                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2007

Williams v. Kort
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1937




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                    No. 06-1937


                           ANTHONY M. WILLIAMS

                                         v.

   DR. JOSEPH KORT, SCI-Coal Township; KAREN OHLER, SCI-Somerset;
   DR. BAKER, SCI-Albion; MAJOR R. NEISWONGER, SCI-Albion; DAVID
    MARTIN, SCI-Coal Township; BRADLEY LORAH, SCI-Coal Township

                               Anthony Mustafa Williams,

                                                               Appellant


                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 02-cv-02320)
                   District Judge: Honorable Sylvia H. Rambo


                    Submitted Under Third Circuit LAR 34.1(a)
                                  May 4, 2007

        Before:    FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES.

                               (Filed: May 7, 2007)


                                     OPINION


PER CURIAM

    Anthony Williams filed a civil rights action against prison medical and security
personnel in December 2002 asserting various constitutional violations related to the

medical treatment of his injured knee. Williams appeals following entry of orders by the

United States District Court for the Middle District of Pennsylvania denying his motion

to amend his civil rights complaint with regard to some claims, and ultimately granting

the defendants’ motions to dismiss or the defendants’ motion for summary judgment on

all claims. We will affirm in part and vacate in part.

       Williams alleges that he twisted his knee at the State Correctional Institution at

Coal Township on June 25, 2000, and injured it there again on August 5, 2000.

Defendant Kort and other medical personnel treated Williams with painkillers after x-rays

revealed that he had not broken any bones. In the time period between the two injuries,

Williams complained of extreme pain, swelling, limited movement and buckling of his

knee. Nurses and defendant Bradley Lorah,1 a physician’s assistant, continued to

prescribe painkillers and told Williams that they would inform Dr. Kort of his condition.

On September 30, 2000, Dr. Kort told Williams that he would order an MRI and refer him

to an orthopedic doctor in a few months if his knee did not improve. Williams

subsequently saw medical personnel and complained about his knee and was told that

only Dr. Kort could order an MRI.

       On August 22, 2001, Williams was transferred to the State Correctional Institution

at Somerset. Defendant Karen Ohler, a physician’s assistant, treated Williams there.



   1
   Lorah was misnamed David Martin in Williams’ complaint.

                                              2
Williams told Ohler that he had extreme pain, swelling, and limited movement, that his

knee buckled, and that the painkillers were ineffective. Williams alleges that, during his

appointment, Ohler did not look at the knee and, based upon his medical file, determined

that he did not need painkillers. Ohler prescribed exercises which Williams states

aggravated his knee. He then saw nurses who resumed his painkillers.

       Williams was transferred to the State Correctional Institution at Albion on January

22, 2002. On June 5, 2002, he was taken to an outside hospital for an MRI and saw an

orthopedic doctor. He was diagnosed with a bilateral meniscus tear and surgery was

scheduled for September 2002.

       On September 2, 2002, Williams was involved in a physical altercation with

correctional officers and was placed in the restrictive housing unit. A physician’s

assistant then told Williams that his surgery was cancelled at the request of the security

department. Williams later learned that defendant Neiswonger, an officer in the security

department, had requested its cancellation. Prison officials denied Williams’ grievance

regarding the cancellation, explaining that the prison Medical Director, defendant Baker,

stated that the surgery was not urgent and would be rescheduled.

       Williams claimed that Kort, Ohler and Lorah, by their actions and/or failure to act,

caused him pain without any medical justification and that, numerous times, they insisted

on continuing courses of treatment that they knew were ineffective, intentionally causing

him unnecessary pain in violation of the Eighth Amendment. He further claimed that

their conduct constituted “intentional and negligent torts.” Complaint at 15. Williams

                                             3
also claimed that Baker and Neiswonger were deliberately indifferent to his medical

needs and that they conspired to cancel his surgery in retaliation for the assault, knowing

that he would be in continued pain. Williams sought a declaratory judgment stating that

the defendants violated his rights, as well as compensatory, punitive and nominal

damages. Williams also sought an order directing that his knee surgery take place. He

received the surgery on March 21, 2003, while this action was pending in the District

Court.

         The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)

for failure to state a claim. On appeal, we vacated the District Court’s judgment,

concluding that (1) Williams’ complaint sufficiently alleged a claim for relief under the

Eighth Amendment against prison medical personnel,2 and (2) because it was not clear

that amendment would be futile, Williams should be permitted to amend his complaint

with regard to his retaliation claim. We also concluded that Williams’ allegations of

conspiracy failed to state a claim. See Williams v. Kort, C.A. No. 03-2864.

         Williams then moved to file an amended complaint. The District Court permitted

Williams to substitute Bradley Lorah for defendant David Martin and to add state law tort

claims of medical malpractice, negligence, and willful misconduct, based upon the same




   2
   This excludes defendant Neiswonger – the opinion specifically states that Williams
does not state an Eighth Amendment medical claim against Neiswonger.

                                             4
facts underlying Williams’ Eighth Amendment claims.3 The District Court denied

Williams’ motion with regard to the retaliation claim, concluding that his additional

allegations did not cure the defects in his initial complaint. The District Court also agreed

with the defendants that Williams failed to exhaust administrative remedies with regard to

the three new retaliation claims he proposed against Neiswonger and other corrections

officers, and denied Williams’ motion as to those claims. At this point in the

proceedings, Williams’ remaining claims against the defendants were his Eighth

Amendment medical claims against all defendants except Neiswonger and his related

state law claims.

       In November 2004, the medical defendants filed a motion to dismiss as to all

defendants, or alternatively, for summary judgment as to all defendants. As to the

constitutional claims, the District Court granted the motion to dismiss with respect to

defendants Ohler and Lorah, and granted summary judgment with respect to defendants

Kort and Baker. The District Court also concluded that considerations of judicial

economy, convenience, and fairness to the parties dictated that it continue to exercise

supplemental jurisdiction over the state law claims.4

       In April 2005, the District Court issued an order requiring that Williams file a


   3
    Williams’ original complaint alleged that the defendants’ conduct “constitutes
negligence and intentional torts,” so to some extent, these “added” claims serve to refine
his initial state law claims.
   4
   Williams filed a motion to reconsider the District Court’s decision, which the District
Court denied.

                                             5
“certificate of merit” regarding his state law claims pursuant to Pennsylvania Rule of

Civil Procedure 1042.6. Although the District Court later agreed with Williams that the

certificate of merit requirement did not apply because it was enacted after the filing of the

complaint, the Court nevertheless required Williams to file an expert report because

“expert testimony will be required if th[e] case proceeds to trial.”5 District Court

memorandum of 12/8/05 at 3. The District Court’s order specified that, if Williams failed

to file an expert report by February 27, 2006, the case would be dismissed.

       On January 9, 2006, Williams filed a motion asking the District Court to, inter

alia, locate a pro bono attorney for Williams and order the Pro Bono Panel of the relevant

chapter of the Federal Bar Association to appoint an orthopedic doctor to prepare and file

the expert report for Williams. Noting the measures it had already taken to assist

Williams,6 the District Court denied the motion. Williams did not submit an expert

report, and on March 1, 2006, the defendants moved to dismiss. The District Court

granted the motion pursuant to Federal Rule of Civil Procedure 41(b).

       Williams appealed. We declined to dismiss the appeal pursuant to 28 U.S.C.

1915(e)(2)(B), and by order entered October 12, 2006, directed the parties to address



   5
   Williams also filed a motion to reconsider this decision, which the District Court
denied.
   6
   At the time of Williams’ motion, the District Court had already requested assistance
from the Pro Bono Panel. After the Panel’s physician and experienced medical
malpractice attorney reviewed Williams’ case and medical records, the Panel declined to
provide representation.

                                              6
whether the District Court’s dismissal pursuant to Rule 41(b) could be affirmed although

the Court did not address the factors set forth in Poulis v. State Farm Fire & Casualty Co.,

747 F.2d 863 (3d Cir. 1984).

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. With regard to the District

Court’s order dismissing some claims pursuant to Rule 12(b)(6), we exercise plenary

review, and accept as true all factual allegations in the complaint and all reasonable

inferences that can be drawn from them. See Weston v. Pennsylvania, 251 F.3d 420, 425

(3d Cir. 2001); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). With regard to

the decision to grant summary judgment, we also exercise plenary review, and must

determine whether the record, when viewed in the light most favorable to Williams,

shows that there is no genuine issue of material fact and that the defendants were entitled

to judgment as a matter of law. See Torres v. Fauver, 292 F.3d at 145 (3d Cir. 2002). We

review the District Court’s decision to deny Williams’ request to amend for abuse of

discretion. See Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000). We can affirm the District

Court’s order on any ground supported by the record. See Tourscher v. McCullough, 184

F.3d 236, 240 (3d Cir. 1999).

       Motion to Amend

       The District Court did not abuse its discretion in denying Williams’ motion to

amend with regard to Williams’ three proposed retaliation claims against Neiswonger.

Amendment would have been futile because Williams failed to exhaust administrative

                                             7
remedies with regard to these claims.

       Williams’ central retaliation claim is that Neiswonger requested the cancellation of

his surgery in retaliation for the September 2002 altercation. The District Court

concluded that the amended complaint failed to state a retaliation claim because Williams

did not engage in constitutionally protected conduct. We do not agree with the District

Court’s characterization of Williams’ claim as alleging a constitutional right “to fight

with corrections officers.” Williams clearly claims to be exercising a constitutionally

protected right to defend himself when assaulted by a correctional officer. However, the

only court of appeals that has addressed this issue has concluded that prisoners do not

have a federal constitutional right to self-defense. See Rowe v. DeBruyn, 17 F.3d 1047,

1052-53 (7th Cir. 1994), cert. denied, 513 U.S. 999 (1994). We agree.

       Eighth Amendment Claims

       Williams claims that Kort, Ohler and Lorah, by their actions and/or failure to act,

caused him pain without medical justification and that, numerous times, they insisted on

continuing courses of treatment that they knew were ineffective, intentionally causing

him unnecessary pain. Williams also claims that Baker was deliberately indifferent to his

medical needs when he cancelled Williams’ scheduled knee surgery.

       Allegations of negligent treatment are medical malpractice claims, and do not

trigger constitutional protections. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

Disagreements over medical judgment or treatment also cannot form the basis of an

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

                                             8
order for Williams to prevail on his Eighth Amendment claim regarding his medical

treatment, he must show that prison officials were deliberately indifferent to a serious

medical need. See Estelle, 429 U.S. at 104. We have found “deliberate indifference”

where prison officials delay medical treatment for non-medical reasons or continue a

course of treatment they know is painful, ineffective, or entails a substantial risk of

serious harm. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); White, 897 F.2d

at 109. We note that the medical defendants do not dispute whether Williams’ knee

injury amounts to a serious medical need, and concur with the District Court’s acceptance

of Williams’ assertion that his medical needs were serious. Therefore, the only issue

contested is whether the defendants acted with deliberate indifference to Williams’

serious medical needs.

       Summary Judgment

       The District Court properly concluded that defendants Kort and Baker are entitled

to summary judgment. With regard to Dr. Kort, Williams does not dispute that he was

seen by Kort and several physician’s assistants throughout his time at SCI-Coal

Township, but alleges that Kort insisted on continuing courses of treatment that he knew

were painful or ineffective. When vacating the District Court’s initial dismissal for

failure to state a claim, we specifically referenced the eleven-month period between

Kort’s telling Williams he would take certain action if the injury did not improve

(ordering an MRI and referring Williams to a specialist) and Williams’ transfer from SCI-

Coal Township. See Williams v. Kort, C.A. No. 03-2864. Dr. Kort never ordered an

                                              9
MRI or referred Williams to a specialist.

       The parties’ submissions show that this time period cannot be characterized as a

delay of medical treatment for non-medical reasons or a continuation of an ineffective

and/or painful treatment in violation of the Eighth Amendment. As the District Court

notes, Kort later determined that an MRI and referral to an orthopedic specialist would

not be necessary. Medical records for this time period indicate that Williams was (at least

on some occasions) feeling well, finding the pain to be improving, and moving without

discomfort. These records reveal that Kort’s treatment decisions were not constitutionally

deficient. See Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (so

long as physician exercises professional judgment, physician’s behavior will not violate

prisoner’s constitutional rights).

       The District Court thoroughly explained why Dr. Baker’s decision to reschedule

Williams’ knee surgery due to security concerns did not violate Williams’ Eighth

Amendment rights. We need not supplement that analysis.

       Motion to Dismiss

       The District Court’s decision to grant the motion to dismiss as to Lorah and Ohler

requires us to examine Williams’ allegations regarding each defendant. The District

Court stated that Williams made only one allegation as to Lorah (that while Williams was

under his care, “nothing [Lorah] did was working”), and concluded that this bare

allegation failed to state an Eighth Amendment claim. While we agree that such an

allegation would be insufficient, Williams also asserts that Lorah intentionally did not

                                             10
treat Williams’ pain, knowing that he would suffer. See Complaint at 10. This allegation

surely states a claim that Lorah was deliberately indifferent to Williams’ serious medical

needs. In keeping with this Court’s longstanding practice of construing pro se pleadings

liberally, we think it proper to view the complaint as having pled an Eighth Amendment

claim against Lorah.

         However, this error does not warrant remand as the record reveals that Lorah

would be entitled to summary judgment on this record.7 Lorah, a physician’s assistant,

treated Williams during the same relevant time as – and in conjunction with – Dr. Kort.

The same medical records which reveal that Kort’s determination that Williams did not

require an MRI or referral to a specialist did not amount to deliberate indifference to

Williams’ medical needs, inform our evaluation of Lorah’s treatment. See Medical

Appellees’ Brief at 30. Thus, any assessment by Lorah that Williams did not require an

MRI or a specialist referral does not violate the Eighth Amendment. Lorah also told

Williams that he would relay Williams’ medical complaints to Dr. Kort; Williams does

not allege that Lorah failed to do so. Accordingly, there is no genuine issue of material

fact as to whether Lorah continued a course of treatment he knew was “painful,

ineffective, or entailed substantial risk of serious harm.” White, 897 F.2d at 109 (3d Cir.

1990).


   7
    We note that the motion to dismiss, or alternatively, for summary judgment,
specifically argues that all medical defendants are entitled to summary judgment.
Accordingly, Williams had adequate opportunity to respond to the argument that
defendant Lorah is entitled to summary judgment.

                                             11
       Finally, we disagree with the District Court’s conclusion that Williams failed to

state a claim as to Ohler. Here too, we find that dismissal pursuant to Rule 12(b)(6) is not

warranted. However, review of the relevant medical records supports the defendants’

description of Ohler’s treatment of Williams as consisting of just one visit in which Ohler

recommended “management through exercise and strengthening of what was, on that

single visit, a non-symptomatic patient with a history of knee complaints.” See Medical

Appellees Brief at 23. As with Defendant Lorah, we need not remand because Ohler

would be entitled to summary judgment.

       State Law Claims

       Williams takes issue with the District Court’s order requiring him to submit an

expert report to support his medical malpractice claims. Management of discovery is

uniquely within the discretion of the trial judge. See George v. Schirra, 814 A.2d 202,

204 (Pa. Super. 2002); see also In re Fine Paper Antitrust Litigation, 685 F.2d 810, 817

(3d Cir. 1982) (“matters of docket control and conduct of discovery are committed to the

sound discretion of the district court”). We agree with the District Court that expert

testimony will be required from Williams if the case goes to trial. See Mitzelfelt v.

Kamrin, 584 A.2d 888, 892 (Pa. 1990). Accordingly, we cannot say it was an abuse of

discretion for the District Court to require Williams to submit an expert report prior to

trial. See In re Fine, 685 F.2d at 817 (appellate court will not interfere with discovery

decisions unless the procedures result in actual and substantial prejudice to the

complaining litigant).

                                             12
       Because Williams failed to provide the required expert report, the District Court

granted the defendants’ motion to dismiss, citing its authority under Federal Rule of Civil

Procedure 41(b). Rule 41(b) states, “for failure of the plaintiff . . . to comply with . . . any

order of court, a defendant may move for dismissal of an action or of any claim against

the defendant.” Though we “defer to the District Court’s discretion, dismissal with

prejudice is only appropriate in limited circumstances and doubts should be resolved in

favor of reaching a decision on the merits.” Emerson v. Thiel College, 296 F.3d 184, 190

(3d Cir. 2002). We have also repeatedly emphasized that the “drastic sanction” of

dismissal is disfavored except in the most egregious circumstances. See United States v.

$8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003); Poulis v. State Farm

Fire & Casualty Co., 747 F.2d 863, 866 (3d Cir. 1984). Accordingly, before dismissing

an action, a district court is required to make explicit findings regarding the factors

enumerated in the Poulis decision. See $8,221,877.16 in U.S. Currency, 330 F.3d at 162

(“we have always required consideration and balancing of all six of the factors [by the

district court]”) (emphasis in original); Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74

(3d Cir. 1987) (remanding because the district court “did not pursue the analysis

mandated by our precedent”); Poulis, 747 F.2d at 868 (“we will be guided by the manner

in which the trial court balanced the . . . factors”). The Poulis factors to be weighed by

the District Court are: (1) the extent of the party’s personal responsibility; (2) the

prejudice to the adversary caused by the failure to meet scheduling orders and respond to

discovery; (3) a history of dilatoriness; (4) whether the conduct of the party . . . was

                                              13
willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which

entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim. Id.

          The role of an appellate court is to determine whether the District Court properly

balanced the Poulis factors and whether the record supports its findings. See Livera v.

First Nat. State Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989) (citation

omitted); see also Emcasco, 834 F.2d at 74 (noting that, “[i]n order that we may properly

exercise our function of reviewing for abuse of discretion, we have [] required the district

court to make explicit findings concerning the factors it must consider in rendering

judgment by . . . dismissal”). Here, however, the District Court neither cited Poulis nor

evaluated the extensive history of this case in light of the Poulis factors before dismissing

pursuant to Rule 41(b).

          Accordingly, we conclude that the District Court erred in dismissing the complaint

with prejudice without making the requisite findings. Livera, 879 F.2d at 1193. Though

dismissal pursuant to Rule 41(b) ultimately may be warranted under the Poulis factors as

appellees suggest, under these circumstances, our precedent counsels that it would be

improper for us to perform a Poulis evaluation, as the test requires factual findings not

within the parameters of appellate review. See Liveria, 879 F.2d at 1194; see also

$8,221,877.16 in U.S. Currency, 330 F.3d at 162 (remanding so that district court could

consider two factors it had not considered, rather than re-balancing all factors at appellate

stage).

          The medical appellees cite our decisions in Spain v. Gallegos, 26 F.3d 439 (3d Cir.

                                               14
1994) and Guyer v. Beard, 907 F.2d 1424 (3d Cir. 1990), in support of their argument

that analysis of the Poulis factors is unnecessary when a litigant’s conduct makes

adjudicating the case impossible. However, there are qualitative distinctions between

Williams’ behavior and the behavior of the Spain and Guyer plaintiffs.8 To the extent

that Spain and Guyer can be understood as obviating the district court’s obligation to

conduct a Poulis analysis where the plaintiff clearly intends to abandon the case (Spain),

or where the plaintiff’s behavior is so egregious as to constitute an abandonment of the

case (Guyer), such a conclusion is not dictated here. Williams indicates that he has made

significant efforts in an attempt to obtain expert testimony and clearly wishes to pursue

his claims. Although Williams has not obeyed the District Court’s order directing him to

submit an expert report, the manner in which he has disobeyed that order is significant

when evaluating the question of sanctions. See Spain, 26 F.3d at 455 (1994) (contrasting

Spain’s wilful refusal to prosecute with “situations in which a court must balance factors

because the plaintiff does not desire to abandon her case but has encountered problems in

going forward”) (emphasis added); Donnelly v. Johns-Manville Sales Corp., 677 F.2d

339, 343 (3d Cir. 1982) (behavior not contumacious where effort made to comply with

court order). We cannot say that Williams’ behavior has been so egregious as to make


   8
    In Spain, the plaintiff, who was represented by counsel, specifically asked the judge
about the consequences of not prosecuting, and then several days later, immediately after
being warned by the court that she faced dismissal for failure to prosecute, declared her
decision not to proceed. See 26 F.3d 439 at 445. In Guyer, the plaintiff was an inmate
who repeatedly refused to sign the form which would enable him to receive mail from the
court and other parties in the case. See 907 F.2d 1424, 1426-27.

                                            15
self-evident the factual findings and analysis that are the province of the District Court

under Poulis.

       Accordingly, we will vacate the District Court’s order to the extent it dismisses

Williams’ state law claims pursuant to Rule 41(b), and will remand for further

proceedings. We will affirm in all other respects. The medical appellees’ motion for

partial withdrawal of argument is granted.




                                             16
