                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2009

Latham v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4135




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Latham v. USA" (2009). 2009 Decisions. Paper 2029.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2029


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                         NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                              No. 07-4135
                              ___________

                           LARRY LATHAM,
                                               Appellant

                                    v.

                    UNITED STATES OF AMERICA;
           WARDEN JAMES F. SHERMAN; HEALTH SYSTEM
                 ADMINISTRATION RODNEY SMITH;
    THE UTILIZATION COMMITTEE; PHYSICIAN ASSISTANT CHARLES
          MONTGOMERY; DR. DENNIS OLSON, Medical Officer;
              COUNSELOR NED WATSON; JOHN LAMANA
                ____________________________________

              On Appeal from the United States District Court
                 for the Western District of Pennsylvania
                  (D.C. Civil Action No. 06-cv-00128E)
              District Judge: Honorable Sean J. McLaughlin
               ____________________________________

             Submitted Pursuant to Third Circuit LAR 34.1(a)
                         DECEMBER 2, 2008

         Before: MCKEE, HARDIMAN AND ROTH, Circuit Judges

                     (Opinion filed: January 15, 2009)
                              ___________

                               OPINION
                              ___________

PER CURIAM
       Pro se Appellant Larry Latham appeals from the District Court’s entry of judgment

against him. For the reasons that follow, we will affirm.

       Latham, a federal prisoner, filed a civil rights action in the United States District

Court for the Western District of Pennsylvania, alleging, among other things, that

Appellees denied him medical care in violation of the Eighth Amendment and that he was

entitled to relief under the Federal Tort Claims Act (“FTCA”). Essentially, he claimed

that he received inadequate medical care for injuries to his left foot and for urinary

problems which arose following surgery on his foot in 2004. The facts have been set out

in detail in the District Court’s opinion and, as we write only for the parties, we need not

repeat them here. Appellees filed a motion to dismiss, or in the alternative, for summary

judgment, attaching Latham’s voluminous prison medical records along with the

Declaration of Dennis Olson, M.D., the Clinical Director of FCI-McKean. Appellees

argued that the Olson Declaration, coupled with Appellant’s medical records,

demonstrated that Appellant received “continuous and appropriate medical care” and,

therefore, that he could not satisfy the “deliberate indifference” requirement of an Eighth

Amendment claim. In ruling on Appellees’ motion, the District Court, adopting the

Report & Recommendation of the Magistrate Judge, set out the standards applicable to a

motion to dismiss and a motion for summary judgment and, without stating which

standards it was applying, held that “Plaintiff’s medical records indicate that Plaintiff

received continual treatment and monitoring of both his left heel and his urinary



                                              2
conditions.” Based on Appellees’ submissions, the District Court concluded that

“Plaintiff’s Eighth Amendment deliberate indifference claims against the individual

Defendants should be dismissed, as a matter of law.” Accordingly, the District Court

granted Appellees’ motion to dismiss, or in the alternative, for summary judgment.

Appellant timely filed a notice of appeal.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. By a previous

order, we asked the parties to address the following questions: (1) Did the District Court

dismiss Appellant’s complaint pursuant to Fed. R. Civ. P. 12(b)(6) or enter summary

judgment pursuant to Fed. R. Civ. P. 56(c)?; (2) If the District Court dismissed

Appellant’s complaint, was such dismissal appropriate under Phillips v. Allegheny Cty.,

515 F.3d 224 (3d Cir. 2008)?; and (3) If the District Court entered summary judgment,

did Appellant have adequate notice of the District Court’s intent to convert Appellees’

motion to dismiss, or alternatively, for summary judgment, into a motion for summary

judgment, as outlined in Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989)?

       Appellees argue that the District Court dismissed Appellant’s FTCA claim for lack

of jurisdiction, and entered summary judgment on his Eighth Amendment claim.

Appellant does not raise the dismissal of his FTCA claim in his appeal brief and,

accordingly, we deem it waived. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d

524, 535 n.11 (3d Cir. 2007). With respect to Appellant’s Eighth Amendment claim, we

agree with Appellees that the District Court clearly considered matters outside the



                                             3
pleadings in reaching its decision and, accordingly, converted the motion to dismiss into

one for summary judgment. See Fed. R. Civ. P. 12(b)(6); Rose v. Bartle, 871 F.3d 331,

340 (3d Cir. 1989).

       When a motion to dismiss is converted into a motion for summary judgment the

parties must be given notice of the conversion and an opportunity to present material to

the court. See id.; see also In re Rockefeller Ctr. Props., Inc. Secs. Litig., 184 F.3d 280,

288-89 (3d Cir. 1999). Rule 56(c) requires that the parties have at least ten days’ notice

before the court may consider the motion for summary judgment, and the opportunity to

submit pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits. We have held that while “it would be desirable in the interest of clarity for an

order to notify expressly the parties that the court was converting a motion to dismiss into

one of ‘summary judgment’ or that the ruling would be pursuant to ‘Rule 56,’ the court

need not be so explicit so long as the order otherwise fairly apprises the parties of the

proposed conversion.” Id. at 342.

       While in this case, the District Court never entered an order putting the parties on

notice that it might consider summary judgment, Appellees argue that their filing of a

motion to dismiss styled in the alternative as a motion for summary judgment was

sufficient to put Appellant on notice that summary judgment might be entered. In Hilfirty

v. Shipman, 91 F.3d 573 (3d Cir. 1996), we concluded that the filing of two motions to

dismiss styled in the alternative as motions for summary judgment were sufficient to



                                              4
place the parties on notice that summary judgment might be entered. See id. at 578-79.

We recognize that this case differs from Hilfirty in that Appellant is proceeding pro se,

and unlike in Hilfirty, where we noted that there was ample time for the plaintiff to object

to the entry of summary judgment, in this case, the time between Appellees’ filing of its

motion and the District Court’s granting it was brief. However, Appellant filed numerous

responsive documents in the District Court in which he set out his version of the facts as

he would if submitting an affidavit. In his opposition to Appellees’ motion for summary

judgment, Appellant explicitly addressed the standard which applies to summary

judgment motions, and argued that summary judgment was not appropriate in this case

and that he should be permitted to proceed to trial. While Appellant does address the lack

of explicit notice from the District Court in his appeal brief, at no point does he indicate

what affidavits or testimony he would have submitted in opposition to summary judgment

had he been given an opportunity to do so, nor does he pinpoint any “material” factual

dispute between his version of events and Appellees’. In light of the specific

circumstances of this case, we conclude that any failure by the District Court to explicitly

notify Appellant of its intent to treat Appellees’ motion to dismiss as a motion for

summary judgment was harmless. See Rose, 871 F.2d at 342.

       Having so concluded, we will now affirm the District Court’s entry of summary

judgment in favor of Appellees. In order to state a claim for an Eighth Amendment

violation for inadequate medical care, a plaintiff must demonstrate that he had: (i) an



                                              5
objectively serious medical need (ii) to which a prison official acted with deliberate

indifference. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999). As observed by the District Court, deliberate indifference is

manifested by an intentional refusal to provide care, delayed medical treatment for non-

medical reasons, denial of prescribed medical treatment, and/or denial of reasonable

requests for treatment that results in suffering or risk of injury. See Durmer v. O’Carroll,

991 F.2d 64, 68 (3d Cir. 1993); Monmouth County Correctional Institutional Inmates v.

Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). We do not doubt the seriousness of

Appellant’s medical conditions or the amount of pain he was in. However, we agree with

the District Court that Appellant’s medical records belie any claim that Appellees were

deliberately indifferent to his medical conditions. Nothing in any of Appellant’s filings,

either in the District Court or in this Court, would lead us to a contrary conclusion. While

Appellant may believe that a different course of action should have been taken in

response to his complaint, he does not raise any genuine issue of material fact as to

whether Appellees were deliberately indifferent to his medical problems.

       Based on the foregoing, we will affirm the District Court’s entry of judgment in

favor of Appellees.




                                             6
