      CLD-213                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 11-1483
                                    ___________

                             FRANKLIN D. FENNELL,
                                                             Appellant

                                          v.

        CARL DANBERG; THOMAS CARROLL; DALE RODGERS;
 IHOMA CHUCKS; ADMINISTRATIVE ASSISTANT TO THE COMMISSIONER;
        MAJOR JAMES SCARBOROUGH; NURSE PRACTITIONER;
    NURSE ASSISTANT QUANNI; CORRECTIONAL MEDICAL SERVICES
                ____________________________________

                   On Appeal from the United States District Court
                             for the District of Delaware
                          (D.C. Civil No. 1-09-cv-00163)
                    District Judge: Honorable Sue L. Robinson
                    ____________________________________

        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
                                   June 16, 2011
             Before: RENDELL, FUENTES and SMITH, Circuit Judges

                            (Opinion filed : July 7, 2011)
                                    _________

                                     OPINION
                                     _________

PER CURIAM

      In March 2009, Franklin D. Fennell, an inmate at the James T. Vaughn

Correctional Center (“VCC”) in Smyrna, Delaware sued a defendant not named above for
injuries he purportedly incurred in prison in 2005 because of lack of adequate medical

care. The District Court dismissed the complaint on screening as time-barred, but, noting

that Fennell suggested that another party delayed or denied him medical treatment at

another time, allowed amendment.

       Fennell submitted an amendment in which he added four of the defendants listed

above for related claims that accrued either in 2005 or at unspecified times. The District

Court stated that it appeared that some of the claims were barred by the statute of

limitations and again dismissed the complaint. The District Court again granted Fennell

leave to amend; the District Court directed Fennell to include the date or dates of alleged

constitutional violations in his amendment.

       Fennell filed a second amended complaint, naming all of the listed defendants.1

His general claim was that these defendants were deliberately indifferent to his serious

medical needs because they did not provide adequate care and treatment after he became

infected with Methicillin-resistant Staphylococcus aureus (“MRSA”) and contracted

type-2 diabetes.    He specifically registered complaints about his treatment, or lack

thereof, relating to the alleged MRSA infection in 2005 and 2006, but, as to some

defendants, he complained that issues with his medical care continued into 2007.

       As to defendant Danberg, Fennell claimed that Danberg did not implement

procedures to monitor inmates‟ care, and that “numerous correspondences” alerted

Danberg to problems with care Fennell was receiving. Similarly, Fennell alleged that the

       1
         As the District Court noted, although “nurse practitioner” is listed separately in the
caption, the title actually modifies the name of one of the defendants.


                                              2
former warden, Carroll, did not put in place procedures to monitor contractual medical

services providers (despite Fennell making him aware of the providers‟ insensitivity to

the MRSA problem) and failed to adequately supervise staff.

      Fennell alleged that Scarborough failed to implement procedures to stop staff from

interfering with his medical treatment. He claimed that he wrote Scarborough many

times about staff‟s interference, but Scarborough returned grievances as “non-grievable.”

Fennell also contended that his medical treatment was inadequate because correctional

staff informed medical staff about what he could not have in his housing unit (including

physical therapy and “constant showers or exercise”).

      Fennell claimed that Rodgers “failed to adequately supervise and train staff and

put in place procedures so that [Fennell] would receive medically appropriate care.” He

also alleged that Rodgers placed him in a housing unit with the knowledge that the

environment would not be appropriate in light of his medical issues. He claimed that

Rodgers abruptly cancelled his pain medication on June 8, 2007. She allegedly also

denied him the opportunity to bathe more frequently after an operation and prevented him

from having follow-up care with an outside specialist.

      Fennell sued Chuck, a nurse practitioner at VCC, for failing to adequately treat his

conditions, preventing him from seeing a physician, failing to order or take appropriate

tests when Fennell presented with MRSA symptoms, and cancelling medications ordered

by a specialist. Fennell also brought claims against Quanni, a nurse assistant at VCC,

who purportedly was late with medication and formed a personal dislike of Fennell.

Fennell alleged that Quanni ordered correctional officers to take Fennell‟s wheelchair

                                            3
from him in the exercise yard when he was pushing it in front of him. Fennell also

named two other defendants without making factual allegations against them.

       On screening pursuant to 28 U.S.C. §§ 1915A & 1915(e)(2), the District Court

dismissed the claims against all the defendants but Rodgers and Scarborough. The

District Court dismissed two defendants because Fennell named them without bringing

claims against them. The District Court also dismissed the claims against Danberg,

Carroll, Chuck, and Quanni because Fennell did not include dates related to allegations

against them.     Additionally, the District Court ruled that Fennell‟s claims against

Danberg and Carroll were inappropriately based on a theory of respondeat superior.

       The District Court subsequently denied Fennell‟s motion for appointment of

counsel. Ultimately, Rodgers and Scarborough each moved for summary judgment. The

District Court granted their motions and entered judgment in their favor. Fennell appeals

and asks us to appoint counsel for him. Rodgers and Scarborough have each filed a

motion to request that we summarily affirm the District Court‟s judgment.

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

Court‟s sua sponte dismissal of some of the claims is plenary, as is our review of the

rulings on the defendants‟ motions for summary judgment. 2 See Allah v. Seiverling, 229


       2
        Although Fennell only designated the order granting judgment in favor of Rodgers and
Scarborough in his notice of appeal, his appeal from the final judgment in this case brings into
question the earlier orders dismissing the claims against the other defendants and denying
appointment of counsel. Cf. Pacitti by Pacitti v. Macy‟s, 193 F.3d 766, 776-77 (3d Cir. 1999).
At this pre-briefing stage, we have only the notice of appeal from which to interpret Fennell‟s
intent. However, the earlier orders are related to the order granting judgment in favor of the
remaining defendants and could not be appealed earlier because the final judgment rule barred
review. See Pacitti by Pacitti, 193 F.3d at 777. Furthermore, we review the earlier orders after
concluding that the defendants are not prejudiced. See id.
                                               4
F.3d 220, 223 (3d Cir. 2000); Abramson v. William Paterson College, 260 F.3d 265, 276

(3d Cir. 2001). We review for abuse of discretion an order denying the appointment of

counsel. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). Upon review, we will

summarily affirm the District Court‟s judgment because no substantial issue is presented

on appeal. See Local Appellate Rule 27.4; 3d Cir. I.O.P. 10.6.

       The District Court properly granted judgment in favor of Rodgers. In support of

her summary judgment motion, Rodgers presented Fennell‟s medical records, which

showed that Fennell never had the MRSA infection on which so many of his claims were

based. The records belie any claim that Rodgers personally, or by policy, procedure, or

failure to train, interfered with Fennell‟s medical care. Instead, they detail the history of

appropriate and aggressive care that Fennell received for his other medical conditions.

Also, one entry showed that Rodgers was not the doctor who stopped Fennell‟s pain

medication (and that stopping the pain medication was medically appropriate, partly in

light of a statement by Fennell at the time). Although Fennell complained about his

housing placement (or Rodgers‟s role in his housing placement), the records support

Rodgers‟s claim that Fennell was housed in the infirmary when medically necessary and

released into the regular population (with its schedule of baths and exercise) when

medically indicated (and recommended by the specialists who were caring for him). In

addition, the medical records support the proposition that at no time did Rodgers prevent

Fennell from seeing a specialist when a specialist‟s visit was warranted. In addition,

Fennell presented nothing to controvert the evidence that Rodgers submitted (Fennell did

not respond at all to the motion for summary judgment).

                                             5
       The District Court also properly granted judgment in favor of Scarborough. First,

to the extent that Fennell sought damages from Scarborough in his official capacity,

Scarborough was immune to suit. See Will v. Mich. Dep‟t of State Police, 491 U.S. 58,

71 (1989).    Second, in support of his motion for summary judgment, Scarborough

submitted a sworn statement in which he averred that, at all relevant times, (1) he did not

know Fennell; (2) his duties did not include implementing procedures relating to requests

for medical treatments; (3) he was not personally involved in the grievance process or

any of Fennell‟s grievances; and (4) he was not personally involved in the matter

described in the complaint.     In response, Fennell merely argued that Scarborough

“blatantly lied in reference [to] not being in charge of area.” His claim was not evidence

to controvert Scarborough‟s statements. (Furthermore, Scarborough stated that he was

“in charge of the area” in that he noted that he was responsible for daily security

operations and that his duties included “directing and controlling the correctional staff in

the maintenance of security, order, and discipline of the facility.”) As the District Court

concluded, a reasonable jury could not find that Scarborough was personally involved in

Fennell‟s claims.

       The District Court also did not err in dismissing Fennell‟s other claims. Fennell

listed two defendants (and asserted two statutory causes of action) without making any

related allegations.   At least some of the claims against Danberg and Carroll were

brought on an improper respondeat superior theory. See Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988).

       Also, some claims against all of the named defendants were obviously time-

                                             6
barred. When the affirmative defense of statute of limitations, see Fed. R. Civ. P. 8(c), is

obvious from the face of the complaint and no development of the record is necessary, a

court may dismiss a time-barred action sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim. See, e.g., Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006).

Fennell‟s claims pursuant to 42 U.S.C. § 1983 were subject to Delaware‟s two-year

statute of limitations for personal injury actions. See Kost v. Kozakiewicz, 1 F.3d 176,

189-90 (3d Cir. 1993); Napier v. Thirty or More Unidentified Fed. Agents, Employees or

Officers, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988); see also 10 Del. C. § 8119. Those

claims based on injuries that purportedly occurred in 2005 and 2006 are clearly time-

barred.

       Furthermore, in light of the undisputed evidence in the record, we can affirm the

judgment because all of Fennell‟s remaining Eighth Amendment claims were without

merit. See Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988) (holding

that we may affirm on an alternative basis supported by the record). “Only „unnecessary

and wanton infliction of pain‟ or „deliberate indifference to the serious medical needs‟ of

prisoners [is] sufficiently egregious to rise to the level of a constitutional violation.”

Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Violations include the intentional

infliction of pain on a prisoner; the denial of reasonable requests for medical treatment

where the denial exposes the prisoner to undue suffering or the threat of tangible residual

injury; and the intentional refusal to provide care in cases where the need for medical

care is known. Id. The medical condition must be serious; and the prison officials must

be deliberately indifferent to it. Id. at 235-36. However, neither claims of medical

                                             7
malpractice nor a disagreement about a course of treatment establishes a constitutional

violation. Id. at 235.

       As noted above, there is no evidence in the record that Fennell ever had a MRSA

infection. There is, however, evidence that Fennell‟s other medical conditions were

carefully and consistently treated (ultimately, the last specialist‟s report from the relevant

time frame included the notation that Fennell‟s wound had almost completely healed and

that there was no evidence of recurrence of the problem). At most, Fennell presented a

disagreement with the course of treatment for his other medical ailments. For example,

he complained about not being able to use his wheelchair as an assist when he was

exercising, but there are notes from a discussion between Fennell and Rodgers (after

Fennell again consulted with a specialist) about discontinuing the use of his wheelchair.

Similarly, in the record, there is Fennell‟s June 2009 letter to his surgeon in which he

asks for an additional course of care so that he can compel the prison to provide more

treatment, and the response from the specialist that no additional surgical care is

indicated.

       In addition, we conclude that the District Court did not abuse its discretion when it

denied Fennell‟s counsel motion. The District Court considered the appropriate factors,

see Tabron, 6 F.3d at 155-56, and concluded that Fennell demonstrated an ability to

present his claims and requests for relief without the assistance of counsel.

       For these reasons, we grant the motions for summary affirmance filed by Rodgers

and Scarborough, and we will affirm the District Court‟s judgment. Fennell‟s motion for

appointment of counsel is denied.

                                              8
