted the Magistrate Judge=s recommendation to dismiss
Latona=s claims that PHS failed to adequately train and supervise its employees for failure
to state a claim upon which relief may be granted. Latona does not address these claims
in his opening brief on appeal and they are waived. F.D.I.C. v. Deglau, 207 F.3d 153,
169 (3d Cir. 2000).

                                               7
delays in treatment based on his position. Given the late stage of the litigation and the

inadequacy of these allegations, the District Court did not abuse its discretion in denying

Latona=s motion to amend.7

         Accordingly, we will affirm the judgment of the District Court.




     7
      Because Latona did not state an Eighth Amendment claim against Barninger, we do
not consider the District Court=s additional reasons for denying Latona=s motion for leave
to add him as a defendant. Latona further argues in his brief that the District Court erred
in dismissing the AJohn Doe@ defendants from his complaint, explaining that at the time of
dismissal he had yet to receive responses to his discovery requests regarding the proper
defendants. Even assuming the dismissal was improper, Latona was not prejudiced as he
only sought to add Barninger as a defendant in his proposed Fourth Amended Complaint,
which he filed after the defendants responded to his discovery requests.

                                              8
