DLD-207                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 13-4304
                                 ____________

                           ARTHUR L. HAIRSTON,
                                             Appellant

                                        v.

            DIRECTOR BUREAU OF PRISONS; HARRELL WATTS;
             WARDEN J. L. NORWOOD; WARDEN ALLENWOOD
             LSCI; WARDEN FORT DIX FCI; DR. JAY MILLER; D.
          SPOTTS, AHSA; PHYSICIANS ASST. REGINA HENRY ALI;
             DR. A. LOPEZ; DR. S. SULAYMAN; DR. CHUNG; DR.
            TURNER FOSTER; P.A. SANJANTIN; JOHN NASH; DR.
            RONALD ROSS; UNKNOWN P.A. 1; UNKNOWN P.A. 2
                    __________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civ. No. 1-11-cv-01379)
                  District Judge: Honorable John E. Jones, III
                   __________________________________

      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
                                 March 20, 2014

          Before: SMITH, HARDIMAN and GREENBERG, Circuit Judges

                             (Filed: April 16, 2014)
                                 ____________

                                   OPINION
                                 ____________


PER CURIAM
       Appellant Arthur Hairston, Sr., a federal prisoner, appeals from an order of the

District Court granting summary judgment to the defendants or dismissing his amended

complaint. For the reasons that follow, we will summarily affirm.

       Hairston, a federal inmate, filed a Bivens1 action in the United States District

Court for the Middle District of Pennsylvania, seeking damages based on the alleged

deliberate indifference of numerous prison officials to his medical needs relating to a

long-standing injury to his back. Hairston alleged that he had been denied the pain

medication that he desires, Percocet, a narcotic analgesic, since 2001; that the defendants

have failed to follow a private physician’s recommended course of treatment, that is,

prescriptions for Percocet and surgery; and that he has been denied treatment by a

specialist.

       Early in the litigation, Hairston filed a motion for a preliminary injunction, which

the Magistrate Judge recommended denying. The District Court overruled Hairston’s

objections to the Report and Recommendation and denied Hairston preliminary

injunctive relief, reasoning that he had not established that he would be irreparably

harmed or that he was likely to succeed on the merits of his claims. Hairston appealed,

28 U.S.C. § 1292(a)(1), and we summarily affirmed after reviewing the record and

discerning no error in the District Court’s reasons for denying preliminary injunctive

relief, see C.A. No. 13-4304.

       The defendants moved for dismissal of the amended complaint or for summary

judgment, and submitted numerous medical record exhibits and items summarizing



1
 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).
                                      2
Hairston’s long and complex medical history.2 After Hairston mounted a thorough

defense to the defendants’ motion, the Magistrate Judge recommended that the

defendants’ motion be granted. In an order entered on October 18, 2013, the District

Court overruled Hairston’s objections, adopted the Report and Recommendation, and

awarded summary judgment to the defendants or dismissed the amended complaint under

Rule 12(b).

         Hairston appeals. 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.

Hairston has submitted argument in support of the appeal.

         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. We review

a District Court’s grant of summary judgment de novo. Alcoa, Inc. v. United States, 509

F.3d 173, 175 (3d Cir. 2007). To establish deliberate indifference, see Estelle v. Gamble,

429 U.S. 97, 103 (1976), a prison official must both know of and disregard an excessive

risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). To

state a constitutional claim, the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he or she must

also draw the inference. See id. 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.


2
    Hairston’s prison medical records exceed 1100 pages, according to the defendants.
                                              3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (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).

       Hairston’s Eighth Amendment claim of deliberate indifference rested on an

allegation that the defendants – going back to 2001 when he was first incarcerated –

should have treated his back pain with Percocet because that is how it was treated by his

private physician before he went to prison. The Magistrate Judge thoroughly

summarized the care that Hairston has received at three separate federal prisons since he

was incarcerated in 2001. The facts are largely undisputed. Hairston has severe

degenerative lumbar disc disease. He needs medication to manage his pain, and he needs

physical therapy. He may someday need surgery, but only if the disease progresses.

Prior to being incarcerated, he managed his pain to his satisfaction with Percocet, but

prison medical staff have declined to give him Percocet. The ban on narcotic analgesics

is not absolute: records shows that Hairston has received Tylenol with Codeine for brief

periods of time when his pain is acute; but, as a general matter, his medical caretakers

prefer to treat his back pain with non-narcotic pain medication and physical therapy.

Hairston does not always cooperate with the prescribed treatments.

       The summary judgment evidence reveals that Hairston has received medical care

for his back condition that satisfies the Eighth Amendment. Among other things, prison

medical staff have endeavored to relieve Hairston’s back pain by frequently adjusting his

medications; educating him on pain management and relaxation techniques; providing

him with physical therapy and Range-of-Motion exercises; putting him on a weight

                                              4
reduction plan; and giving him injections of Toradel, a nonsteroidal, anti-inflammatory

drug, for his pain. Hairston has undergone x-rays and MRIs, and he has been seen

regularly at the Chronic Care Clinic, which includes an orthopedic clinic. He was even

referred to, and evaluated by, a neurosurgeon.

       “[P]rison authorities are accorded considerable latitude in the diagnosis and

treatment of prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1979).

“Certainly, no claim is presented when a doctor disagrees with the professional judgment

of another doctor. There may, for example, be several ways to treat an illness.” White v.

Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). No claim of deliberate indifference is made

out where a significant level of care has been provided, and all that is shown is that the

prisoner disagrees with the professional judgment of a physician, or that a different

physician has in the past taken a different approach to the prisoner’s treatment. In

Hairston’s case, there is a dispute over pain medication, and Hairston wants only a

narcotic analgesic and is resistant to other ways to manage his pain. The defendants’

treatment of Hairston reflects their professional medical judgment that long-term use of a

narcotic analgesic is not appropriate for him and Hairston has provided no support for his

contention that their approach (which they called conservative) amounts to deliberate

indifference. Even if Hairston established for purposes of summary judgment that there

are other acceptable ways to treat his pain, see White, 897 F.2d at 110, this still falls short

of showing that the defendants here are disregarding an excessive risk to his health or

safety. Farmer, 511 U.S. at 825. The District Court properly determined that there was




                                              5
no genuine dispute as to any material fact and that the defendants were entitled to

judgment as a matter of law. Fed. R. Civ. Pro. 56(a).3

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

granting summary judgment to the defendants or dismissing the amended complaint.

Hairston’s motion to exceed the page limit and to submit attachments with his argument

in support of appeal is granted.




3
  Hairston actually sued numerous defendants. The District Court dismissed the Bureau
of Prisons on the basis of the doctrine of sovereign immunity, and dismissed certain other
New Jersey defendants for lack of personal jurisdiction. In addition, the District Court
dismissed numerous defendants because they had no personal involvement in Hairston’s
medical care, and certain other defendants were dismissed because the claims against
them either were untimely under the applicable statute of limitations or had not been
administratively exhausted. We agree that dismissal of these defendants pursuant to Fed.
R. Civ. Pro. 12(b) was proper.
                                              6
