                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2006

Todd v. Walters
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1020




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Recommended Citation
"Todd v. Walters" (2006). 2006 Decisions. Paper 1756.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1756


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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                      No. 05-1020
                                     ____________

                                   TRACY L. TODD,
                                         Appellant
                                        vs.

                 GILBERT WALTERS, Warden; SCOTT MORGAN;
               EDWARD HORNEMAN; JIM FARMARY; DOE PETERS;
                    DOE RISINGER; DOE SHOSTER; JEFFREY
                        A. BEARD, Secretary of Corrections
                   _______________________________________

                     On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                               (D.C. Civ. No. 04-cv-00248)
                       District Judge: Honorable Arthur J. Schwab
                     _______________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 5, 2006
             Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
                                Filed January 12, 2006
                             _______________________

                                     OPINION
                              _______________________

PER CURIAM.

              Appellant Tracy Todd appeals from two District Court orders granting the

Defendants’ motions for summary judgment. We will affirm the District Court’s orders,

but for different reasons.
                                            I.

              Todd is currently an inmate at SCI-Rockview. On February 15, 2002, he

filed a complaint under 42 U.S.C. § 1983 alleging a series of Eighth, Fourteenth, and

Fifteenth Amendment violations for incidents occurring between December 1, 2001 and

March 4, 2002, while he was an inmate at SCI-Mercer. Specifically, he alleges (1) that he

was denied the use of a wheelchair, causing him to fall and injure himself on multiple

occasions; (2) that Dr. Morgan, Physician Assistant Horneman, and Scott Peters did not

provide medical care after several falls; (3) that Nurses Jim Farmarie and Doe Schuster1

did not wear gloves when administering medication and that Schuster tried to give him

soap with his medicine; (4) that Risinger and Horneman interfered with his use of a

shortcut to get to the cafeteria, causing him to use a more dangerous route and miss

meals; and (5) that Farmarie verbally abused him.

              The Defendants, with the exception of Dr. Morgan and Horneman, moved

to dismiss the complaint, or in the alternative, for summary judgment arguing that Todd’s

claims are barred by the applicable statute of limitations. They submitted copies of

grievances that Todd filed while incarcerated at SCI-Mercer. The grievances are all dated

prior to February 15, 2002. The Magistrate Judge recommended granting the motion

because the grievances refer to conduct occurring more than two years before the date of

filing. On August 18, 2004, Todd filed a document entitled “Brief in Support to denied



       1
          The last names of Farmarie and Schuster were misspelled in the complaint and
listed as Farmary and Shoster. We use the correct spellings here.
Motion to Dismiss Complaint or in the Alternative, For Summary Judgment.” The

District Court ignored this filing and adopted the report and recommendation.

Eventually, Dr. Morgan and Horneman moved for summary judgment. The District Court

granted the motions concluding that Todd failed to show the existence of a genuine issue

of material fact. Todd appealed.

                                            II.2

              Todd’s claims are governed by a two-year statute of limitations. See

Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). His

complaint is dated February 15, 2004. Thus, a claim based on any incident occurring

prior to February 15, 2002, is barred. We disagree with the District Court’s conclusion

that all of Todd’s claims are time-barred. His August 18th submission includes

arguments and copies of grievances showing that some of the complained of conduct, or

the injury arising from such conduct, was ongoing or occurred after February 15. In only

two instances are Todd’s claims precluded by the statute of limitations. First, Todd’s

claim that Nurse Schuster gave him soap appears to be a single incident, which occurred

prior to February 15. Second, claim two alleges that he was denied adequate medical

treatment for injuries sustained in several falls. From what we can discern, his principal

qualm relates to treatment received in connection with a fall from an embankment in early

February. Todd’s medical records show that he was seen almost daily until February 11,


       2
         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise
plenary review. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 285 (3d
Cir. 2003).
when he was released from the restrictive housing unit. Thus, his alleged injury was

known more than two years before he commenced his suit. See Debiec v. Cabot Corp.,

352 F.3d 117, 128-29 (3d Cir. 2003).

              The remainder of his claims, even if not time barred, fail to establish the

existence of a genuine issue of material fact sufficient to survive a motion for summary

judgment. We can affirm the grant of a motion for summary judgment on any basis

supported by the record. See Fairview Twp. v. E.P.A., 773 F.2d 517, 524 n. 15 (3d Cir.

1985). Todd’s claims are premised on the Eighth Amendment. To succeed, Todd must

show the deprivation at issue is sufficiently serious and that the prison official was

deliberately indifferent to his plight. See Wilson v. Seiter, 501 U.S. 294, 298-99 (1981);

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Woloszyn v. County of Lawrence, 396 F.3d

314, 320 (3d Cir. 2005).

              Todd’s first claim relates to the denial of a wheelchair. There is no doubt

that Todd has decreased mobility, but he does not show that any prison official who might

be authorized to provide a wheelchair acted with deliberate indifference. There is no

indication that he faced painful or permanent injuries if a wheelchair was not provided, or

that any Defendant was aware that this might be the case. See Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999). He also exaggerates his inability to walk. The record shows that

on several occasions Todd declined accommodations, instead choosing to walk with the

assistance of a walker. Finally, the medical records show that there was no identifiable

reason for his inability to walk, and it was suspected that Todd was “malingering.” On
the facts in evidence, it cannot be said that any Defendant was deliberately indifferent.

              In claim three, Todd alleges that the Nurses’ failure to wear gloves while

dispensing medication spread germs and caused him to fall ill. Prisoners have a right to

be housed in sanitary and safe conditions. See Bell v. Wolfish, 441 U.S. 520, 539 (1979).

However, there is no evidence that the failure to use gloves creates an unsafe

environment, nor is there any indication that either Nurse intentionally ignored a possible

danger. See Rhodes v. Chapman, 452 U.S. 337, 346-48 (1981) (discussing the objective

component). Further, Nurse Schuster’s use of an anti-bacterial hand lotion actually

weighs against Todd’s claim that he was subjected to unsafe conditions.

              Todd’s fourth claim against Risinger and Horneman is equally baseless.

Horneman issued an order for Todd to use a shortcut, but withdrew the order following an

examination by Dr. Morgan, which revealed that there was a possibility that Todd was

exaggerating his disability. Moreover, Horneman attempted to accommodate Todd’s

needs, but Todd refused the accommodation. There is no indication Horneman was

indifferent to Todd’s medical condition. The record also fails to show that Risinger

played any part in this decision. Finally, Todd’s verbal abuse claim against Nurse

Farmarie is not actionable under § 1983. See Calhoun v. Hargrove, 312 F.3d 730, 734

(3d Cir. 2002). Todd fails to sufficiently show that any of Farmarie’s alleged threats

resulted in physical injury. See id.; 42 U.S.C. § 1997e(e).

              For the foregoing reasons, the District Court properly granted the

Defendants’ motions for summary judgment. Accordingly, we will affirm.
