                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2008

Lewal v. Ali
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2865




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Lewal v. Ali" (2008). 2008 Decisions. Paper 684.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/684


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 07-2865


                               AKRAM LEWAL,
                                          Appellant

                                       v.

                                     R. ALI;
                                DR. J. BRADY,
                           Chief Medical Supervisor;
                               JAMES PATOPE,
                          Assistant Healthcare Admin.;
                            TROY WILLIAMSON,
                                     Warden


                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                      (D.C. Civil Action No. 06-cv-00687)
                  District Judge: Honorable Sylvia H. Rambo


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 25, 2008

             Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                        (Opinion filed: August 11, 2008)


                                   OPINION


PER CURIAM
       Appellant Akram Lewal appeals pro se from the District Court’s order dismissing

his Bivens1 action against the government defendants in their official capacities and

granting summary judgment in favor of the government defendants on the ground of

qualified immunity to the extent they were sued in their individual capacities. For the

following reasons, we will affirm the judgment of the District Court.

       Because we write primarily for the parties, we need not repeat the details of

Lewal’s claims here. In brief, Lewal, an inmate at the Allenwood Low Security

Correctional Institution (“LSCI-Allenwood”) in White Deer, Pennsylvania, contends that

the defendants have been deliberately indifferent to his serious medical needs, in

contravention of the Eighth Amendment.2 Specifically, Lewal claims that the defendants

demonstrated deliberate indifference when they refused to administer an MRI or to allow

an “independent” physician to perform an MRI. In addition, Lewal complains of the

treatment he has received for a foot infection. Although it is not entirely clear from his

complaint, Lewal also appears to allege that his Equal Protection rights were violated

because he was refused an MRI due to his illegal alien status, Muslim religion, and

nationality as an Afghan. Lewal further alleges that the defendants had conspired to

deprive him of his constitutional rights.


  1
    Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971)
  2
   The defendants include the following LSCI-Allenwood officials: Troy Williamson
(Warden), James Patope (Assistant Healthcare Administrator), Dr. J. Brady (Chief
Medical Supervisor) and R. Ali (healthcare provider).
                                             2
       Defendants filed a motion to dismiss and for summary judgment. Lewal filed a

brief in opposition to the motion, as well as a number of exhibits. The District Court

granted defendants’ motion to dismiss and for summary judgment. First, the District

Court dismissed Lewal’s claims for monetary damages against the defendants in their

official capacities, reasoning it lacked subject matter jurisdiction to adjudicate those

claims. Second, the District Court granted the defendants’ motion for summary judgment

based on the affirmative defense of qualified immunity to the extent the defendants were

sued in their individual capacities. The District Court concluded that the defendants had

not violated the Eighth Amendment and that, even if they had, objectively reasonable

medical personnel under the same circumstances would have believed their conduct was

lawful. Because defendants had demonstrated there had been no violation of Lewal’s

constitutional rights, the District Court concluded the defendants were likewise entitled to

summary judgment on Lewal’s conspiracy allegations. Lewal timely appealed.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise

plenary review over a dismissal of a complaint for lack of subject matter jurisdiction. See

Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). We also exercise

plenary review of a district court’s summary judgment ruling on qualified immunity.

A.W. v. Jersey City Public Schools, 486 F.3d 791, 794 (3d Cir. 2007) (citations omitted).

We can affirm the district court on any basis supported by the record. Fairview Twp. v.

EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985).

       Lewal’s Bivens claims against the defendants in their official capacities were

                                              3
properly dismissed. An action against government officials in their official capacities

constitutes an action against the United States; and Bivens claims against the United

States are barred by sovereign immunity, absent an explicit waiver. See FDIC v. Meyer,

510 U.S. 471, 483 (1994); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979). See

also Consejo de Desarrollo Economico de Medicali v. United States, 482 F.3d 1157, 1173

(9th Cir. 2007) (Bivens action can be maintained against a defendant in his or her

individual capacity only).

       In addition, we conclude that summary judgment was properly granted in favor of

the defendants in their individual capacities on the grounds of qualified immunity with

respect to Lewal’s Eighth Amendment claim. When examining whether officials are

entitled to qualified immunity, we first determine whether the conduct alleged by the

plaintiff violated a constitutional right. Scott v. Harris, --- U.S. ----, ----, 127 S.Ct. 1769,

1774, 167 L.Ed.2d 686 (2007); see also Showers v. Spangler, 182 F.3d 165, 172 (3d

Cir.1999). If so, the second step is to determine whether the unlawfulness of the action

would have been apparent to an objectively reasonable official. Showers, 182 F.3d at

172. Here, Lewal’s disagreement as to the proper medical treatment he should receive

does not support an Eighth Amendment claim. See Monmouth County Correctional

Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Accordingly,

summary judgment was properly entered in favor of the defendants.

       Finally, although the District Court did not address Lewal’s Equal Protection

claim, we conclude that the defendants were entitled to summary judgment on that claim

                                                4
because Lewal failed to set forth any facts showing that there was a genuine issue for

trial. See United States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993).3

       To the extent Lewal attempts to raise claims for the first time on appeal, we

decline to address them. Further, Lewal’s appellate reply brief appears to attempt to re-

litigate claims that were resolved in prior lawsuits he filed in the Second Circuit. Lewal

is clearly barred from doing so by the doctrine of res judicata. Lewal also complains that

he never received a copy of the exhibits the appellees filed for this appeal. However,

appellees have not filed any exhibits.

       For the foregoing reasons, the District Court’s judgment will be affirmed.




  3
     Lewal’s conspiracy claims were premised on the foregoing constitutional claims and
therefore judgment was properly entered in favor of defendants with respect to these
claims as well.
                                             5
