ALD-008                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-2487
                                       ___________

                                   EMMITT PERKINS,
                                              Appellant

                                              v.

             JURGEN SCHWAPPACH, CORRECTIONAL OFFICER SGT.
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 2:07-cv-02124)
                     District Judge: Honorable Michael M. Baylson
                      ____________________________________

         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
                                   October 15, 2010

            Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                                 (Filed: October 29, 2010)
                                         _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM.

       In 2007, Emmitt Perkins, an inmate at the State Correctional Institute at Graterford

(“Graterford”), filed a pro se civil rights action in the District Court pursuant to 42 U.S.C.

§ 1983. Perkins alleged that Sergeant Jurgen Schwappach, a correctional officer at
Graterford, denied him access to medical attention in violation of the Eighth Amendment

of the United States Constitution. The allegations stem from an incident in 2006 when

Perkins, who suffers from insulin-dependent type II diabetes mellitus, experienced a loss

of feeling in his arms, numbness in his fingertips, and feelings of nausea and

lightheadedness. These symptoms led Perkins to believe he needed to take Glipizide, a

diabetes medication, and he attempted to go to the prison’s medication line to obtain it.

Due to confusion over where Perkins wanted to go and what passes were necessary to go

there, Schwappach stopped Perkins before he arrived at the medication line and made

Perkins return to his cell block to obtain a white pass, despite Perkins’s explanation that

he needed his diabetes medication.1 Later that day Perkins was able to proceed to the

medical dispensary where he received treatment for his symptoms and recovered.

       In 2007, the District Court dismissed Perkins’s complaint with prejudice, but in

2008 we reversed the District Court’s ruling regarding Perkins’s Eighth Amendment

claim. The District Court appointed counsel for Perkins in 2008, and he filed an

amended complaint. After discovery, Schwappach moved for summary judgment, which

the District Court granted in April 2010.




1
  On his way to the medication line Perkins showed a blue pass, which is a pass
authorizing inmates to go to the dispensary for medical treatment. To go to the
dispensary, however, a prisoner must show both a blue pass and a white pass, which lists
the dates and times of when the inmate is leaving one area of the prison and entering
another.
                                              2
       Perkins filed a timely notice of appeal from the District Court’s order and then

moved to proceed in forma pauperis (“IFP”).2 However, because he failed to provide the

additional documentation necessary for a grant of IFP, Perkins’s appeal was dismissed

for failure to timely prosecute. See Fed. R. App. P. 3(a); 3d Cir. L.A.R. 3.3; 3d Cir.

L.A.R. Misc. 107.1(a). Soon thereafter, Perkins filed a motion to reopen the appeal along

with the additional documents needed for an IFP application. Although Perkins’s motion

to reopen was filed late, see 3d Cir. L.A.R. Misc. 107.2(a), we accept Perkins’s

explanation that Graterford was slow in providing him with his prison account statement.

As a result, we find Perkins had good cause for not providing the required IFP documents

in a timely fashion, and therefore grant his motion to reopen. See id. Perkins’s

application for IFP is now complete and demonstrates that he has no appreciable assets.

Accordingly, his motion to proceed IFP is also granted.

       Although we grant Perkins leave to proceed IFP, his appeal nonetheless fails,

because we will summarily affirm the District Court’s decision. See 3d Cir. L.A.R. 27.4

and I.O.P. 10.6.3 We exercise plenary review over the District Court’s grant of

Schwappach’s motion for summary judgment. See Bouriez v. Carnegie Mellon Univ.,

585 F.3d 765, 770 (3d Cir. 2009). A motion for summary judgment should be granted

2
 Appellant also submitted a brief in support of his appeal prior to the Court issuing a
briefing schedule. We have considered the brief in reaching our decision, and direct the
Clerk of the Court to file the brief.
3
  We have jurisdiction pursuant to 28 U.S.C. § 1291, and may affirm the District Court’s
judgment on any basis supported by the record. See Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999).
                                             3
only if there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party first must show

that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The burden then shifts to the non-moving party to set forth specific facts

demonstrating a genuine issue for trial. See Ridgewood Bd. of Educ. v. N.E. ex rel.

M.E., 172 F.3d 238, 252 (3d Cir.1999).

       The Eighth Amendment’s prohibition of cruel and unusual punishment requires

prison officials to provide basic medical treatment to inmates. Estelle v. Gamble, 429

U.S. 97, 103 (1976); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Because it is

well established that insulin-dependent diabetes mellitus is an objectively serious medical

condition, see, e.g., Rouse, 182 F.3d at 197, we focus upon whether Schwappach’s

actions amounted to deliberate indifference. To establish deliberate indifference in the

context of medical treatment, a prisoner must show that the prison employee knew of and

disregarded an excessive risk to the prisoner’s health. See Farmer v. Brennan, 511 U.S.

825, 837 (1994). We have found deliberate indifference where a prison official: knows

of a prisoner’s need for medical treatment but intentionally refuses to provide it; delays

necessary medical treatment for non-medical reasons; or prevents a prisoner from

receiving needed or recommended treatment. See Rouse, 182 F.3d at 197.

       We agree with the District Court that Perkins did not come forward with evidence

sufficient to create a genuine issue of material fact regarding deliberate indifference.

Arguably, Schwappach was aware of a risk to Perkins’s health, because Perkins told
                                              4
Schwappach that he was feeling sick, had diabetes, and needed his medication.

Nonetheless, no evidence suggests that Schwappach also drew the inference that Perkins

actually faced a serious risk of harm. See Farmer, 511 U.S. at 837 (“[T]he official must

both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.”). As the District Court

explained, Schwappach had no medical training, no knowledge of Perkins’s medical

history, and Perkins did not exhibit any outward signs of suffering. As a result,

Schwappach had no way of determining Perkins’s health risk aside from Perkins’s

statements regarding how he felt. Under such circumstances, Schwappach was justified

in not inferring a serious risk to Perkins’s health.

       Moreover, even if Schwappach did know of an excessive risk to Perkins’s health,

he did not disregard that risk. Schwappach did not prevent Perkins from getting

treatment altogether, and instead sent Perkins back to the cell block in order to obtain the

necessary pass for the medical dispensary. Although Schwappach may have issued that

directive in a harsh fashion by telling Perkins to “get the hell back on the block,” he did

not indicate a desire to deny Perkins medical treatment. Schwappach’s actions appear to

have been driven by a desire to enforce prison rules rather than a disregard for Perkins’s

health conditions. After Perkins received treatment later that day his symptoms

dissipated, and he has not come forward with any evidence demonstrating long-term

damage from the delay in receiving treatment. Because Schwappach’s actions did not


                                               5
amount to deliberate indifference, the District Court properly granted his motion for

summary judgment on the Eighth Amendment claim.

       Although we need not reach the issue of qualified immunity, since the District

Court ruled on the matter, we briefly address it. For the reasons outlined above, the facts

that Perkins alleged fail to make out a violation of a constitutional right. See Pearson v.

Callahan, 129 S. Ct. 808, 815-16 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). Accordingly, the District Court also properly granted Schwappach’s motion for

summary judgment on the basis of qualified immunity.

       Because this appeal does not present a substantial question, we will summarily

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




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