BLD-199                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                               No. 11-1453 / 11-1454
                                   ___________

                              CHARLES E. ALBERT,
                                              Appellant

                                         v.

     JOHN YOST, WARDEN; JEFFREY TRIBATH, MEDICAL DIRECTOR;
  ROBIN GOLDEN, P.A.; D. SCOTT DODRILL, B.O.P. REGIONAL DIRECTOR;
    HARRELL WATTS, B.O.P. CENTRAL DIRECTOR; UNIDENTIFIED URC
      MEMBERS; DAVID MAFFAT, FORMER WARDEN, FCI LORETTO;
       DR. JAMES LEONARD, FORMER PHYSICIAN, FCI LORETTO;
   US MEDICAL RECORDS; HARLEY G. LAPPIN, DIRECTOR, U.S. BUREAU
        OF PRISONS; THE UNITED STATES BUREAU OF PRISONS;
             URC COMMITTEE, U.S. BUREAU OF PRISONS
                ____________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                           (D.C. Civil No. 09-cv-00116)
                    District Judge: Honorable Kim R. Gibson
                   ____________________________________

                                 C.A. No. 11-1453

    Submitted by the Clerk for Possible Dismissal Due to a Jurisdictional Defect,
           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
                   ____________________________________
                                       C.A. No. 11-1454

       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


        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                               (Opinion filed: June 14, 2011)
                                        _________

                                          OPINION
                                          _________

PER CURIAM

       Charles Albert, proceeding pro se, appeals from the District Court’s entry of

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

judgment of the District Court.

       Albert entered the Federal Correctional Institution in Loretto, Pennsylvania (“FCI

Loretto”) in May 2006. He arrived at the facility with a number of serious medical

ailments: (1) a history of epilepsy; (2) non-insulin dependent diabetes mellitus; (3) disc

herniation surgery on April 26, 2006; (4) history of head trauma with loss of

consciousness causing seizures; and (5) cardiac catheterization in April 2006. He is also

allergic to a number of antibiotics.

       In May 2009, Albert initiated the underlying action in the United States District

Court for the Western District of Pennsylvania pursuant to Bivens v. Six Unknown

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), and the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. He claimed that upon arrival at FCI
                                              2
Loretto, Physician Assistant (“P.A.”) Robin Golden and Health Services Administrator

Jeffrey Trimbath placed him on a different pain medication than he had previously been

prescribed by his private physicians and neurosurgeons without consulting them, and that

his walker was taken away and he was not provided with a replacement. He also alleged

that P.A. Golden prescribed him an anti-inflammatory drug, Naproxen with Sodium,

which was “an irresponsible, inappropriate choice” in light of his medical history, and

which caused him to suffer lightheadedness, bleeding, shortness of breath, numbness and

pain in the left arm, and severe chest pain. He complained that he was placed on

acetaminophen and capsaicin cream, which were ineffective in treating his pain. He

asserted that Trimbath told him that he was complaining too much and that all of his

future medical requests would be summarily rejected. Based on these incidents, he

maintained that these defendants, along with various prison administrators, Bureau of

Prisons officials, and other employees, violated his rights under the Fifth, Eighth, and

Fourteenth Amendments. He sought an injunction compelling that he be seen by an

outside specialist and prescribed the medication he was taking prior to entering FCI

Loretto, that he be reassigned to a new P.A., and that he continue to be housed at FCI

Loretto so that he could remain close to his family. He also sought significant

compensatory and punitive damages.

       Appellees moved to dismiss and, in the alternative, for summary judgment. They

argued, among other things, that only one of Albert’s claims -- that he was not prescribed

the pain medication of his choosing or referred to an outside specialist -- was exhausted,
                                             3
and that this exhausted claim did not rise to the level of deliberate indifference to a

serious medical need. The District Court provided the parties with notice that it intended

to treat Appellees’ motion as one for summary judgment and instructed Albert of the

requirements for opposing such a motion under Federal Rule of Civil Procedure 56(c)

and the accompanying Local Rule.

       Albert opposed the motion, arguing that he had exhausted all claims “reasonably

capable of administrative exhaustion.” He maintained that he had filed a “sensitive”

BP-10 to the Regional Office regarding Trimbath’s alleged intimidation and harassment,

but never received a response. He further argued that his complaint sufficiently

demonstrated that the medical defendants had been deliberately indifferent to his serious

medical needs by taking his walker without providing him with a replacement, failing to

change his medication despite his complaints that the medication he was on was not

relieving his pain, and refusing to honor his request to see an outside specialist. Albert

cross-moved for summary judgment.

       Magistrate Judge Amy Reynolds Hay was originally assigned to this case. After

her passing, it was reassigned to Magistrate Judge Keith A. Pesto, who ordered the

parties to file supplemental briefs on the issue of whether there was sufficient expert

witness testimony in the record on the issue of deliberate indifference. Both parties

agreed there was no such evidence. The Magistrate Judge held that Albert was required

to adduce medical expert evidence to prove that he had suffered harm as a result of any of

the medical defendants’ conduct. The Court explained, “[a]ssuming the existence of the
                                              4
unabated crushing chest pain and shortness of breath plaintiff says in his pleadings he has

suffered from, for the last two and a half years, without medical attention, the causation

of that injury is not obvious at all. Plaintiff now says that the cause was the naproxen

sodium P.A. Golden prescribed.” (Mag. J. Op., 9.) Due to the lack of expert testimony

on this issue, the Magistrate Judge concluded that Albert had not proved the existence of

any material facts, and recommended that judgment be entered in favor of Appellees. In

making this recommendation, the Magistrate Judge did not reach Appellees’ exhaustion,

statute of limitations, or other defenses.

       Albert objected to the Report & Recommendation and, in his objections, requested

the appointment of counsel or an expert witness, or in the alternative, an extension of

time in which to find an expert witness. The Magistrate Judge denied that motion as

well, concluding that Albert’s only goal in seeking the appointment of counsel is “to

attempt to find by indirect means some expert testimony to support [his] claim.” Over

Albert’s objections, the District Court adopted the Magistrate Judge’s Report &

Recommendation as the opinion of the Court. Albert filed separate notices of appeal

from each decision. The appeal from the denial of his motion for the appointment of

counsel and an expert witness was docketed at C.A. No. 11-1453. The appeal from the

entry of summary judgment against him was docketed at C.A. No. 11-1454. Appellees

have filed a motion for summary action in C.A. No. 11-1454 which Albert opposes.




                                             5
       We have jurisdiction over these appeals pursuant to 28 U.S.C. § 1291.1 We

exercise plenary review over the District Court’s entry of summary judgment, viewing

the underlying facts and all reasonable inferences therefrom in the light most favorable to

the non-moving party. See Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010).

We may affirm a district court’s grant of summary judgment based on any ground that

appears in the record. See Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 2000).

       While we disagree with part of the District Court’s analysis, we will nonetheless

summarily affirm its judgment on alternative grounds. The District Court focused on a

claim Albert did not exhaust. The PLRA requires exhaustion. See 42 U.S.C. § 1997e;

Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir. 2000) (requiring exhaustion of all available

administrative remedies). Furthermore, the Court seems to have imported state law

regarding proof of negligence or medical malpractice into a federal civil rights action.

See Geibel v. United States, 667 F. Supp. 215, 219 (W.D. Pa. 1987) (discussing lack of

expert evidence submitted to prove claim under FTCA, applying Pennsylvania standard

for medical malpractice); Festa v. Greenberg, 511 A.2d 1371, 1376 (Pa. Super. Ct. 1986)



1
 As noted, C.A. No. 11-1453 is an appeal to this Court from an order of the Magistrate
Judge denying Albert’s motion for the appointment of counsel or an expert witness. An
order of a Magistrate Judge which has not been appealed to the District Court generally is
not immediately appealable to this Court. See Siers v. Morrash, 700 F.2d 113, 116 (3d
Cir. 1983). In this case, however, we conclude that jurisdiction is proper, as Appellant
presented his request for the appointment of counsel or an expert witness to the District
Court in the first instance by including it in his objections to the Magistrate Judge’s
Report & Recommendation. As it was so presented, we deem the motion implicitly
denied by the District Court and will consider it to be properly before us at this time.
                                             6
(requiring expert testimony in informed consent medical malpractice action to establish

existence of medically technical risks of which average juror has no knowledge);

Brannan v. Lankenau Hosp., 417 A.2d 196, 201 (Pa. 1980) (holding that expert testimony

must be introduced in medical malpractice actions to establish negligence). As we have

repeatedly held, “a complaint that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical mistreatment under

the Eighth Amendment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 764

(3d Cir. 1979); see also White v. Napoleon, 897 F.2d 103, (3d Cir. 1990) (“If a plaintiff’s

disagreement with a doctor’s professional judgment does not state a violation of the

Eighth Amendment, then certainly no claim is stated when a doctor disagrees with the

professional judgment of another doctor.”). The Magistrate Judge also relied on Boring

v. Kozakiewicz, 833 F. 2d 468 (3d Cir. 1987), in which this Court held that expert

testimony could be used in an Eighth or Fourteenth Amendment denial of medical care

claim to prove that a medical need was serious, in a situation where the seriousness of an

illness or injury would not be apparent to a lay person. See id. at 473. However, we have

also held that a medical need will be considered serious if it is “one that has been

diagnosed by a physician as requiring treatment or one that is so obvious that a lay person

would easily recognize the necessity for a doctor’s attention.” Monmouth Cnty. Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). As Appellees’ filings



Accordingly, we hereby consolidate C.A. No. 11-1453 and C.A. No. 11-1454 for
disposition.
                                              7
establish, Albert underwent disc herniation surgery immediately before entering the

prison, and had been “diagnosed with significant degenerative changes of the spine which

cannot be reversed.” At no time did Appellees assert that Albert did not suffer from a

serious medical condition. This question was not in dispute for the purposes of

Appellees’ motion for summary judgment. Rather, the question before the District Court

was whether Appellees were deliberately indifferent to Albert’s condition. Our review of

the record indicates that they were not.

         It is undisputed that Albert properly exhausted only one of his claims-- that

Appellees Golden and Trimbath failed to change his prescription and failed to refer him

for an outside consultation.2 With respect to this one claim, Albert does not demonstrate




2
    Specifically, Albert’s one fully exhausted claim alleged:

         I had back surgery before coming to F.C.I. Loretto-Low. I was on
         Acetaminophen 325 mg. to help alleviate my back pain. Recently I’ve
         gone to sick call three times for a stronger prescription. At night the back
         pain is so intense that I am unable to sleep and I must sit up in bed. I’m
         unable to take ibuprofen because of stomach problems, that is why Golden
         took me off the piroxixan 20 mg. It is urgent that I receive something
         stronger and much more effective for my back pain. My situation cannot
         be allowed to wait day after day. Please give this your utmost attention. I
         have already seen Dr. Leonard MD on September 25, 2006. I am not
         satisfied. He is more interested in my nutrition and diabetes than he is
         concerning the pain and suffering in my back. He has put me on capsaicn
         [sic] 60 mg. 0.025% cream. This is used to treat pain caused by arthritis,
         shingles, or tingling in arms and legs caused by diabetes. I would like to be
         checked out by a surgeon that deals primarily with neurosurgery or
         orthopedics, that can suggest proper medical procedures and medicine.

                                               8
that these Appellees acted with deliberate indifference to a serious risk to his health.3 See

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (holding that, to state a claim for an

Eighth Amendment denial of medical care, a plaintiff must show “(1) that the defendants

were deliberately indifferent to their medical needs and (2) that those needs were

serious”). Albert identifies himself as a chronic care patient with a number of drug

allergies. His voluminous medical records clearly reflect that Appellees attempted to

treat him within these parameters. While Albert complains that he was not permitted to

see an outside specialist, there is no indication that any such appointment would have

aided in his pain management. Albert clearly suffers from a number of physical ailments

and we understand that he is in great discomfort and is unhappy with the medical care he

has received. Based on the record before us, however, there is no basis on which to infer

that any of these Appellees consciously disregarded a serious risk to Albert’s health or

prevented him from receiving necessary medical treatment. To the extent Appellant also

alleged that Appellees’ conduct violated his rights to substantive due process, we agree

that Albert does not allege any conduct which “shocks the conscience.” Miller v. City of

Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999).

       Finally, aside from attacking their responses to his grievances, Albert does not


3
 Albert asserts that he filed a confidential grievance regarding Trimbath’s conduct and
never received a response, and that this claim should therefore be deemed exhausted as
well. However, he presents no evidence to overcome Appellees’ contention that his
confidential grievance was refused and he was told to follow the normal grievance
procedure. Accordingly, we will address only the one claim that has been properly
exhausted.
                                             9
allege any personal involvement on the parts of any of the other Appellees in the

provision of his medical care. See Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949

(2009) (explaining that in a § 1983 or Bivens action, “each Government official, his or

her title notwithstanding, is only liable for his or her own misconduct”). Absent

circumstances not present here, a prison administrator who delegates medical care

decisions to medical professionals does not have the requisite subjective intent to harm

the plaintiff or consciousness of a risk of serious harm. See Spruill v. Gillis, 372 F.3d

218, 236 (3d Cir. 2004). Accordingly, we agree that entry of summary judgment in favor

of these Appellees was proper as well. We also agree that Albert failed to state a claim

against the URC Committee or the Bureau of Prisons as entities. A Bivens claim can be

maintained only against individual federal officers, not against a federal entity. See

Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994).

       Based on the foregoing, and having consolidated the two appeals before us, we

will affirm the judgment of the District Court entering summary judgment in favor of

Appellees and denying Albert’s motion for summary judgment. We conclude that the

District Court did not abuse its discretion in denying Albert’s motion for the appointment

of counsel or for an expert witness. Appellees’ motion for summary action, filed in C.A.

No. 11-1454 is granted. Appellant’s motion to dismiss Appellees’ motion is denied.




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