BLD-423                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 13-3203
                                   ___________

                            KENNETH MURCHISON,
                                          Appellant

                                         v.

             WARDEN LEWISBURG USP; NORTHEAST REGIONAL
          DIRECTOR NORWOOD, Director of the Northeast Region of FBOP;
           UNKNOWN ADMINISTRATIVE REMEDY COORDINATORS;
                 HENRY J. SADOWSKI, Tort Claim Coordinator;
              POTTER, Physician Assistant; PIGOS, Physician Assistant;
                           SORT TEAM MEMBERS
                    __________________________________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                           (D.C. Civil No. 3:11-cv-01944)
                    District Judge: Honorable Matthew W. Brann
                    ____________________________________

      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
                               September 12, 2013

     Before: HARDIMAN, GREENAWAY, JR. and SCIRICA, Circuit Judges

                          (Opinion filed: October 18, 2013)
                                     _________

                                     OPINION
                                     _________


                                         1
PER CURIAM

       Pro se Appellant Kenneth Murchison appeals the District Court’s order granting

Defendants’ motion to dismiss or, in the alternative, for summary judgment. For the

reasons set forth below, will summarily affirm the District Court’s judgment. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.

                                             I.

       Because we primarily write for the parties, we will recite only the facts necessary

for our discussion. Murchison is an inmate at the United States Penitentiary Lewisburg,

in Lewisburg, Pennsylvania (“USP-Lewisburg”). He filed a Bivens1action against Dr.

Kevin Pigos and Physician Assistant Potter (“PA Potter”) alleging that they rendered

improper medical care in violation of the Eighth Amendment with respect to treatment of

his diabetes.2 Specifically, Murchison claims that Dr. Pigos and PA Potter intentionally



1
  Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971).
2
  In his original complaint, Murchison named as defendants various prison officials. The
District Court dismissed with prejudice Murchison’s claims for damages against the
Defendants in their official capacities, as well as his Eighth Amendment conditions of
confinement claim and his First Amendment denial of access to court claim and
recommitted the case to the Magistrate Judge. Thereafter, Murchison filed an amended
complaint to include claims against Dr. Pigos and PA Potter. The District Court
dismissed all of Murchison’s claims, except for his Eighth Amendment claim for denial
of proper medical care against PA Potter and Dr. Pigos and granted Murchison forty-five
days to file a second amended complaint, limiting it to five specific claims. Murchison
never filed a second amended complaint and the District Court treated Murchison’s
claims as proceeding on his first amended complaint with respect only to his claim for
denial of proper medical care against PA Potter and Dr. Pigos. We find no error in the
Court’s doing so.
                                             2
lowered the dosage of his pain medication, Gabapentin 3, without notice or any

examination, in retaliation for a prior conflict he had with PA Potter.4

       Dr. Pigos and PA Potter filed a motion to dismiss the complaint, or in the

alternative, a motion for summary judgment. Murchison did not respond to the

Defendants’ statement of material facts and the District Court granted the motion,

concluding that Murchison failed to exhaust his administrative remedies and that he

failed to prove the elements of an Eighth Amendment claim because the Defendants’

undisputed evidence showed that they did not act with deliberate indifference to a serious

medical need. This appeal followed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of

a district court’s order granting or denying summary judgment, applying the same

standard as the district court. See Tri–M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir.

2011). We will affirm only if “drawing all reasonable inferences in favor of the

nonmoving party, there is no genuine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law.” Id. We may summarily affirm the

District Court’s decision if the appeal presents no substantial question. See L.A.R. 27.4;

I.O.P. 10.6.


3
  Gabapentin is used to treat polyneuropathy, which is a neurological disorder associated
with his diabetes.
4
  Murchison included these allegations in a previous motion for a preliminary injunction,
requesting immediate transfer to USP-Allenwood, which the District Court denied.
                                              3
                                            III.

       In the context of Eighth Amendment claims based on medical care, a plaintiff

must demonstrate deliberate indifference to a serious medical need. Estelle v. Gamble,

429 U.S. 97, 106 (1976). “To act with deliberate indifference to serious medical needs is

to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d

318, 330 (3d Cir. 2009). For instance, a plaintiff may make this showing by establishing

that the defendants “intentionally den[ied] or delay[ed] medical care.” Id. (quotation

marks omitted). However, “[w]here a prisoner has received some medical attention and

the dispute is over the adequacy of the treatment, federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims which sound in state tort

law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)

(internal quotation marks omitted).

       We agree with the District Court that the undisputed evidence shows that Dr.

Pigos and PA Potter did not violate Murchison’s Eighth Amendment right to proper

medical care.5 The record shows that Murchison was seen on a regular basis by the


5
  The United States District Court for the Middle District of Pennsylvania’s local Rule
56.1 is clear: “The papers opposing a motion for summary judgment shall include a
separate, short and concise statement of the material facts, responding to the numbered
paragraphs set forth in the” moving party's Rule 56.1 statement. M.D. Pa. Local R. 56.1.
The facts in the moving party's statement are deemed admitted “unless controverted by
the statement required to be served ” by the nonmovant. Id. Here, the Defendants’
statement of material facts are supported by citations to the record. Thus, given that
Murchison did not respond to the Defendants’ statement of material facts, the District
Court did not err in concluding that the Defendants’ material facts are undisputed.

                                             4
medical staff for treatment of his diabetes and related conditions. Specifically, with

respect to his pain medication, when Dr. Pigos first saw Murchison in May 2011, he

prescribed insulin to treat his diabetes and Gabapentin to treat his pain. In July 2011, due

to an increase in neuropathic pain, a physician assistant increased Murchison’s dose of

Gabapentin from 900 mg to 1200 mg. In August 2011, Murchison again complained of

pain and the physician assistant increased his dosage to 1200 mg in the morning and 1800

mg in the evening. The medical records show that Dr. Pigos co-signed the order and the

same prescription was refilled in November 2011 and again in March 2012. In the end of

March 2012, Murchison’s dosage of Gabapentin was increased to 1800 mg, twice a day.

Throughout this period, there are additional medical records showing that Murchison was

seen by medical staff for related problems, including his insulin dosage.

       Based on this record evidence, which Murchison has not disputed, the Defendants

treated Murchison’s pain and, in fact, increased the dosage of his Gabapentin, rather than

decreasing it as he alleged. There is nothing in the record to demonstrate that Dr. Pigos

or PA Potter acted with deliberate indifference with respect to Murchison’s medical

needs, or that they improperly denied him treatment. To the extent that Murchison

disagrees with the dosage he received, a prisoner’s disagreement with proper medical

treatment does not imply a constitutional violation. See Spruill v. Gillis, 372 F.3d 218,

235 (3d Cir. 2004). Accordingly, the District Court properly granted summary judgment

in favor of the Defendants because there is no genuine issue of material fact and there is


                                             5
no evidence that the Defendants exhibited deliberated indifference to a serious medical

need.6

                                             IV.

         For the foregoing reasons, no substantial question is presented and we will affirm

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.




6
 Because we conclude that summary judgment is appropriate in this instance, we do not
need to address whether Murchison exhausted his administrative remedies with respect to
his claims against PA Potter and Dr. Pigos.
                                              6
