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


3-29-2006

Brown v. Thomas
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1669




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                                                    NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                              No. 02-1669


                         RHONDELL BROWN,

                                    Appellant

                                    v.

    DENISE THOMAS, RPN; SUSAN NOSKO, Health Care Administrator;
     JOSEPH ROLLINS, Assistant to the Superintendent; DR. WILLIAM
   RYAN, Psychiatrist; WILLIAM MONSOUR, DR. Physician; DR. JAWAD
      SALAMEH, Physician; SYLVIA GIBSON, Deputy Superintendent;
  RAYMOND SOBINA, Superintendent; MARTIN F. HORN, Commissioner;
CENTRAL OFFICE REVIEW COMMITTEE (CORC), Department of Corrections;
     KATHLEEN ZWIERZYNA, Director, Bureau of Health Care Services
            __________________________________________

             On Appeal From the United States District Court
                 For the Western District of Pennsylvania
                        (W.D. Pa. No. 98-cv-00134J)
             District Judge: The Honorable Gustave Diamond
            __________________________________________

                Submitted Under Third Circuit L.A.R. 34.1
                           February 8, 2006


     Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                         (Filed: March 29, 2006)




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                                        OPINION


PER CURIAM

       Rhondell Brown, a former prisoner in the Pennsylvania state prison system,

appeals the District Court’s orders dismissing his § 1983 action against several defendants

and awarding summary judgment to the remaining defendants. We will affirm.

       While he was housed at SCI-Somerset in 1998, Rhondell Brown filed a § 1983

action, claiming that prison administration defendants denied him adequate access to the

grievance procedure with respect to his complaints about his poor medical treatment in

1996, and that all of the defendants denied him adequate medical care for a serious eye

condition by (1) delaying emergency treatment for his eye condition (the “delayed eye

treatment claim”); and (2) denying him contact lenses to balance his vision (the “balanced

vision claim”).

       Brown alleges that in July 1995, his eye doctor notified prison medical staff that

his eye condition could cause sudden changes in vision that would require immediate

medical attention. In January 1996, after complaining about problems with his left eye,

Brown was seen by an eye specialist, Dr. Dellone, who advised the prison medical

department that Brown was to report any changes in his vision of the left eye to her

office. Dr. Dellone asked that Brown be scheduled for a follow-up visit in February

1996, “and subsequent visits on an as needed basis.”


                                             2
       On April 22, 1996, after experiencing pain and impaired vision in his left eye,

Brown informed the correctional officers of his need to see an eye specialist. When the

correctional officers called the medical department about immediate emergency

treatment, they were told that Brown had to submit a “sick call request.” Brown

complied, filing a sick call request that same day. On April 23, 1996, Brown’s condition

deteriorated further and he again requested immediate emergency treatment, which was

denied. On April 24, 1996, Brown saw Dr. Ryan, a psychiatrist. His visit with Ryan was

terminated prematurely, however, when Brown insisted on seeing an eye specialist.

Arrangements were made for him to be evaluated by Dr. Monsour later that day. It was

Dr. Monsour who directed a staff member to schedule an appointment for Brown with the

eye specialist as soon as possible. In response to earlier complaints by Brown about the

delay in arranging an appointment with Dr. Dellone, Superintendent Sobina and Susan

Nosko, a health care administrator, both reassured Brown that his vision problems would

be evaluated by the eye specialist.

       On April 28, 1996, Brown awoke unable to see with his left eye. On April 29,

1996, seven days after his initial request for emergency medial treatment of his left eye,

Brown was evaluated by Dr. Dellone, who told him that he would have emergency

surgery the next day. Dr. Dellone’s April 29, 1996 faxed communication to Dr. Monsour,

however, only noted that Brown required “scleral buckling,” “as soon as possible.” On

May 1, 1996, Brown wrote to Superintendent Sobina complaining about further

deterioration in his left eye and requesting a transfer to SCI-Pittsburgh. Sobina

                                             3
immediately notified Brown that he was scheduled to have eye surgery on May 2. Brown

underwent eye surgery on May 2, 1996, and a second surgery on June 4, 1996.

       In a separate set of allegations, Brown claims that in 1996 and 1997, he had

problems obtaining adequate post-surgical corrected vision lenses to balance the vision in

his eyes. In November 1996, he inquired about a contact lens for his right eye and was

told by Nurse Thomas that eyeglasses had been ordered for him.1 He renewed his request

to the medical department for a contact lens in mid-1997, claiming that his current

eyeglasses caused blurred vision and flashes in his right eye. He forwarded the same

request to Deputy Superintendent Gibson and to Grievance Coordinator Rollins, and then

filed formal grievances when the medical department denied his request for a contact

lens. Superintendent Sobina ultimately responded to Brown’s complaints in a personal

interview with him in the housing unit. Sobina told Brown that neither of the two

optometrists who had evaluated Brown recommended contact lenses as necessary.

       Brown claims that he suffers from ultra-sensitivity to light, poor peripheral vision,

poor depth perception, blurred and blotched vision, and asserts that he frequently suffers

from headaches, light-headed sensations, and double vision because he was denied

immediate medical attention and the best possible corrective lens prescriptions to balance

his vision. He asserts that the delay in receiving eye surgery, caused by sending him to



       1
         Nurse Thomas followed up on June 4, 1997, stating that, according to the
doctor’s evaluation and prescription, Brown had been prescribed eyeglasses, not contact
lenses.

                                             4
see a psychiatrist instead of an eye specialist, reduced the probability that corrective

surgery could fully restore his vision. He claims that all of the defendants conspired to

deny him prompt medical treatment and meaningful access to the grievance procedure.

Finally, Brown claims that the Central Office Review Committee refused to obey its own

mandates by failing to appoint a medical staff member to evaluate medical complaints

and grievances.

       Certain defendants moved to dismiss Brown’s complaint under Rule 12(b)(6)

contending that Brown’s delayed eye care claim was barred by the statute of limitations

and that, in any event, Brown’s Complaint failed to state any claim upon which relief

could be granted. By order dated September 21, 1999, the District Court dismissed all

claims against Drs. Ryan and Salameh because the Complaint contained no allegations

from which the District Court could determine that either defendant had been deliberately

indifferent to Brown’s medical needs. The District Court dismissed Brown’s inadequate

prison grievance process claim against Rollins, Gibson, Sobina, Horn, Zwierzyna, and the

Central Review Committee, holding that the claim was non-cognizable under § 1983

because Brown had no constitutional right to a particular prison grievance procedure. See

Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (citing cases). As for the remaining

defendants, Thomas, Nosko, and Monsour, the District Court dismissed Brown’s

balanced vision claim for failure to state a claim, but denied dismissal of Brown’s delayed

eye care claim, holding that it was not barred by the statute of limitations.

       The District Court appointed counsel to represent Brown on the delayed eye care

                                              5
claim. In April 2001, the Clerk entered a default against Monsour, which the District

Court later set aside on Monsour’s motion. Monsour then moved for dismissal under

Rule 12(b)(6), and Thomas and Nosko moved for summary judgment.2 By orders entered

in January and February, 2002, the District Court adopted the Magistrate Judge’s

recommendation that Monsour’s motion be treated as one for summary judgment and

granted summary judgment as to Monsour, Thomas, and Nosko, on the delayed eye care

claim. This timely appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the

District Court’s dismissals pursuant to Fed. R. Civ. P. 12(b)(6), see Emerson v. Thiel

College, 296 F.3d 184, 188 (3d Cir. 2002), and the District Court’s orders granting

summary judgment, see D’Amico v. CBS Corp., 297 F.3d 287, 290 (3d Cir. 2002).

Summary judgment is appropriate if, viewing the record in the light most favorable to the

non-moving party, there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48; see also Fakete v. Aetna, Inc., 308 F.3d 335,

337 (3d Cir. 2002). We will affirm the dismissal of all claims against defendants Salameh

and Ryan, and we will affirm the dismissal of the prison grievance process claim as to

defendants Rollins, Gibson, Sobina, Horn, Zwierzyna, and the Central Review



       2
         During the pendency of the summary judgment motions, Browns’ counsel moved
to withdraw from the case and Brown moved to proceed pro se. He also filed a motion
for appointment of stand-by counsel.

                                             6
Committee, for the reasons set forth by the District Court in its September 1999 opinion.

We will affirm the District Court’s dismissal of Brown’s balanced vision claim under

Rule 12(b)(6) and its grant of summary judgment in the defendants’ favor with respect to

Brown’s delayed eye care claim, for the reasons discussed below.

       To demonstrate a prima facie case of cruel and unusual punishment premised on

the denial of medical care, the plaintiff must show that the defendants acted “with

deliberate indifference to his or her serious medical needs.” See Estelle v. Gamble, 429

U.S. 97, 104 (1976); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).

A prison official violates the Eighth Amendment when he knows of and disregards an

excessive risk to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 837

(1994). The official must be aware of the facts from which an inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference. See id.

Negligence in the administration of medical treatment to prisoners is not actionable under

the Constitution. See Government of the V.I. v. Martinez, 239 F.3d 293, 301 (3d Cir.

2001). Failure to provide adequate medical treatment violates the Eighth Amendment

when it results from deliberate indifference to a prisoner’s serious illness or injury. See

Martinez, 239 F.3d at 301-02.

                               I. The Balanced Vision Claim

       Assuming the truth of the allegations in Brown’s Complaint, we conclude that the

Complaint fails to state an Eighth Amendment deliberate indifference claim as to any of

the defendants with respect to Brown’s need for corrective lenses. See Morse v. Lower

                                              7
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Brown alleges that the eyeglasses

the prison provided for him were inadequate and that he wanted a contact lens for his

right eye. Brown does not allege that any defendant ignored his vision problem or

delayed his access to corrective lenses for non-medical reasons. See Natale v. Camden

County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). A difference of opinion

between Brown and the prison medical staff as to whether contact lenses or eyeglasses are

the preferred treatment for his condition does not amount to an Eighth Amendment

violation. Inmates of Allegheny Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (noting

that 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.”

                            II. The Delayed Eye Care Claim

       With respect to Brown’s claim that Dr. Monsour delayed his eye care treatment,

the record indicates that: (1) Dr. Monsour ordered an appointment with Brown’s eye

specialist as soon as he became aware of the condition on April 24, 1996; (2) Brown was

treated by Dr. Dellone five days later, on April 29, 1996; and (3) Brown subsequently

underwent the required surgery, on May 2, 1996. Viewing the undisputed facts in the

light most favorable to Brown, we find no evidence to show that Monsour acted in

conscious disregard of serious risk to Brown’s health. Accordingly, the District Court

correctly granted summary judgment in Monsour’s favor.

       The District Court properly granted summary judgment to defendants Thomas and

                                             8
Nosko for essentially the same reasons. The record indicates that defendants Thomas and

Nosko first became aware of Brown’s request for medical attention on April 24, 1996, the

same day that Brown was seen by Dr. Monsour and referred to Dr. Dellone. Brown

offers no evidence to dispute Thomas’s and Nosko’s assertions that they neither

controlled nor intervened in the surgery scheduling process. Brown submitted the

unsworn statement of an optometrist, stating that “[r]etinal tears and detachments are best

treated as soon as possible.” An unsworn statement does not constitute the kind of

competent evidence necessary to create a genuine issue of material fact at summary

judgment. In any event, even if the optometrist had completed a sworn affidavit, such a

statement does not address whether the ten-day period between Brown’s earliest

complaint of new problems with his left eye on April 22, 1996, and his eye surgery on

May 2, 1996, was medically acceptable “delay,” or whether Brown suffered any injury

from the alleged delay in treatment. The District Court correctly concluded that, based on

the undisputed facts, Brown failed to demonstrate an Eighth Amendment claim of

deliberate indifference as to defendants Thomas and Nosko.

       Although the District Court did not set forth the grounds for dismissal of Brown’s

Eighth Amendment delayed eye care claim against defendants Gibson, Sobina, and

Zwierzyna, we agree that the claim against these defendants is constitutionally

insufficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 109 (3d Cir. 2002).

Brown asserts that the grievance exhibits attached to his complaint demonstrate that each

of these defendants was deliberately indifferent to his serious eye condition. However,

                                             9
the record plainly falls short of the required showing of deliberate indifference. Brown

makes no specific allegations against Gibson regarding the delay in eye care.

Superintendent Sobina promptly answered Brown’s April 23, 1996, request to see an eye

doctor by referring the request to defendant Nosko on April 24, 1996. When Brown

submitted a second request for medical treatment to Sobina on May 1, 1996, Sobina

promptly responded on May 2 by verifying that Brown was scheduled for surgery that

same day. Although Brown asserts that defendant Zwierzyna’s delay in responding to his

letter constitutes deliberate indifference, his most recent letter to her was dated April 22,

1996, several days before he asserts he lost vision in his left eye. During the interim

between Brown’s letter and Zwierzyna’s May 1, 1996, response, two doctors examined

Brown and immediately scheduled surgery for him, which he underwent on May 2, 1996.

None of these circumstances demonstrate conscious disregard of an excessive risk to

Brown’s health or safety on the part of defendants Gibson, Sobina and Zwierzyna.

       We have carefully reviewed Brown’s argument challenging the District Court’s

decision to set aside the default against Dr. Monsour and his argument that the District

Court erred in failing to appoint new counsel. The District Court did not err in setting

aside the default. See Feliciano v. Reliant Tooling Co., Ltd., 691 F.2d 653, 656 (3d Cir.

1982). There is no concrete record evidence of willful disregard or bad faith on

Monsour’s part, Brown was not prejudiced by the District Court’s decision to vacate the

default, and Monsour had a strong factual defense to Brown’s delayed eye care claim. As

for appointment of new counsel, the record indicates that Brown sought to proceed pro se,

                                              10
requesting that the District Court appoint counsel to function essentially as “stand-by”

counsel in order to assist Brown in his efforts to represent himself. Based on the record,

we cannot say that the District Court abused its discretion in granting Brown’s motion to

proceed pro se without appointing stand-by counsel.

       Accordingly, we will affirm the Judgment of the District Court.




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