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


5-16-2007

Gusman v. Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2022




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Recommended Citation
"Gusman v. Bur Prisons" (2007). 2007 Decisions. Paper 1100.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1100


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                                                       NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                              NO. 06-2022
                            ________________

                            RAFAEL GUSMAN,

                                    Appellant

                                       v.

      BUREAU OF PRISONS; DEPARTMENT OF MEDICAL SERVICES,
          Allenwood Medium Level Prison; WARDEN S. A. YATES;
               DR. FELIX, Hospital Administrator, Department of
     Medical Services; ROBERT MIGLIORINO, Director of AMLP Hospital;
PHYSICIANS ASSISTANT TERRERO PENA; PHYSICIANS ASSISTANT E. ROCES
                  ____________________________________

               On Appeal From the United States District Court
                   For the Middle District of Pennsylvania
                         (D.C. Civ. No. 04-cv-2339)
                 District Judge: Honorable John E. Jones III
               _______________________________________


                 Submitted Under Third Circuit LAR 34.1(a)
                              May 11, 2007

         Before: FISHER , ALDISERT AND WEIS, CIRCUIT JUDGES

                            (Filed May 16, 2007)


                        _______________________

                               OPINION
                        _______________________
PER CURIAM

       Rafael Gusman appeals the District Court’s order granting the appellees’ motion

for summary judgment. Gusman filed a complaint alleging that prison officials were

deliberately indifferent to his serious medical needs. He argued that his ear infections

were not properly treated, became progressively worse, and resulted in significant hearing

loss. The District Court granted appellees’ motion for summary judgment. Gusman filed

a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review over the District Court’s order granting appellees’

motion for summary judgment. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.

1998). A grant of summary judgment will be affirmed if our review reveals that “there is

no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56©. We review the facts in a light most favorable to

the party against whom summary judgment was entered. See Coolspring Stone Supply,

Inc. v. American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993). With respect to

medical decisions, “prison authorities are accorded considerable latitude in the diagnosis

and treatment of prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Courts

will “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 Jail v. Peirce, 612 F.2d 754, 762 (3d Cir. 1979) (citations omitted).

       Gusman alleged that the appellees were deliberately indifferent to his ear

infections and, as a result, he is deaf in one ear with significant hearing loss in the other.

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He alleged that the appellees only gave him antibiotics, antihistamines, and ear drops and

did not send him to a specialist until five months after the ear infections began. The

District Court thoroughly summarized Gusman’s medical treatment history. As noted by

the District Court, Gusman was treated more than thirty times between January 2003 and

March 2004. He was given antibiotics, anti-inflammatory and pain medications, seen by

a specialist on several occasions, received an operation, and was given hearing aids. We

agree with the District Court that appellees were entitled to summary judgment on

Gusman’s claims of deliberate indifference.1

       For the above reasons, we will affirm the District Court’s March 14, 2006

judgment. Gusman’s motions for the appointment of counsel on appeal and to

supplement the record are denied.




   1
     Because he is not a doctor, appellee Warden Yates cannot be held to be deliberately
indifferent merely because he did not respond to the medical complaints of a prisoner
who was already being treated by the prison medical staff. Durmer v. O’Carroll, 991
F.2d 64, 69 (3d Cir. 1993). “[A]bsent a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical
prison official [] will not be chargeable with the Eighth Amendment scienter requirement
of deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

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