GLD-082                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-1917
                                  ___________

                            JAMES R. ANDERSON,
                                            Appellant

                                        v.

                 SUPERINTENDENT DAVID DIGUGLIELMO;
                     SGT. PAULIN, Correction Sergeant;
                    C.O. HANNIBAL, Correction Officer;
                 CAPTAIN STRICKLAND, Correction Captain;
                        PRISON HEALTH SERVICES;
                   DR. FELIPE A. ARIAS, Medical Director;
                            SUE FINDLEY, Nurse
                  ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                           (D.C. Civil No. 06-cv-02798)
                 District Judge: Honorable Edmund V. Ludwig
                  ____________________________________

      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
                                 January 6, 2011
        Before: AMBRO, CHAGARES AND NYGAARD, Circuit Judges

                        (Opinion filed: January 20, 2011)
                                   _________

                                   OPINION
                                   _________

PER CURIAM

    James Anderson, proceeding pro se, appeals from the District Court’s order
granting Defendants’ motions for summary judgment. For the reasons that follow, we

will affirm the District Court’s judgment.

       The record reflects that on May 10, 2005, around 11:00 p.m., Anderson, a prisoner

at the State Correctional Institution in Graterford, Pennsylvania, suffered a severe

headache. He informed Officer Randall of his severe headache when she passed his cell

while conducting inmate count, around 11:10 p.m. Around 11:15 p.m., Randall called

Nurse Findley, and informed her of Anderson’s complaints, and Findley instructed

Randall to bring him to the dispensary. Randall also relayed this information to the

Operations Sergeant, Paulin, who told her he would escort Anderson to the dispensary

after count. This decision was approved by Strickland. Randall checked on Anderson

again, around 11:20 p.m. Shortly after Randall left, Anderson began to vomit; he

grabbed his boot and banged on his cell windows, breaking them, in order to get some

help. Paulin and Officer Hannibal ordered Anderson to lie on the floor as they entered

his cell. They handcuffed him, cleaned him off, carried him down a stairway, placed him

in wheeled trash cart to move him down the cell block, then carried him up a stairway to

be placed in a wheelchair. 1 Anderson arrived at the dispensary around 12:05 a.m.

       Findley assessed Anderson. She found him alert and oriented, complaining of

severe headache and vomiting. Findley advised Dr. Arias, the on-call physician, that

Anderson’s blood pressure was elevated, around 12:20 a.m. Based on Findley’s

assessment, Arias prescribed medications for Anderson’s nausea, pain, and elevated

blood pressure. At 12:40 a.m., Findley contacted Arias again to inform him that the




                                             2
medication had not kicked in, and he told her to continue treatment; Anderson was

admitted to the infirmary2 around 1:30 a.m. When Arias arrived at the prison on May 11,

2010, he examined Anderson. He noted neurological symptoms and had Anderson

transferred to Temple University Hospital at 8:30 a.m. Anderson was treated there for a

subarachnoid hemorrhage. He was discharged on May 16, 2006, and has fully

recovered.3

       In this civil rights action, Anderson alleges that: (1) Paulin and Hannibal used

excessive force in transporting him from his cell to the wheelchair and were deliberately

indifferent to his medical needs by ignoring his cries of pain and intentionally delaying

his access to medical care by failing to transport him to the infirmary in a timely manner,

due, in part, to the inmate count; (2) Superintendent Digugielmo and Strickland

deliberately and indifferently delayed his access to adequate medical treatment due to

policies and procedures of prohibiting movement of a prisoner during inmate count,

instituted by Diguglielmo and enforced by Strickland; (3) Findley was deliberately

indifferent to his medical needs and delayed his medical treatment by refusing to order

that Anderson be taken immediately to the prison infirmary or that he be transferred to an

outside medical facility; (4) Arias was deliberately indifferent to his medical needs and


   1
    Anderson weighed nearly 200 pounds.
   2
    Findley testified that the dispensary acts as a mini-emergency room, where the
   patient is assessed, while the infirmary is an inpatient unit with 25 beds.
   3
     When he began to vomit, Anderson began to drift in and out of
   consciousness. He concedes that he does not know what happened from
   the time he was lying on the floor of his cell until he was at Temple University
   Hospital.

                                             3
delayed his medical treatment by refusing to transfer him to an outside medical facility;

and (5) Prison Health Systems (“PHS”), through its training and policies of prohibiting

transfer of an inmate to an outside facility without the approval of PHS’s medical

director, was deliberately indifferent to his medical needs by failing to provide adequate

medical treatment in a timely manner. Defendants ultimately filed motions for summary

judgment, which were granted. 4 Anderson filed a timely appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over an order granting summary judgment. Beers-Capitol v. Whetzel, 256 F.3d 120, 130

& n.6 (3d Cir. 2001). Summary judgment is granted when “there is no genuine issue as

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

Fed. R. Civ. P. 56(c)(2). We will view the facts in the light most favorable to the

nonmoving party. Whetzel, 256 F.3d at 130 n.6.

       A.     Deliberate Indifference

       For the delay or denial of medical care to rise to a violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment, a prisoner must

demonstrate (1) that defendants were deliberately indifferent to his medical needs, and

(2) that those needs were serious. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

       Deliberate indifference requires proof that the official “knows of and disregards an

excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318

F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).


   4
    By Order enter October 30, 2008, the District Court dismissed Anderson’s
   negligence claims against Findley and Arias because Anderson failed to file

                                              4
We have found deliberate indifference where the prison official knows of a prisoner’s

need for medical treatment but intentionally refuses to provide it, delays necessary

medical treatment based on a non-medical reason, or prevents a prisoner from receiving

needed or recommended medical treatment. Rouse, 182 F.3d at 197.

         Claims of medical malpractice do not constitute deliberate indifference. Estelle v.

Gamble, 429 U.S. 97, 105-06 (1976); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).

Deference is given to prison medical authorities in the diagnosis and treatment of

patients, and courts “disavow any attempt to second-guess the propriety or adequacy of a

particular course of treatment . . . [, which] remains a question of sound professional

judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)

(quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). A non-medical prison

official cannot be charged with deliberate indifference as to medical treatment absent a

reason to believe that prison medical authorities are mistreating or failing to treat a

prisoner. Spruill, 372 F.3d at 236. Here, as the District Court correctly concluded, none

of the defendants acted with deliberate indifference towards Anderson’s serious medical

needs.

         As soon as Randall was informed of Anderson’s headache, she contacted Findley,

who advised that Anderson be sent to the dispensary; Findley did not state that Anderson

required immediate attention. Paulin and Hannibal did not delay Anderson’s access to

medical care, as they attended to Anderson when he began to smash his cell windows,

regardless of the inmate count, and brought him to the dispensary within an hour of his


   a Certificate of Merit in accordance with Pa. R. Civ. P. 1042.3.

                                              5
initial complaint to Randall, in reliance on Findley’s assessment that Anderson’s severe

headache was not an emergency. The record shows that the policy and procedures did

permit movement of a prisoner during the inmate count if there was a life threatening

emergency.5 Anderson’s complaints of severe headache, however, did not qualify as a

life threatening medical emergency.

       Based on the information initially given to her by Officer Randall, regarding

Anderson’s complaints of severe headache, Findley was not deliberately indifferent to

Anderson’s medical needs for failing to order that he be immediately taken to the prison

infirmary, nor did she disregard an excessive risk to his health because she did not order

that he be transferred to an outside medical facility. Arias was not deliberately

indifferent to Anderson’s medical needs, as he ordered that Anderson be transferred to

Temple University Hospital as soon as he observed a possible neurological problem. The

record shows that Findley could have transferred Anderson to an outside medical facility

without the approval of PHS’s medical director.6

       B.     Excessive Force

       In reviewing an excessive force claim, we must determine “whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and


   5
    Diguglielmo, Paulin, and Strickland testified to this policy. No evidence was
   presented to contradict their testimony.
   6
     Findley testified that she can and has transferred inmates to outside
   medical facilities without the approval of a physician in an emergency
   situation, which was supported by Arias’ testimony. No evidence was
   presented to contradict their testimony.


                                              6
sadistically to cause harm.” Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000)

(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In determining whether excessive

force was used, we look to several factors, including: (1) the need for the application of

force; (2) the relationship between the need and the amount of force that was used; (3) the

extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as

reasonably perceived by responsible officials on the basis of the facts known to them; and

(5) any efforts made to temper the severity of a forceful response. Brooks v. Kyler, 204

F.3d 102, 106 (3d Cir. 2000).

        We agree with the District Court that handcuffing Anderson was not unreasonable

because Anderson had broken several windows. The officers’ decision to place the

nearly 200 pound Anderson, who was drifting in and out of consciousness, in a wheeled

trash cart to transport him to the wheelchair that took him to the dispensary also was not

unreasonable under the circumstances. There was no evidence that Anderson was

harmed as a result of the method by which he was transported from his cell to the

dispensary.

        After reviewing the District Court pleadings and considering the arguments raised

in Anderson’s informal brief, we conclude that the District Court properly granted

defendants’ motions for summary judgment. Accordingly, we will affirm the District

Court’s order.7




   7
       Anderson’s motion to proceed on the original record is granted.

                                               7
