                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 08-3434
                                   _____________

                                DARREN JOHNSON,

                                          Appellant

                                            v.

                           DOCTOR STEMPLER;
                         DOCTOR DENNIS MOYER;
                      COMMISSIONER MARTIN HORN;
                      PRISON HEALTH SERVICES, INC.;
                  CORRECTIONAL PHYSICIAN SERVICES, INC.

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (Civ. No. 2-00-cv-00711)
                      District Judge: Hon. Bruce W. Kauffman

                             Argued: September 30, 2009

                Before: McKEE and CHAGARES, Circuit Judges, and
                         NYGAARD, Senior Circuit Judge

                           (Opinion filed: March 31, 2010)

SU MING YEH, ESQ. (Argued)
ANGUS R. LOVE, ESQ.
Pennsylvania Institutional Law Project
718 Arch Street, Suite 304-S
Philadelphia, PA 19106
Attorneys for Appellant, Darren Johnson



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ALAN S. GOLD, ESQ. (Argued)
Gold & Ferrante, P.C.
261 Old York Road, Suite 526
Jenkintown, PA 19046
Attorney for Appellees, Dennis Moyer, M.D.,
and Prison Health Services, Inc.

KENNETH S. FAIR, ESQ.
Naulty, Scaricamazza & McDevitt, LLC
1617 JFK Boulevard, Suite 750
Philadelphia, PA 19103
Attorney for Appellee, Dr. Norman Stempler

THOMAS W. CORBETT, JR., ESQ.
Attorney General of the Commonwealth
of Pennsylvania
CLAUDIA M. TESORO, ESQ.
Senior Deputy Attorney General
CALVIN R. KOONS, ESQ.
Senior Deputy Attorney General
JOHN G. KNORR, III, ESQ.
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Attorneys for Appellee, Martin Horn
                                    OPINION

McKEE, Circuit Judge.

       Darren Johnson, a state prisoner, appeals: (1) the district court’s grant of Martin

Horn’s Fed.R.Civ.P. Rule 12(b)(6) motion to dismiss an Eighth Amendment claim

asserted against him by Johnson; (2) the district court’s grant of summary judgment to

Drs. Moyer and Stempler on an Eighth Amendment claim asserted against them by

Johnson; (3) the district court’s denial of two of Johnson’s motions for appointment of

counsel; and (4) the district court’s denial of Johnson’s Fed.R.Civ.P. 60(b)(2) motion.



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For the reasons that follow, we will affirm the district court’s grant of Horn’s motion, the

district court’s grant of summary judgment to Drs. Moyer and Stempler and the district

court’s denial of two of Johnson’s motions for the appointment of counsel. However, we

will vacate the district court’s denial of the Rule 60(b)(2) motion and remand for

proceedings consistent with this opinion.

                                             I.

       Inasmuch as we are writing primarily for the parties who are familiar with this

case, we need not recite the factual or procedural background of this case, except insofar

as is helpful to our discussion.

                                            A.

       Johnson makes a number of arguments in challenging the district court’s dismissal

of his complaint. First, he contends that the district court erred in granting summary

judgment to Drs. Moyer and Stempler on his Eighth Amendment claim.1 We disagree. In



       1
        The Eighth Amendment, through its prohibition of cruel and unusual punishment,
imposes a duty on prison officials to provide humane conditions of confinement,
including adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
violation of the Amendment occurs when (1) a medical need is serious and (2) the acts or
omissions by prison officials demonstrate “deliberate indifference” to the inmate’s health
or safety. See Id., at 106; Monmouth County Corr. Institutional Inmates v. Lanzaro, 834
F.2d 326, 346 (3d Cir. 1987). The Supreme Court has clarified this “deliberate
indifference” standard, explaining that is a subjective test, meaning the official must
actually know of and disregard an excessive risk to the health of the inmate. Farmer v.
Brennan, 511 U.S. 825, 829 (1994).
        A medical need will be considered “serious” if 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.” Lanzaro, 834 F.3d at 347.

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its thorough and well-reasoned opinion, dated January 5, 2005, the district court explained

why Drs. Moyer and Stempler were entitled to judgment as a matter of law on Johnson’s

Eighth Amendment claim. 2005 WL 119575 at *3-5. We can add little, if anything, to

the district court’s analysis and discussion. Accordingly, we will affirm the dismissal of

Johnson’s Eighth Amendment claim against those doctors substantially for the reasons set

forth in the opinion of the district court.

                                              B.




       Under Estelle, deliberate indifference is present when prison officials intentionally
deny or delay access to necessary medical treatment for non-medical reasons, or when
they interfere with a course of treatment once prescribed. Estelle, 429 U.S. at 104-05;
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Medical judgments by doctors or
prison officials that later prove inappropriate or negligent, however, are not alone
sufficient to give rise to an Eighth Amendment claim. See Estelle, at 106-07. Stated
simply, inadequate medical practice is not a constitutional violation. Id. Accordingly,
even when some medical care is administered by officials that arguably falls below the
generally accepted standard of care, that medical care is generally sufficient to rebut
accusations of deliberate indifference and preclude a finding of an Eighth Amendment
violation. See, e.g., Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.
1990) (stating that prison officials and doctors will be given wide latitude to address the
medical needs of inmates and that “as long as a physician exercises professional
judgment his behavior will not violate a prisoner’s constitutional rights.”).
       A local governmental agency may be a “person” for purposes of § 1983 liability.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Liability of such entities may
not rest on respondeat superior, but rather must be based on a governmental policy,
practice, or custom that caused the injury. Id. at 690-94. The same standard applies to a
private health care provider that is acting under color of state law. See, e.g., Anacata v.
Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir. 1985).
       Finally, private prison doctors working under contract with the government act
“under color of state law” for purposes of § 1983. West v. Atkins, 487 U.S. 42, 54-57
(1988).


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       Second, Johnson contends that the district court erred in granting a Rule 12(b)(6)

dismissal of his Eighth Amendment claim against Secretary Horn in his individual

capacity. In doing so, Johnson concedes that § 1983 liability cannot be imposed

vicariously or on the basis of respondeat superior. Johnson’s Br. at 38 (citing Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). He claims, however, that he asserted

that Horn was personally involved in “establishing and enforcing policies and practices

related to his claim.” Id.

       Given Horn’s alleged status as a policymaker, Johnson contends that Horn cannot

escape that liability by contracting with private companies such as PHS or CPS. In

Johnson’s view, the delay in his receipt of knee surgery (the essence of his Eighth

Amendment claim) is traceable to the deficient PHS or CPS policies, which in turn are

traceable to deficient DOC policies that Horn was responsible for. Thus, according to

Johnson, Horn is personally liable for any delay in receiving surgery.

       Johnson bases his argument on West v. Atkins, 487 U.S. 42, 54-57 (1988) and

Ancata v. Prison Health Services, Inc., 769 F.2d 700, 705-06 (11th Cir. 1985). However,

West does not support his argument at all. West established that private prison doctors

working under contract with the government act “under color of state law” for purposes

of § 1983 and may be sued under that statute. 487 U.S. at 54-57. However, the Court did

not address whether the head of an agency can he personally liable for a contract doctor’s

alleged malfeasance.



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       Johnson fares no better under Ancata. There, the personal representative of the

estate of the deceased prisoner brought a § 1983 action against a county, two sheriffs and

a private entity under contract with the county to provide medical care to inmates. The

plaintiff asserted an Eighth Amendment claim alleging deliberate indifference to the

prisoner’s serious medical needs. The district court dismissed all claims against all the

defendants. On appeal, the Eleventh Circuit held that local governments have an

obligation to provide medical care to incarcerated individuals and that this duty is not

absolved by contracting with a private entity to provide medical care. The local

government’s duty to provide medical care was non-delegable and liability remained with

the local government, not under the theory of respondeat superior, but because the policy

of the private entity became the policy of the local government. 769 F.2d at 705-06.

       Here, however, Johnson is not asserting a claim against a local governmental

agency. His claim is against Horn personally. Thus, Ancata does not support Johnson’s

contention that Horn is personally liable for the allegedly deficient policies of PHS and

CPS.

       Admittedly, in Ancata, the two sheriffs were kept in the case because the details of

their personal involvement in the events at issue were unclear from the pleadings. Id., at

706. However, the record here clearly demonstrates that Horn had absolutely nothing to

do with decisions about Johnson’s treatment. Accordingly, the district court did not err in

dismissing Johnson’s Eighth Amendment claim against Horn.



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                                               C.

       Third, Johnson argues that the district court erred by refusing to appoint counsel

for him prior to dismissing his Eighth Amendment claims against Drs. Moyer and

Stempler and Secretary Horn. “Indigent civil litigants possess neither a constitutional nor

a statutory right to appointed counsel.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d

Cir. 2002) (citation omitted). Nonetheless, Congress has granted district courts the

authority to “request” appointed counsel for indigent civil litigants. See 28 U.S.C. §

1915(e)(1) (providing that “[t]he court may request an attorney to represent any person

unable to afford counsel”). District courts have “broad discretion” to determine whether

appointment of counsel in a civil case would be appropriate. Tabron v. Grace, 6 F.3d

147, 153 (3d Cir. 1993). In Tabron, we concluded that the decision to appoint counsel

may be made at any point in the litigation, and may be made by a district court sua sponte.

Id. at 156.

       In Tabron, we articulated a list of factors to assist the district courts in deciding

whether to appoint counsel for indigent civil litigants. As a threshold matter, the district

court must determine whether the indigent plaintiff’s case has some arguable merit in fact

and law. Id. at 155. “If the district court determines that the plaintiff’s claim has

arguable merit in fact and law, the court should then consider a number of additional

factors that bear on the need for appointed counsel.” Id. These include: (1) the plaintiff’s

ability to present his or her own case; (2) the difficulty of the particular legal issues; (3)



                                               7
the degree to which factual investigation will be necessary and the ability of the plaintiff

to pursue investigation; (4) the plaintiff’s capacity to retain counsel on his or her behalf;

(5) the extent to which a case is likely to turn on credibility determinations; and (6)

whether the case will require testimony from expert witnesses. Id. at 155-57.

       We have noted that “[t]his list of factors is not exhaustive, but instead should serve

as a guidepost for the district courts.” Parham v. Johnson, 126 F.3d 454, 458 (3d Cir.

1997). Finally, we have cautioned that district courts “should exercise care in appointing

counsel because volunteer lawyer time is a precious commodity and should not be wasted

on frivolous cases.” Id. (citation omitted).

       In denying Johnson’s first two motions for the appointment of counsel, the district

court said:

              Five law firms or attorneys have previously declined to
              represent [Johnson] in this case, and at least two of these
              rejections were based on the merits. After considering this
              fact, the Court, on October 22, 2001, ordered the Pro Se Writ
              Clerk to cease further efforts to appoint counsel in this matter.

              Efforts to appoint counsel that result in two rejections on the
              merits fulfill the requirements of the Prisoner Civil Rights
              Panel Program. “Where, in succession, two attorneys or law
              firms decline to accept a case after reviewing it thoroughly on
              the merits, no further request for representation shall be made
              unless there appear to be exceptional circumstances, such as
              plaintiff’s serious mental or physical disability.” Prisoner
              Civil Rights Panel Program Description at 2 (approved by the
              Board of Judges in the United States District Court for the
              Eastern District of Pennsylvania on December 20, 1993).
              Here, there is no evidence of serious mental or physical
              disability or any other exceptional circumstance.

                                               8
Johnson does not argue that he was suffering from a serious mental or physical disability

or that any other exceptional circumstance existed that would warrant the appointment of

counsel when the district court rejected his motions. Moreover, as we noted in Tabron:

              We have no doubt that there are many cases in which district
              courts seek to appoint counsel but there is simply no one
              willing to accept appointment. It is difficult to fault a district
              court that denies a request for appointment under such
              circumstances.

6 F.3d at 157 (footnote omitted).

       Given the circumstances here, we cannot conclude that the district court abused its

discretion in denying Johnson’s first two motions for appointment of counsel.

                                              D.

       Fourth, and finally, Johnson argues that the district court erred in denying his Rule

60(b)(2) motion based on its finding that the motion was untimely filed. Rule 60(b)(2)

allows a district court to relieve a party “from a final judgment” based on “newly

discovered evidence which by due diligence could not have been discovered in time to

move for a new trial under Rule 59(b). However, such a motion must be brought within

one year from the entry of the judgment.

       The district court entered summary judgment in favor of Prison Health Services on

January 18, 2005. After Johnson had counsel, his attorney reviewed the Asset Purchase

Agreement between Correctional Physician Services and Prison Health Services, and filed

a Rule 60(b)(2) motion on March 1, 2006, contending that Prison Health Services had



                                               9
assumed the liabilities of Correctional Physician Services under the Asset Purchase

Agreement. The district court denied the motion on October 5, 2006, finding that it was

filed beyond the one-year time limitation. However, Rule 60(b) applies only to final

judgments and the one-year time limitation imposed by the Rule does not apply to

situations where the order in question was not properly appealable in the first place. The

January 18, 2005, order granting summary judgment to Prision Health Services was not

final because it did not dispose of all issues as to all parties. Therefore, the fact that

Johnson filed his Rule 60(b) motion more than a year after the entry of that order is of no

consequence. Accordingly, the district court erred by denying the motion as untimely.

We will, therefore, vacate the October 5, 2006, order and remand with instructions that

the district court consider the merits of Johnson’s arguments concerning Prison Health

Services liability under the Asset Purchase Agreement.

                                    IV. CONCLUSION

       For all of the above reasons, we will affirm the district court’s grant of summary

judgment to Drs. Moyer and Stempler on Johnson’s Eight Amendment Claim as well as

the district court’s grant of Horn’s Rule 12(b)(6) motion to dismiss of Johnson’s Eight

Amendment claim asserted against him. We will also affirm the district court’s June 2,

2003 denial of Johnson’s January 21, 2003, and May 13, 2003, motions for appointment

of counsel. However, we will vacate the district court’s denial of Johnson’s Rule

60(b)(2) motion and will remand for the district court to consider the merits of Johnson’s


                                               10
arguments concerning Prison Health Services’ liability under the Asset Purchase

Agreement.




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