                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3161
                                      ___________

                                SHANNON BOWMAN,
                                            Appellant

                                            v.

                   SENIOR CORRECTIONAL OFFICER MAZUR;
                     DR. DANIEL LEONARD, Clinical Director;
                               WARDEN J. YOST
                     ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                        (D.C. Civil Action No. 08-cv-00173 )
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 9, 2011

       Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: July 6, 2011)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Pro se appellant, Shannon Bowman, appeals from the order of the United States

District Court for the Western District of Pennsylvania entering judgment in favor of
appellees and dismissing his complaint. For the reasons that follow, we will affirm the

District Court‟s judgment.

                                            I.

      Since the facts underlying the instant appeal are well-known to the parties, only a

summary is provided here. In August 2008, Bowman, a prisoner currently housed at

USP-Terre Haute, submitted a complaint in the United States District Court raising a

claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971). Bowman, who is a diabetic, apparently experienced a hypoglycemic

event (e.g., shaking in bed) on January 2, 2007, while housed in the Segregated Housing

Unit (“SHU”) at FCI-Loretto. Corrections Officer Mazur brought food to Bowman‟s cell

to address his low blood sugar. Unfortunately, Bowman fell while getting off of the top

bunk to get the food and injured himself. Bowman alleges that Officer Mazur, Dr. Daniel

Leonard, the Clinical Director at FCI-Loretto, and Warden J. Yost (collectively referred

to as the “BOP Appellees”) ignored the fact that he was medically entitled to a bottom

bunk, and thus violated his Eighth Amendment right by their deliberate indifference in

assigning him to a top bunk when he was placed in the SHU on December 21, 2006.

Bowman claims that he suffered a “severe back injury” as a result of the fall, and sought

in excess of $2,000,000 in compensatory and punitive damages.

      After the close of discovery, the BOP Appellees filed a motion for summary

judgment together with a brief and concise statement of material facts in support. After

having been granted an extension of time, Bowman filed his response and opposition.
                                            2
The Magistrate Judge to whom the complaint was referred thereafter issued a Report and

Recommendation that the BOP Appellees‟ motion for summary judgment be granted.

The Magistrate Judge initially concluded that summary judgment in favor of the BOP

Appellees was warranted on account of Bowman‟s failure to dispute their statement of

material facts. Despite having provided Bowman a directive regarding his need to

comply with Local Rule 56.1.C.1 and comprehensive instructions on how to go about

fulfilling that obligation, Bowman nonetheless failed to cite to specific portions of the

record in support of his responsive concise statement of fact. The Magistrate Judge thus

concluded that Bowman failed to create a genuine issue of material fact with respect to

the BOP Appellees‟ record evidence that they lacked the deliberate indifference mindset

required by Farmer v. Brennan, 511 U.S. 825, 837 (1994), to make out an Eighth

Amendment claim.

       The Magistrate Judge further determined that, even accepting Bowman‟s

statement of material facts and denials as true, the BOP Appellees were nonetheless

entitled to summary judgment. The Magistrate Judge concluded that there was no

evidence in the record to establish the subjective prong of an Eighth Amendment claim

given Bowman‟s failure to show that defendants knew he had a “lower bunk restriction”

and/or believed that such a restriction was medically necessary.

       Over Bowman‟s objections, the District Court adopted the Report and

Recommendation. The District Court rejected Bowman‟s excuse that a lack of

understanding of the court‟s local rules resulted in his deficient response to the BOP
                                              3
Appellees‟ concise statement of material facts. The court thus found no unfairness in the

Magistrate Judge‟s recommendation that summary judgment be granted in favor of the

BOP Appellees based on Bowman‟s failure to comply with Local Rule 56.C., nor did the

court find any error in the Magistrate Judge‟s alternative merits analysis. Accordingly, it

adopted the Report and Recommendation as the opinion of the court, and granted

summary judgment in favor of the BOP Appellees. This timely appeal followed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court‟s grant of summary judgment is plenary and we must affirm if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there is no

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). A genuine issue of material fact is one that could change the outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       After a careful review of the record and the parties‟ briefs on appeal, we discern

no error in the District Court‟s grant of summary judgment in favor of the BOP

Appellees. As noted previously, because Bowman failed to file a proper response to the

BOP Appellees‟ statement of material facts in accordance with the District Court‟s Local

Rule of Court 56.C, the District Court deemed Appellees‟ statement of material facts to

be admitted pursuant to its Local Rule of Court 56.E. We have recognized that such a
                                              4
local rule is permissible so long as the District Court also conducts a merits review and

renders a finding that judgment for the moving party is “appropriate” in accordance with

Federal Rule of Civil Procedure 56. See Anchorage Assocs. v. V.I. Bd. of Tax Review,

922 F.2d 168, 175 (3d Cir. 1990). Because the District Court conducted a merits analysis

and Bowman has not challenged this aspect of the District Court‟s decision, we will not

disturb its decision to deem the BOP Appellees‟ statement of material facts as

undisputed.1

       This determination is actually of little import in the instant case, however, as we

agree with the District Court‟s conclusion that, even accepting Bowman‟s responsive

statements and denials themselves as true, the record in this case is woefully deficient of

any evidence indicating that the BOP Appellees acted with deliberate indifference in

assigning him to a top bunk in the RHU. The principles for establishing a prisoner‟s

Eighth Amendment claim were established by the Supreme Court in Estelle v. Gamble,

429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1994), and require a prisoner


1
    Even affording Bowman‟s filings a liberal construction, we conclude that any such
challenge has been waived insofar as it has not been so much as mentioned in his pro se
informal opening brief. An appellant is “required to set forth the issues raised on appeal
and to present an argument in support of those issues in [his] opening brief.” Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993); see Fed. R. App. P. 28(a)(5), (9). “It is
well settled that an appellant‟s failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222
(3d Cir. 2005). The instant appeal presents no circumstances which counsel against
application of that rule. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008) (per curiam) (“While we read briefs filed by pro se litigants liberally, issues not
briefed on appeal by a pro se litigant are deemed abandoned.” (internal citations
omitted)).
                                             5
to allege a sufficiently serious medical need – the objective component – and deliberate

indifference by prison officials in response to that need – the subjective component.

       The BOP Appellees do not dispute that Bowman‟s insulin-dependent diabetic

condition amounts to a serious medical need within the meaning of the Eighth

Amendment, see Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.

2003), and Bowman has been receiving care for that condition during his period of

incarceration. The BOP Appellees also do not dispute that a “lower bunk” pass, which

had been issued back in September 2002 in response to Bowman‟s complaints of frequent

night-time urination, was eventually located in Bowman‟s medical file during the

administrative appeal process that subsequently took place. The record is, however,

deficient of evidence demonstrating that the BOP Appellees were deliberately indifferent

to a medical need associated with Bowman‟s diabetic condition when they failed to

assign him to a lower bunk upon his transfer to the SHU more than four years after the

issuance of that lower bunk restriction.

       In addition to Dr. Leonard‟s understanding that there is no medical policy

requiring diabetics to have a bottom bunk assignment and no awareness on his part that

Bowman‟s diabetic condition made a bottom bunk a medical necessity at the time of the

January 2007 incident, see Appellees‟ Supp. App. at 73, 85, 100, the BOP Appellees

stated that Bowman‟s file had been searched upon his request for a lower bunk

assignment and no such pass was found. See Supp. App. at 121. Even if Dr. Leonard

was negligent in failing to see the possibility that Bowman‟s condition carried with it the
                                             6
need for a bottom bunk assignment in 2006-2007, “[i]t is well-settled that claims of

negligence or medical malpractice, without some more culpable state of mind, do not

constitute „deliberate indifference.‟” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

Additionally, we cannot say that Appellees Mazur and Yost were deliberately indifferent

to Bowman‟s need for a bottom bunk restriction as a result of, perhaps, their mere

negligence in searching his prison file, especially where his treating physician was of the

opinion that no such restriction was medically necessary. See Spruill v. Gillis, 372 F.3d

218, 236 (3d Cir. 2004). Accordingly, the grant of summary judgment was appropriate.

                                            III.

       Based on the foregoing, we will affirm the District Court‟s judgment.2




2
    Bowman‟s motion to amend the complaint is denied.
                                             7
