                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2008

Ordonez v. Yost
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4286




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                                                        NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ___________

                             No. 06-4286
                             ___________

                         MIGUEL ORDONEZ,
                                                    Appellant

                                   v.

                JOHN YOST, Warden, FCI Loretto;
            JACK HERON, Assistant Warden, FCI Loretto;
      DANIEL J. LEONARD, MD., Clinical Director, FCI Loretto;
JEFFREY G. TRIMBATH, PA-C, Health Services Administrator, FCI Loretto;
 UNKNOWN MEMBERS OF THE UTILIZATION REVIEW COMMITTEE
             ____________________________________

             On Appeal from the United States District Court
                for the Western District of Pennsylvania
                         (D.C. No. 03-cv-00169)
               District Judge: Honorable Kim R. Gibson
              ____________________________________

             Submitted Pursuant to Third Circuit LAR 34.1(a)
                             July 25, 2008

        Before: AMBRO, FUENTES and FISHER, Circuit Judges.

                        (Filed: August 12, 2008 )
                              ___________

                              OPINION
                             ___________
PER CURIAM

       Appellant, Miguel Ordonez, proceeding pro se, appeals from the District Court’s

order granting Appellees’ motion to dismiss, in part, and granting Appellees’ motion for

summary judgment, in part. For the reasons that follow, we will affirm.

       In March 1999, Appellant, Miguel Ordonez, suffered a knee injury while confined

at the Federal Correctional Complex at Coleman, Florida (“FCC-Coleman”). Health

officials at FCC-Coleman evaluated Appellant’s knee by way of an X-ray, MRI, and

consultation with an orthopedic physician. The MRI revealed tears of the medial and

lateral menisci in his left knee. Appellant alleges that the reviewing doctors at FCC-

Coleman recommended corrective knee surgery. Before the surgery could be scheduled,

Appellant was transferred to the Federal Correctional Institution at Loretto, Pennsylvania

(“FCI-Loretto”). A request for a consultation with an orthopedic surgeon was submitted

to FCI-Loretto’s Utilization Review Committee (“U.R.C.”), but was denied. Instead,

Appellant has been provided with a knee brace and Motrin.

       After unsuccessfully pursuing administrative relief, Appellant filed an action in the

District Court pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971). The District Court dismissed the action for failure to

state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A. Appellant appealed. We vacated the District Court’s order and remanded the




                                             2
action, holding that Appellant’s complaint was sufficient to survive § 1915(e)(2)(B)

analysis. (C.A. No. 03-4080.)

       On remand, Appellant filed an amended complaint. In response, Appellees filed a

motion to dismiss, or, in the alternative, a motion for summary judgment. The Magistrate

Judge recommended granting the motion to dismiss as to Appellee Yost and Appellee

Heron, and recommended granting the summary judgment motion as to the remaining

defendants. The District Court issued a memorandum order, adopting the

recommendation and disposing of the matter. Appellant appeals.

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

plenary review over the District Court’s dismissal pursuant to Fed. R. Civ. P. 12(b)(6).

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). We “accept all factual allegations

in the complaint as true and give the pleader the benefit of all reasonable inferences that

can be fairly drawn therefrom.” Id. Our review of the District Court’s order granting

summary judgment is also plenary. Kreimer v. Bureau of Police for Town of Morristown,

958 F.2d 1242, 1250 (3d Cir.1992). Summary judgment may be granted only where

“there is no genuine issue as to any material fact and . . . the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       Appellees’ motion in the District Court was titled “motion to dismiss, or, in the

alternative, a motion for summary judgment.” The District Court did not give Appellant

notice that it was considering the motion for summary judgment. We have held that it is



                                               3
reversible error for a district court to convert a motion under Fed. R. Civ. P. 12(b)(6) into

a motion for summary judgment without proper notice to the parties. See Castle v.

Cohen, 840 F.2d 173, 179-80 (3d Cir. 1988); Davis Elliott Int’l, Inc. v. Pan Am.

Container Corp., 705 F.2d 705, 706-08 (3d Cir. 1983); Crown Cent. Petroleum Corp. v.

Waldman, 634 F.2d 127, 129 (3d Cir. 1980); Bryson v. Brand Insulations, Inc., 621 F.2d

556, 559 (3d Cir. 1980). In Appellant’s response to the motion, however, he addressed it

as both a motion to dismiss and a motion for summary judgment.1 He also attached an

affidavit to the response; accordingly, Appellant was aware that the motion could be

treated as a summary judgment motion and was not prejudiced by the District Court’s

failure to provide formal notice. In his response, Appellant failed to produce any

evidence showing Appellees’ decision to treat his knee by non-surgical means was

medically inappropriate. Appellant also failed to produce any evidence showing that the

Appellees’ decision to treat his injury by non-surgical means was motivated by non-




       1
        Appellant filed two motions for extension of time to file his response. Instead of
granting or denying Appellant’s motions, the Magistrate Judge waited until beyond the
date that Appellant had requested for the extension, filed the Report and
Recommendation and denied Appellant’s motions as moot. Appellant then filed his
response. The Magistrate Judge entered an order stating that he had reviewed Appellant’s
untimely brief and that his Report and Recommendation remained unchanged. The
District Court’s order refers to Appellant’s brief. Accordingly, the District Court properly
considered Appellant’s brief prior to rendering its decision.

                                              4
medical reasons.2 Accordingly, the District Court properly granted the motion for

summary judgment.

       Furthermore, although the District Court arguably erred in granting Appellees’

motion to dismiss, we will nonetheless affirm. Appellant’s complaint alleged that, as

members of the U.R.C., Yost and Heron were part of the decision-making unit that

determined his medical care. Additionally, Appellant asserted that the decision to deny

him surgery was influenced by monetary concerns. We have held that deliberate

indifference is proven if necessary medical treatment is delayed for non-medical reasons.

Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).

Although Appellant’s complaint arguably states a claim for relief, the District Court could

have treated Appellees’ motion as one for summary judgment, particularly because

Appellant responded to it as such and the record is complete. As stated previously,

Appellant has failed to produce any evidence showing that the Appellees’ decision to

treat his injury by non-surgical means was motivated by non-medical reasons or that non-

surgical treatment was medically inappropriate. Appellee Yost and Appellee Heron are

therefore entitled to summary judgment.

       Finally, we briefly note that Appellant’s complaint alleges that Appellees violated

the Equal Protection Clause and the Due Process Clause by failing to recommend surgery


       2
         Appellees assert that surgery is unnecessary in light of Appellant’s apparent
ability to engage in sports activities (per his own request to engage in those activities), as
well as his noncompliance with his treatment plan (failing to wear the knee brace).

                                               5
on his knee. Both claims are without merit. Appellant fails to assert that he is a member

of a suspect class, and he has failed to prove that the distinction, if any, between his

medical treatment and other inmates’ medical treatment was not reasonably related to a

legitimate state interest. See Tillman v. Lebanon County Corr. Facility, 221 F.3d 410,

423 (3d Cir. 2000). Appellant’s due process claim is identical to his Eighth Amendment

claim; he must bring the claim pursuant to the more explicit constitutional amendment.

Graham v. Connor, 490 U.S. 386, 395 (1989).

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




                                              6
