                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 10-1956
                                   _____________

                               RONALD MITCHELL,

                                           Appellant

                                         v.

                   KAREN GERSHEN, 1st Shift Supervisor;
                    Dr. SKERL, Doctor, Cresson Infirmary;
                 MARK MCDONELL, P.A., Cresson Infirmary;
              DOUGLAS BOPP, Medical Administrator at SCI Cresson
                             _____________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                                (No. 3-06-cv-00180)
                        District Judge: Hon. Kim R. Gibson

                              Submitted May 11, 2011

           Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                (Filed May 31, 2011)

                                   ____________

                                     OPINION
                                   ____________

CHAGARES, Circuit Judge.

      Ronald Mitchell appeals the District Court‟s grant of summary judgment to

Physician Assistant Mark McConnell on his Eighth Amendment claim that McConnell
acted with deliberate indifference with regard to his foot infection. For the reasons that

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

                                              I.

       We write for the parties‟ benefit and recite only the facts essential to our

disposition. In September 2005, Ronald Mitchell was a prisoner transferred to the State

Correctional Institution in Cresson, Pennsylvania. Mitchell had a medical history of

diabetes and neuropathy and, at the time of transfer, had an ulcer on his right foot. On

January 11, 2006, Mitchell complained to Physician Assistant Mark McConnell that his

foot was giving off a rotting-flesh odor. McConnell, not believing there were any signs

of infection, conducted a foot soak on Mitchell. On January 17 and 24, Mitchell again

brought the odor to McConnell‟s attention and McConnell proceeded with a foot soak.

On January 26, Mitchell saw Dr. Skerl who ordered a culture of the ulcer and

subsequently determined that Mitchell needed surgery. Following surgery, on February

13, Mitchell‟s medical results showed that his foot was infected with Methicillin-

Resistant Staphylococcus Aureus (“MRSA”). Mitchell was then treated with antibiotics.

       On August 14, 2006, Mitchell filed suit pro se against several prison officials,

alleging a claim under 42 U.S.C. § 1983 for a violation of the Eighth Amendment due to

the inadequate and delayed treatment of his foot infection. On February 11, 2010, a

Magistrate Judge issued a Report and Recommendation (“R&R”) that summary judgment

should be granted to the remaining defendant McConnell based, inter alia, on the fact that

Mitchell could not carry his burden of proof to show deliberate indifference without an

expert witness. Despite Mitchell‟s objections to the R&R, the District Court adopted the

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Magistrate Judge‟s recommendation and granted summary judgment to McConnell.

Mitchell filed a timely appeal.1

                                              II.

       Our review of the District Court‟s grant of summary judgment is plenary, and we

apply the same legal standard as it should have. Vitalo v. Cabot Corp., 399 F.3d 536, 542

(3d Cir. 2005). A party is entitled to summary judgment “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). In conducting our analysis, we must view the record in the light most

favorable to Mitchell, and must draw all reasonable inferences in his favor. See Vitalo,

399 F.3d at 542. To defeat summary judgment, however, Mitchell must “produce

admissible evidence containing „specific facts showing that there is a genuine issue for

trial.‟” Id. at 542 (quoting Fed. R. Civ. P. 56(e)).

                                             III.

       The Eighth Amendment, through its prohibition on cruel and unusual punishment,

mandates that prison officials not act deliberately indifferent to a prisoner‟s serious

medical needs by denying or delaying medical care. Estelle v. Gamble, 429 U.S. 97, 104

(1976). In order to sustain a constitutional claim, a prisoner must make (1) an

“objective” showing that the prisoner‟s medical needs were sufficiently serious and (2) a




1
 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction
under 28 U.S.C. § 1291.
                                              3
“subjective” showing that the prison official acted with a sufficiently culpable state of

mind. Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).

       A medical need is considered “serious” when it is “one that has been diagnosed by

a physician as requiring treatment or one that is so obvious that a lay person would easily

recognize the necessity for a doctor‟s attention.” Monmouth County Corr. Inst. Inmates

v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quotations omitted). We have recognized

that the “seriousness of an inmate‟s medical need may also be determined by reference to

the effect of denying the particular treatment.” Id.

       “To act with deliberate indifference to serious medical needs is to recklessly

disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d

Cir. 2009). A prison official can be found liable if the official knows of and disregards

an excessive risk to an inmate‟s health. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

“[T]he official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and [] must also draw the inference.” Id. The

official‟s knowledge of a risk can be shown indirectly by circumstantial evidence. Beers-

Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001). Deliberate indifference, however,

must entail more than mere allegations of malpractice. Monmouth County Corr. Inst.

Inmates, 834 F.2d at 346. “Where a prisoner has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims which sound in state tort

law.” United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir.

1979) (quotations omitted); see also Estelle, 429 U.S. at 106 (“[A] complaint that a

                                             4
physician has been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment.”).

       Mitchell‟s main contention is that the District Court erred in granting summary

judgment by mandating a requirement that he present an expert witness to satisfy his

Eighth Amendment claim. Mitchell maintains that he is not required to present an expert

witness and that the District Court conflated his constitutional claim with the

requirements of a medical malpractice claim. Further, Mitchell argues that an expert

witness is not necessary to establish that he had a serious medical need because

complications with diabetes and exposure to MRSA are known as serious medical needs.

       Mitchell misinterprets the District Court‟s decision. The District Court

acknowledged that generally plaintiffs are not required to provide an expert witness in a

deliberate indifference case, but, in this case, Mitchell could not carry his burden of proof

without an expert witness. Appendix at 14. We have recognized that “[i]n some

situations in which the seriousness of injury or illness would be apparent to a lay person,

expert testimony would not be required.” Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d

Cir. 1987). We agree with the District Court that this is not one of those cases. In order

to sustain his deliberate indifference claim based on his objection to the type of diagnosis

and treatment he received, Mitchell needs to provide the jury with expert testimony

because the ability to diagnose a foot infection and determine the proper treatment and

medication protocol is not readily apparent to lay persons. Similarly, Mitchell needs to

provide the fact finder with expert testimony as to the seriousness of the medical



                                              5
consequences and effects of MRSA2 and foot ulcers. See Montgomery v. Pinchak, 294

F.3d 492, 504 (3d Cir. 2002) (noting that the seriousness of diseases, unlike broken legs

or bullet wounds, are not obvious and ascertainable to a lay person and, hence, require

expert testimony); Boring, 833 F.2d at 473-74 (expert testimony needed to determine if

injury to ulnar nerve or knee disorder was serious).3

       Notwithstanding Micthell‟s lack of expert testimony, we agree with the District

Court that Mitchell failed to meet his burden of showing a genuine issue of material fact

to sustain summary judgment. Mitchell has not provided evidence that either McConnell

knew of the inadequacy of his care and disregarded the risk to his safety, nor has he

presented circumstantial evidence in which an inference could be drawn that a reasonable

person could conclude that McConnell was aware of the substantial risk to Mitchell‟s

health. The record shows that McConnell met with Mitchell on a weekly basis, provided

treatments of foot soaks as directed by Dr. Skerl, and had Mitchell examined by Dr. Skerl

who never recommended antibiotic treatment. At best, a fact finder could conclude that

McConnell was negligent in failing to detect symptoms and diagnose the infection.

Mitchell has failed, however, to present any evidence that McConnell acted with


2
  This is particularly true in light of the fact that we have previously recognized that
“most MRSA skin infections can be treated without antibiotics by draining the sores.”
Kaucher v. County of Bucks, 455 F.3d 418, 421 (3d Cir. 2006).
3
  Mitchell also contends that it would be inappropriate for an expert witness to testify as
to whether McConnell acted with deliberate indifference. We agree. However, there is
no indication that the District Court was requiring such testimony. Mitchell was only
required to provide expert testimony showing how and why McConnell‟s treatments or
lack of treatments contributed to his harms such that a fact finder could conclude that his
actions amounted to deliberate indifference.

                                             6
deliberate indifference. Accordingly, we will affirm the District Court‟s grant of

summary judgment on Mitchell‟s Eighth Amendment claim.

                                           IV.

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




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