DLD-181                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-4025
                                     ____________

                                   JOHNNIE DAVIS,
                                                Appellant
                                         v.

                         PRISON HEALTH SERVICES, INC.;
                 DR. RICHARD STEFANIC; JOSEPH C. KORSZNIAK;
                      SUPT. MICHAEL WENEROWICZ, Sued in
                      their official and private/individual capacities
                        __________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 2-11-cv-07458)
                          District Judge: Eduardo C. Robreno
                       __________________________________

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
          or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    February 21, 2014

           Before:   SMITH, HARDIMAN and GREENBERG, Circuit Judges

                             (Opinion filed: March 10, 2014)
                                     ____________

                                       OPINION
                                     ____________


PER CURIAM
          Appellant Johnnie Davis, a state prisoner, appeals from an order of the District Court

granting summary judgment to the defendants. For the reasons that follow, we will summarily

affirm.

          Davis, an inmate at the State Correctional Institution at Graterford, Pennsylvania (“SCI-

Graterford”), filed a civil rights action, 42 U.S.C. § 1983, in the United States District Court

for the Eastern District of Pennsylvania against Prison Health Services, Inc. (“PHS”), Dr.

Richard Stefanic, Health Care Administrator Joseph C. Korszniak, and Superintendent Michael

Wenerowicz, alleging a violation of his right to be free from cruel and unusual punishment

under the Eighth Amendment. Davis, a long-time diabetic, saw Dr. Stefanic for routine

medical care on May 2, 2011, after which Dr. Stefanic discontinued his diabetes medication,

Glucotrol, without notifying him or consulting with him. Davis submitted a grievance to

prison authorities on or about July 5, 2011, in which he stated that he had suffered a stroke as a

result and in which he demanded that his Glucotrol be restored.              That grievance was

unsuccessful. Davis further alleged in his complaint that, on July 22, 2011, he suffered a

second stroke, and “some loss of motor control,” which he attributed to high blood sugar.

Davis claimed that Dr. Stefanic abruptly discontinued his Glucotrol and “attempted to kill

him,” Complaint, at ¶ 22, all in order to save money for PHS. Davis alleged that PHS provides

financial incentives to its physicians to deny proper medical treatment to prisoners, and he

alleged that Dr. Stefanic’s sole reason for discontinuing his medication was to reap a financial

benefit for himself and PHS. Davis sought money damages.

          In support of his claims, Davis attached to his complaint a photocopy of drug

information relating to sulfonylureas, a class of drugs (including Glucotrol) used to treat

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diabetes, which stated, among many other things, that “the dose may require gradual reduction

if you have taken [the] drug for a long time.” He also attached portions of a copy of what

purported to be a 2007 contract between PHS and the Department of Corrections. Davis

highlighted certain paragraphs of this contract, including one which stated that any cost savings

relating to “Outside Medical Services” would be shared equally between PHS and the

Department of Corrections. Davis also attached copies of his grievance, and his appeals

relating to it.

        Shortly after filing his complaint, Davis moved for appointment of counsel and for

appointment of a medical expert to assist him. These requests were denied by the District

Court without prejudice. Later, Davis asked the District Court to permit a fellow inmate to

assist him and this request was granted. Pursuant to the defendants’ motions, the District Court

then dismissed Davis’ medical malpractice claim for failure to file a certificate of merit as

required by state law, see Pa. R. Civ. Pro. 1042.3(a); Liggon-Redding v. Estate of Sugarman,

659 F.3d 258, 264-65 (3d Cir. 2011) (certificate of merit statute is substantive state law and

must be applied by federal court), and dismissed his claims against Administrator Korszniak

and Superintendent Wenerowicz in their official capacities as barred by the Eleventh

Amendment, which immunizes States and their agencies from suits for damages in federal

court, see Pennhurst State School v. Halderman, 465 U.S. 89, 100-02 (1984).1 The defendants

then took Davis’ deposition and moved for summary judgment on his remaining Eighth

Amendment claims against the Commonwealth defendants in their individual capacities and

1
 The District Court correctly determined that these claims could not survive a Fed. R. Civ.
Pro. 12(b)(6) motion to dismiss.

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against the medical defendants. Following the filing of the summary judgment motion, the

District Court held a status conference and ordered the Commonwealth defendants to produce

all of Davis’ medical records, and ordered Davis to then respond to the summary judgment

motion. The District Court denied Davis’ renewed request for appointment of counsel and a

medical expert because his deposition testimony suggested that his claims lacked arguable

merit.

          The Commonwealth defendants moved for reconsideration of the discovery order,

arguing that the court’s order was burdensome and expensive. The defendants asserted that

Davis had been an inmate at SCI-Graterford since 1984, that his medical records consisted of 4

volumes totaling approximately 2500 pages, and that Davis’ claims pertained only to the

treatment of his diabetes in 2011. Moreover, Davis and his inmate assistant had taken the

opportunity to review Davis’ entire file at the Graterford Medical Department, and the Medical

Records Supervisor had offered to copy any part of the record that Davis requested. Davis

opposed reconsideration and demanded his entire medical record. The District Court ordered

the defendants to identify with specificity those medical records that were relevant to Davis’

lawsuit. In response, the defendants identified 215 pages of lab reports, physical examinations,

notes, treatments, consultation records, physicians’ order forms, progress notes, glucose

monitoring flow sheets, and medication administration records, all pertaining to Davis’

treatment for diabetes in 2011. The District Court then ordered the defendants to produce only

these records. Following the District Court’s resolution of the medical records discovery issue,

the action was stayed temporarily because Davis advised the court that he had suffered a heart

attack.

                                               4
       When the case resumed, the defendants were ordered to refile their motions for

summary judgment. Davis’ deposition and six pages of medical records were submitted in

support of the defendants’ motions. In pertinent part, the medical defendants argued that there

was no genuine issue of material fact relating to whether they were deliberately indifferent to

Davis’ medical needs because Dr. Stefanic did nothing more than exercise his medical

judgment with respect to whether Davis continued to need medication to treat his diabetes.

Even if his judgment was incorrect, the defendants argued, “the management of diabetes is a

medical judgment and any alleged mismanagement is akin to medical malpractice.”

Defendants’ Memorandum of Law in Support of Motion for Summary Judgment, at 11. In

addition, the defendants asserted that, on July 22, 2011, the day Davis allegedly suffered a

stroke, he went to work in the Weave shop which has no air conditioning unit. He passed out

and woke up with slurred speech.       He was taken to the infirmary, where he was given

hydration and he recovered quickly. The defendants further argued that Davis’ allegations

regarding a financial motive for discontinuing his Glucotrol were conclusory.

       Davis filed a cross-motion for summary judgment and a response in opposition to the

defendants’ motions for summary judgment. In support, he attached the same items that he

submitted with his complaint and he also submitted his deposition. Davis did not attach any

additional medical records to his motion or his written opposition.

       In an order entered on September 16, 2013, the District Court awarded summary

judgment to the defendants, determining that there was no genuine issue of material fact

concerning whether either Dr. Stefanic or PHS had been deliberately indifferent to Davis’

serious medical needs. The District Court reasoned that Davis pointed to no evidence in the

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summary judgment record to support his claims. In addition, the Commonwealth defendants

had shown that they were not personally involved in any constitutional violations and liability

under section 1983 cannot be predicated on a theory of respondeat superior.

       Davis appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted him

leave to appeal in forma pauperis and advised him that the appeal was subject to summary

dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4

and I.O.P. 10.6.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Summary

judgment is proper where the summary judgment record “shows that there is no genuine

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

Fed. R. Civ. Pro. 56(a). 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, 247 (1986).    The moving

parties have the initial burden of identifying evidence that they believe shows an absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Moreover,

we are required to view the facts in the light most favorable to the non-moving party, and make

all reasonable inferences in his favor. See Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d

Cir. 1994). Ultimately, however, “[w]here 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).

       Deliberate indifference to serious medical needs is a violation of the Eighth Amendment

and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97 (1976). To act with

                                               6
deliberate indifference is to recklessly disregard a substantial risk of serious harm. Farmer v.

Brennan, 511 U.S. 825, 836 (1994). Because the standard is recklessness, “prison officials

who actually knew of a substantial risk to inmate health or safety may be found free from

liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”

Id. at 844. Mere disagreements over the type or amount of care provided do not state an Eighth

Amendment claim. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).

       The six pages of medical records that the defendants submitted with their summary

judgment motion revealed that Davis was seen in the prison infirmary on July 22, 2011. He

came in with slurred speech but was given hydration and he soon recovered. The health care

professional who treated him wrote that a “heat stroke” should be ruled out. In addition, a

progress note written by Dr. Stefanic on May 2, 2011 confirmed that Davis was taken off

Glucotrol. A Glucose Monitoring Flow Sheet provided Davis’ blood sugar test results from

July 14, 2011 to August 22, 2011, including these specific test results: July 14 - 219 mg%;

July 17 - 110 mg%; July 18 - 114mg%; July 20 - 122 mg%; and July 22 - 124 mg%. Last, a

Physician’s Order Form signed by Dr. McDonald, who is not a defendant here, showed that she

ordered that Davis be put back on Glucotrol on July 12, 2011.

       Summary judgment for the defendants was proper here because Davis failed to point to

any evidence in the record to support his allegation that the discontinuation of his Glucotrol

caused him to suffer two strokes or that the decision to discontinue his medication was

motivated by greed. He pointed to nothing in the summary judgment record to show anything

more than that he suffered a single episode of either heat exhaustion, or possibly heat stroke,

approximately 10 days after Dr. McDonald restored his Glucotrol on July 12, 2011. Moreover,

                                               7
his medical records show that, although his blood sugar level on July 14, 2011 was 219 mg%,

by July 17, 2011 it was down to 110 mg%, and on the day that he passed out, July 22, 2011, it

was 124 mg%. On July 20, 2011, two days before he passed out, it was 122 mg%. At no time

did Davis allege that these latter lab values were dangerously high. In his deposition, Davis

testified that, between the time that Dr. McDonald restored his Glucotrol and July 22, 2011, the

date he passed out, his blood sugar was dangerously high: “It was high. It was going up. * * *

I … take finger sticks every day and when I stick my finger, the machine tells you what it is

and it was 200, 250,” N.T., at 32; but this testimony is contradicted by the Glucose Monitoring

Flow Sheet contained in his medical records.

      In short, Davis’ personal opinion about what happened to him and why it happened is

not competent evidence sufficient to defeat the medical defendants’ motion for summary

judgment.   Matsushita Elec. Indus. Co., 475 U.S. at 587.        Moreover, the “contract” he

submitted showing that any cost savings relating to “Outside Medical Services” would be

shared equally between PHS and the Department of Corrections is insufficient to permit a jury

to conclude that Dr. Stefanic’s decision to discontinue his Glucotrol was improperly motivated

by greed. All of the complaint’s references to cost-saving practices are conclusory and, as

such, cannot suffice to defeat a properly supported motion for summary judgment.

      In addition, although Davis argued that he was entitled to all of his medical records, the

District Court did not abuse its discretion in limiting his access to only those medical records

pertaining to the relevant time period, Fed. R. Civ. Pro. 26(b)(1). The District Court also

properly exercised its discretion in denying Davis’ motion for appointment of counsel, Tabron

v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (case must have some merit in fact and law before

                                               8
appointment of counsel is warranted), and in denying his request for appointment of a medical

expert at public expense, see id. at 159 (indigent litigants generally must bear their own

litigation expenses).

       Davis’ Eighth Amendment claim of deliberate indifference against the Commonwealth

defendants rested on an allegation that Administrator Korszniak and Superintendent

Wenerowicz failed to order the restoration of his Glucotrol in response to his grievance.

Durmer v. O’Carroll, 991 F.2d 64 (3d Cir. 2002), holds that correctional defendant-

administrators who were not themselves physicians cannot “be considered deliberately

indifferent simply because they failed to respond directly to the medical complaints of a

prisoner who was already being treated by the prison doctor.” Id. at 69. See also Spruill v.

Gillis, 372 F.2d 218, 236 (3d Cir. 2004) (“If a prisoner is under the care of medical experts . . .,

a non-medical prison official will generally be justified in believing that the prisoner is in

capable hands.”). In Spruill, we held that “absent a reason to believe (or actual knowledge)

that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical

prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of

deliberate indifference.”   Id.    Spruill applies here because Davis did not show that the

Commonwealth defendants’ involvement in the matter consisted of anything more than

reviewing his grievance and deferring to the judgment of medical personnel.

       For the foregoing reasons, we will summarily affirm the order of the District Court

granting summary judgment to the defendants.




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