                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-19-2007

Goodrich v. Clinton Cty Prison
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3741




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                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 04-3741


                            JERVIS LAVERN GOODRICH,
                                              Appellant,

                                           v.

          CLINTON COUNTY PRISON; LYCOMING-CLINTON “MHMR”;
        LAURA LEE, employed by MHMR, contracted by Clinton County Prison
      as a mental health counselor; WARDEN DURAN, at Clinton County Prison;
      DEPUTY WARDEN MOTTER, at Clinton County Prison; DEBRA DUFFY,
                                                Appellees.
                                     __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                       (03-1469)
                     District Judge: Honorable Sylvia Hilda Rambo

                              Argued November 27, 2006
                                   ____________

     Before: FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge 1

                           (Opinion Filed: January 19, 2007)

Carolyn F. Corwin
Jeffrey H. Lerner [Argued]
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
              Counsel for Appellant


      1
       The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Joseph P. Green
Lee, Green & Reiter, Inc.
115 East High Street
P.O. Box 179
Bellefonte, PA 16823
             Counsel for Appellees


                                          OPINION
                                    ____________________


Garth, Circuit Judge:

       On August 25, 2003, Jervis Lavern Goodrich, an inmate, filed a pro se civil rights

complaint, pursuant to 42 U.S.C. § 1983, claiming that prison health workers and prison

officials were deliberately indifferent to his serious medical needs in violation of his rights

under the Eighth Amendment to the United States Constitution. App. 24, 27. Goodrich also

moved for appointment of counsel. App. 134. The defendants–Clinton County;2 Lycoming-

Clinton County Mental Health and Mental Retardation Program (“MHMR”); Clinton County

Prison (“CCP”) mental health counselor Lauralee Dingler;3 CCP Warden Duran; CCP

Deputy Warden Motter; and Lycoming-Clinton County MHMR Director Debra Duffy–filed

a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. App. 65.

       After Goodrich filed an opposition, the District Court ordered, on July 21, 2004, that


       2
         In his complaint, Goodrich named Clinton County Prison as a defendant. Defendants
clarified, and Goodrich agreed, that his intention was to state a cause of action against Clinton
County.
       3
        Goodrich initially listed this defendant as “Laura Lee.” Defendants have identified her as
Lauralee Dingler, an employee of Lycoming-Clinton MHMR.

                                                 2
the motion be converted into a motion for summary judgment, interpreting Goodrich’s

opposition to contain statements contrary to allegations in the complaint. App. 159. The

District Court allowed the parties 20 days to file affidavits or supplemental documents

pertinent to the summary judgment motion. Shortly after Goodrich filed such documents, the

District Court denied his request for appointment of counsel. App. 16. Defendants then

requested, and the District Court granted, a ten-day extension to file a supplemental brief and

affidavits. App. 166, 170. On September 7, 2004, the District Court granted summary

judgment to defendants (hereinafter “appellees”). App. 7. The parties took no discovery prior

to the grant of summary judgment.

       On September 20, 2004, Goodrich filed a timely notice of appeal, and on December

7, 2005, this Court appointed counsel for Goodrich on appeal.4 App. 1, 6b. Goodrich

contends both that the grant of summary judgment was erroneous because there were genuine

issues of material fact on the issue of appellees’ deliberate indifference, and that the grant

of summary judgment was premature, because he was afforded no meaningful opportunity

to conduct discovery. He further maintains that the grant of summary judgment should be

vacated, because the District Court abused its discretion in denying his requests for

appointment of counsel. Lastly, Goodrich argues that if this Court reverses or vacates the

grant of summary judgment, it should order the District Court to appoint counsel on remand.

       Appellees’ position is that there was no error in the District Court’s decision to grant



       4
           We commend pro bono counsel for their efforts on behalf of the appellant.

                                                  3
summary judgment and no abuse of discretion in its denial of the motion to appoint counsel,

but that if this Court should reverse or vacate the grant of summary judgment, this Court

should not order that counsel be appointed on remand and should preclude Goodrich from

arguing on remand that he suffered a “physical injury” within the meaning of the Prison

Litigation Reform Act. See 42 U.S.C. § 1997e(e). Goodrich argues that this latter issue

should be left for the District Court to decide in the first instance.

       For the following reasons, we will affirm the grant of summary judgment and the

denial of the motion to appoint counsel.


                                               I

       Soon after arriving at CCP on September 11, 2002 on charges relating to conspiracy

to manufacture methamphetamine, Goodrich requested mental health treatment. On

September 19, he met with Lauralee Dingler, a Case Manager for Lycoming-Clinton County

MHMR, an entity which provides mental health counseling to inmates at CCP. App. 179.

Goodrich explained to Dingler that he suffered from bipolar disorder and severe depression,

and told her what medications he had been taking. App. 92. She asked how he was feeling,

and Goodrich informed her that he was “very depressed and . . . having rapid moodswings,”

making him “feel completely unstable.” App. 92. Upon Dingler’s request, Goodrich signed

a release permitting CCP to obtain medical records from the psychiatrist who treated him

prior to his incarceration. He also gave Dingler the phone number for Bradford County

Prison, where he had previously been incarcerated, so that she could call “to verify that [he]

                                               4
must receive medications while incarcerated.” App. 92.

       Two days later, Goodrich made a second request for medication. He also notified an

unidentified prison officer that he had not yet received a response from Dingler. App. 92.

       Dingler met with Goodrich again on October 9. App. 92, 179. Goodrich told her that

he had been “bouncing off the walls of my cell with crazy thoughts” and “hidding [sic] from

inmates and staff because I don’t know how to take them and [am] worried how I might

react.” App. 93. Dingler told him that she had spoken with his psychiatrist, who told her that

Goodrich had been self-medicating, leading the psychiatrist to discontinue Goodrich’s

prescriptions. App. 93, 190. Goodrich responded that he had missed doses in the past, but

that it was impossible to miss doses in prison. Dingler responded that he did not need

medication, and that “everyone who comes to jail suffers from some form of depression or

another.” App. 93. He told her that his “disorders are disabling,” and that he received

disability checks from the Social Security Administration because of his mental illness. App.

93. She said that she “speak[s] with the gaurds [sic] from time to time, they know what to

watch for and nothings [sic] been said about you.” App. 93.

       A month or two later, Goodrich informed Deputy Warden Motter that “mental health

is refusing to give [him] the proper medication.” App. 94. When Motter instructed Goodrich

to “put in a request to the doctor,” Goodrich informed her that he already had, but had

received “no answer.” App. 94. Goodrich also said he had “put in at least 6 requests [to

mental health], [but] she [Dingler] won’t answer any of them, and furthermore, she doesn’t



                                              5
do her job.” App. 94. Motter told Goodrich she would “check into it.” App. 94.

       In early 2003, Goodrich was appointed a new defense counsel in connection with his

criminal case, which had been transferred from state to federal prosecution. Goodrich

notified his new counsel that he had not been given medication. App. 94. In February 2003,

at a hearing before Magistrate Judge Askey in connection with the criminal case, Goodrich’s

defense counsel informed the court that Goodrich was not being given medication for his

mental illnesses. In an order dated February 26, 2003, Magistrate Judge Askey

“recommend[ed] that the U.S. Marshal apprise the detaining authorities of [Goodrich’s]

reported history of depression and bipolar personality disorder, and ensure that appropriate

care is provided.” App. 103. He further “recommend[ed] that [Goodrich] be evaluated by a

mental health professional and provided with any treatment recommended by that mental

health professional.” App. 103-04.

       In response to the magistrate judge’s recommendation, Dingler met with Goodrich

again on March 14 and March 17, 2003. App. 94, 179. She conducted an evaluation in which

she observed, inter alia, that Goodrich “did not appear to act in a delusional or bizzare

manner nor did he display any pressured speech.” App. 179. Dingler concluded that Goodrich

did not “display[] clinical symptoms which would warrant a referral to the Psychiatrist for

medications,” and she “believed that Mr. Goodrich was displaying characteristics of ‘drug

seeking.’” App. 179.

       Goodrich subsequently appeared before District Judge Jones in connection with his



                                             6
criminal case, and expressed his frustration at his inability to obtain medication. App. 94-95.

At the request of Judge Jones, Goodrich’s counsel communicated with the psychiatrist who

had treated Goodrich prior to his incarceration. In a letter dated April 8, 2003, the psychiatrist

confirmed that he had diagnosed Goodrich as suffering from bipolar II disorder, for which

“[a]ppropriate treatment would include a mood stabilizing medication in combination with

an antidepressant.” App. 110. On April 21, 2003, Goodrich’s counsel forwarded this letter

to Supervisory Deputy U.S. Marshal James Cunfer, along with a cover letter explaining that

Magistrate Judge Askey had requested that “Goodrich be seen by a physician [but] [t]his was

not done.” App. 109.5

       Goodrich made written requests “to see someone in mental health about medication

for severe depression and bipolar disorder” on April 7, April 8, April 24, and April 28. App.

106-107. During this period, he experienced problems with the prison staff and had

altercations with inmates, leading him to receive 60 days “in the hole.” App. 95. He wrote

to Warden Duran to “explain what was happening and tell[] him if I had my medication that

mental health refuse[s] to give me, I wouldn’t be in the hole or causing problems.” App. 95.

Duran did not respond. App. 95.

       In late April or early May 2003, Goodrich was taken to see a doctor. It is not clear

from the record whether this doctor was a psychiatrist. App. 161. The doctor prescribed

Paxil, although Goodrich told him that Paxil would not help. App. 161.

       5
        Actually, Magistrate Judge Askey recommended that Goodrich be seen by a “mental
health professional.” See App. 104.

                                                7
       When Goodrich told his lawyer that he had been placed on Paxil but not on mood

stabilizers, his lawyer responded that “it[’]s time to get you out of there, Judge Jones said we

can’t proceed any further with your case untill [sic] your [sic] stable enough to make a

rational decisions [sic].” App. 96. A few days later, Goodrich was transferred to Snyder

County Prison.

       At Snyder County Prison, Goodrich underwent a mental health evaluation where he

was diagnosed with attention-deficit hyperactivity disorder and bipolar disorder, and was

placed on medication. App. 96.


                                               II

       We exercise de novo review of a district court’s grant of summary judgment. See, e.g.,

Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005). Summary judgment

is appropriate only where the moving party has shown that there is no genuine dispute of

material fact and that it is entitled to judgment as a matter of law. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). “Summary judgment . . . must not

be granted where there is a genuine dispute about a material fact, ‘that is, if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.’” Fasold v.

Justice, 409 F.3d 178, 183 (3d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). In determining whether there exists a genuine dispute as to a material fact,

we resolve all ambiguities and draw all reasonable inferences in favor of the non-moving

party. See, e.g., Regents of Mercersburg College v. Republic Franklin Ins. Co., 458 F.3d 159,

                                               8
163 (3d Cir. 2006).

       We review a district court’s decision to deny appointment of counsel under 28 U.S.C.

§ 1915(e)(1) for abuse of discretion. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).


                                               III

       Goodrich claims that the District Court erred in granting summary judgment to

appellees on his § 1983 claim that appellees violated his rights under the Eighth Amendment

to the United States Constitution. He argues that he presented sufficient evidence 6 from

which a reasonable jury could conclude that Dingler, Duran, Motter, and Duffy were

deliberately indifferent to his serious medical needs and that Clinton County and Lycoming-

Clinton County MHMR had a policy or custom of denying prisoners treatment for mental

illnesses.

       A prison official’s deliberate indifference to an inmate’s serious medical needs

constitutes a violation of the Eighth Amendment and states a cause of action under § 1983.

See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The Eighth Amendment claim has

objective and subjective components. First, the prisoner must show that his medical need is,

objectively, “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1997) (citation

omitted). Second, he must establish that the prison official acted with subjective deliberate



       6
        Goodrich argues in the alternative that to the extent he did not present sufficient
evidence to survive the summary judgment motion, it was a result of the denial of his motion to
appoint counsel. This argument is indistinguishable from his claim that the District Court’s
denial of that motion was an abuse of discretion, which we discuss and reject infra.

                                               9
indifference, that is, that the official was aware of a substantial risk of serious harm to the

prisoner but disregarded that risk by failing to take reasonable measures to abate it. Farmer

v. Brennan, 511 U.S. 825, 837 (1994).

       A medical need qualifies as “serious” for purposes of Eighth Amendment analysis if,

for example, “it is one that has been diagnosed by a physician as requiring treatment.”

Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)

(quotation and citation omitted). In addition, “if unnecessary and wanton infliction of pain

results as a consequence of denial or delay in the provision of adequate medical care, the

medical need is of the serious nature contemplated by the eighth amendment.” Id. (quotation

and citation omitted). A mental illness may constitute a serious medical need. Inmates of the

Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979) (“Although most

challenges to prison medical treatment have focused on the alleged deficiencies of medical

treatment for physical ills, we perceive no reason why psychological or psychiatric care

should not be held to the same standard.”).

       An inmate can show “deliberate indifference” where, for example, “prison authorities

deny reasonable requests for medical treatment . . . and such denial exposes the inmate to

undue suffering.” Lanzaro, 834 F.2d at 346 (quotation and citation omitted). Alternatively,

“deliberate indifference” is shown “where knowledge of the need for medical care [is

accompanied by the] . . . intentional refusal to provide that care” or where “prison authorities

prevent an inmate from receiving recommended treatment for serious medical needs or deny



                                              10
access to [a] physician capable of evaluating the need for such treatment.” Id. at 346-47

(quotations and citations omitted). It is clear, however, that allegations of negligence do not

rise to the level of a constitutional violation. Estelle, 429 U.S. at 106. Finally, “whether or

not a defendant’s conduct amounts to deliberate indifference has been described as a classic

issue for the fact finder.” A.M. ex. rel. J.M.K. v. Luzerne County Juvenile Detention Ctr., 372

F.3d 572, 588 (3d Cir. 2004) (quoting Nicini v. Morra, 212 F.3d 798, 816 (3d Cir. 2000)

(Rendell, J., dissenting)).

       We are satisfied that Goodrich has presented evidence of a “serious” medical need.

His mental illnesses were diagnosed by psychiatrists as requiring treatment, both prior to his

incarceration at CCP and immediately after his transfer to Snyder County Prison. App. 92,

96, 110, 112-14. In addition, Goodrich provided a vivid description of his suffering during

the period when he was not medicated. See, e.g., App. 25, 92-93, 95 (characterizing this time

as “8 months of mental torture” during which he “felt like [he] was losing control of [his]

thoughts,” was “very paranoid,” and “completely shut down and [he] couldn’t do anything

about it . . . [He] just staired [sic] for days on end.”). From this evidence, a reasonable fact

finder could conclude that the period when he was denied medication resulted in an

“unnecessary and wanton infliction of pain,” thus qualifying his medical needs as “serious.”

Lanzaro, 834 F.2d at 347. See also Pierce, 612 F.2d at 763 (noting the possibility that “the

failure to provide necessary psychological or psychiatric treatment to inmates with serious

mental or emotional disturbances will result in the infliction of pain and suffering just as real



                                               11
as would result from the failure to treat serious physical ailments”).

       However, the District Court was correct to conclude that appellees demonstrated that

Goodrich had failed to show a genuine issue of material fact on the issue of Lauralee

Dingler’s “deliberate indifference.” The undisputed evidence shows that after Goodrich

informed Dingler of his diagnoses at their first meeting on September 19, 2002, she

communicated with his pre-incarceration psychiatrist who told her that he had discontinued

Goodrich’s medication because Goodrich had been “self-medicating.” App. 93, 109. In light

of this information, Dingler told Goodrich on October 9, 2002, that she had determined that

medication was unnecessary, and that Goodrich’s depression was merely characteristic of

someone facing a period of incarceration. App. 93. After the Magistrate Judge, on February

26, 2003, “recommend[ed] that [Goodrich] be evaluated by a mental health professional,”

Dingler again met with Goodrich on March 14 and March 17, 2003. App. 103-04, 94, 178-

81. From these meetings, she concluded that Goodrich did not “display[] clinical symptoms

which would warrant a referral to the Psychiatrist for medications” and instead, that

Goodrich was “displaying characteristics of ‘drug seeking.’” App. 179.

       We conclude that there is no dispute about any material fact sufficient to preclude a

grant of summary judgment for Dingler. There is no dispute that Dingler, upon consultation

with Goodrich’s physician, learned that Goodrich had abused his prescription by self-

medicating. Further, there is no dispute that Dingler engaged in a good-faith clinical

assessment of Goodrich’s symptoms, concluding on several visits that his condition did not



                                             12
warrant medication. Taken together, Dingler’s consultation with Goodrich’s physician and

her clinical assessment of Goodrich clearly indicate an exercise of medical judgment, rather

than deliberate indifference to his medical needs.

       Deliberate indifference is a subjective standard, based on a defendant’s state of mind:

the undisputed fact that Dingler took the aforementioned steps to evaluate and treat

Goodrich’s mental illness precludes a finding that she wilfully ignored a substantial risk of

harm. While her ultimate decision might have been negligent or erroneous, there is no

indication that Dingler’s mind was sufficiently culpable to constitute deliberate indifference.




                                                IV

       Next, Goodrich argues that CCP Warden Duran, CCP Deputy Warden Motter, and

Lycoming-Clinton County MHMR Director Duffy were deliberately indifferent to his serious

medical needs. He finds liability here under three distinct theories: (1) as supervisors of

Dingler; (2) their personal involvement in denying him treatment for his mental illnesses; and

(3) as policymakers responsible for establishing or maintaining the policies or customs that

caused a violation of his constitutional rights.

       First, while a supervisor may be personally liable under § 1983 “if he or she

participated in violating the plaintiff’s rights, directed others to violate them, or, as the person

in charge, had knowledge of and acquiesced in his subordinates’ violations,” A.M., 372 F.3d

at 586, as this Court has already found Goodrich’s allegations insufficient to establish that



                                                13
Dingler violated Goodrich’s Eighth Amendment rights, these same allegations cannot

establish that Dingler’s supervisors violated his rights.

       Secondly, as for his claim of liability based on personal involvement, none of

Goodrich’s submissions contain any allegations respecting Duffy, and thus summary

judgment in Duffy’s favor on this theory was proper. In addition, the only allegations

respecting Duran and Motter were that Goodrich communicated to them that he was not

getting the medication he said he needed and that Dingler was unresponsive to his requests.

However, as the District Court explained, non-physician defendants cannot be “considered

deliberately indifferent simply because they failed to respond directly to the medical

complaints of a prisoner who was already being treated” by the prison’s medical staff.

Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Because the prison’s medical staff,

through Dingler, was providing medical consultation and evaluation, Duran and Motter

cannot be considered deliberately indifferent for failing to second-guess the medical staff’s

appraisal of the situation.

       Finally, Goodrich’s claims against Duffy, Duran, and Motter based on their role as

policymakers depends on the viability of Goodrich’s claims against Clinton County and

Lycoming-Clinton County MHMR. Goodrich argues that the District Court was in error in

dismissing his claims against Clinton County and Lycoming-Clinton County MHMR because

he presented sufficient evidence that Clinton County and Lycoming-Clinton County MHMR

had a policy or custom of deliberate indifference to prisoners’ serious mental illnesses. These



                                              14
municipal entities may be liable based on a suit brought pursuant to § 1983 only if “the

alleged constitutional transgression implements or executes a policy, regulation or decision

officially adopted by the governing body or informally adopted by custom.” Beck v. City of

Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citation omitted). Here, however, Goodrich has

not sufficiently alleged any constitutional transgression. Without a violation of his

constitutional rights, Clinton County and Lycoming-Clinton County MHMR of course cannot

be liable based on the theory that they established or maintained an unconstitutional policy

or custom responsible for violating his rights. It follows, then, that Duffy, Duran, and Motter

cannot be liable as policymakers.


                                              V

         Goodrich next maintains that the grant of summary judgment should be vacated

because he was given no meaningful opportunity to conduct discovery. He argues that the

20 days the District Court granted the parties to submit materials pertinent to the newly-

converted motion for summary judgment was an insufficient amount of time for him to

engage in meaningful discovery. However, Goodrich did not raise this issue in the District

Court, and although we have discretion to address issues not raised below, we do so only

“when prompted by exceptional circumstances.” Tabron, 6 F.3d at 153 n.2 (quotations and

citation omitted). We find no exceptional circumstances here and decline to address this

issue.




                                              15
                                              VI

       Lastly, Goodrich argues that the District Court’s denial of his motion to appoint

counsel was in error. While there is no constitutional or statutory right to counsel in a civil

case, see e.g., Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997) (collecting cases),

the court “may request an attorney to represent any person unable to afford counsel.” 28

U.S.C. § 1915(e)(1). Such appointment is a discretionary decision, and as such we review the

District Court’s denial of Goodrich’s motion to appoint counsel for abuse of discretion.

Tabron, 6 F.3d at 157-58 (“We emphasize that appointment of counsel remains a matter of

discretion; section [1915(e)(1)] gives district courts broad discretion to determine whether

appointment of counsel is warranted, and the determination must be made on a case-by-case

basis.”).

       In Tabron, we identified a number of factors a district court should consider in

determining whether to appoint counsel. First, the court should make a threshold

determination of whether “the plaintiff’s claim has arguable merit in fact and law.” Tabron,

6 F.3d at 155. If the case has arguable merit, the court should proceed to consider (i) the

plaintiff’s ability to present his own case; (ii) the complexity of the legal issues; (iii) the

degree to which factual investigation will be necessary and the ability of the plaintiff to

pursue such investigation; (iv) the extent to which a case is likely to turn on credibility

determinations; (v) whether the case will require testimony of expert witnesses; and (vi)

whether the plaintiff can afford and attain counsel on his own. See Parham, 126 F.3d at 457-



                                              16
58 (citing Tabron, 6 F.3d at 155-56, 157 n.5). This list of factors is not exhaustive.

       Here, after assuming “solely for the purpose of deciding this motion, that [Goodrich’s

claim] has arguable merit,” the District Court proceeded to find that the Tabron factors

weighed against appointment. App. 18. The District Court explained that because Goodrich

had demonstrated that he was capable of “presenting comprehensible arguments,” and

because the “legal issues are relatively uncomplicated,” Goodrich would not “suffer

prejudice if he is forced to prosecute this case on his own.” App. 18.

       We agree with the District Court’s analysis and conclusion, and we thus hold that the

District Court did not abuse its discretion here.


CONCLUSION

       For the foregoing reasons, both the District Court’s order granting summary judgment

and the District Court’s order denying the motion to appoint counsel will be affirmed.




                                              17
                                                                                                   18

POLLAK, District Judge, dissenting in part:

        I agree with the court that the District Court’s grant of summary judgment in favor of

defendant-appellees Clinton County, Lycoming-Clinton County Mental Health and Mental

Retardation Program (MHMR), MHMR director Debra Duffy, Clinton County Prison (CCP)

Warden Duran, and CCP Deputy Warden Motter should be affirmed—although, as explained

below, I come to this conclusion for reasons somewhat different from those stated by the court.

See infra note 2. I also agree that the District Court’s denial of plaintiff-appellant Jervis

Goodrich’s motion to appoint counsel did not constitute an abuse of discretion. See infra note 1.

However, I respectfully dissent from the court’s conclusion that the District Court’s grant of

summary judgment in favor of defendant-appellee Laura Lee Dingler should be affirmed. I am of

the view that Goodrich, through his pro se efforts, has proffered enough evidence to create a

genuine issue of fact as to whether Dingler acted with deliberate indifference to his serious

medical needs.

        The court’s determination that the record reveals no evidence of deliberate indifference

by Dingler rests on the court’s conclusion that “Dingler’s consulation with Goodrich’s physician

and her clinical assessment of Goodrich clearly indicate an exercise of medical judgment, rather

than deliberate indifference to his medical needs.” ante at --- --- ----.

        I part ways with my colleagues because I do not perceive Goodrich’s suit to be predicated

on a theory that Dingler carried out a “clinical assessment” and

“an exercise of medical judgment” that she knew to be markedly inadequate to meet Goodrich’s

serious needs. Rather, appellant’s theory of liability is that, during Goodrich’s several months as

an inmate at CCP, Dingler—who was not a medical professional—effectively and deliberately
                                                                                             19

denied him access to medical care.

       In Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979),

this court observed that, when assessing a prisoner’s deliberate indifference claims,

“considerable latitude [should be given] to prison medical authorities” lest courts come

to “second-guess the propriety or adequacy of a particular course of treatment . . .

(which) remains a question of sound professional judgment.” The court went on to

explain that “[i]mplicit in this deference to prison medical authorities is the assumption

that . . . an informed judgment has, in fact, been made.” Id. But when an informed

judgment has not been made—where, for example, the prison official in question does

not have medical training—concerns about second-guessing professional determinations

are simply not at issue. Nothing in the record suggests that Dingler had any medical

training whatsoever—certainly no training of a sort qualifying her to diagnose and treat

mental illness. Nor does Dingler so contend. Accordingly, Goodrich’s claim should not

be evaluated under the deferential standard that this court reserves for review of

determinations by prison medical authorities. Rather, we should consider his claim in

light of this court’s observation that, when “prison authorities prevent an inmate from

receiving recommended treatment for serious medical needs or deny access to a physician

capable of evaluating the need for such treatment, the constitutional standard of Estelle

[v. Gamble, 429 U.S. 97 (1976)] has been violated.” Id.

       Goodrich has offered undisputed evidence that Dingler knew Goodrich had a
                                                                                                 20

diagnosed mental illness. App. 93. In addition, the record establishes that (1) federal

Magistrate Judge William H. Askey, by order dated February 25, 2003, recommended

that Goodrich “be evaluated by a mental health professional and provided with any

treatment recommended by that professional;” and, (2) Dingler, in March of 2003,

declined to comply with that recommendation based on her own non-expert assessment

that “no referral to [a] psychiatrist was warranted.” See App. 179 (Dingler affidavit); see

also id. at 103-04 (order of Magistrate Judge Askey); id. at 180 (notes from Dingler’s

March 17, 2003 meeting with Goodrich, mentioning “referral by federal judge”).

       Thus, it seems to me that Goodrich, by his own unaided efforts, has brought

forward evidence on the basis of which a fact-finder could rationally conclude that, while

Goodrich was an inmate at CCP, Dingler “den[ied him] access to a physician capable of

evaluating the need for . . . treatment” of his “serious medical needs.” Pierce, 612 F.2d at

763.7 Accordingly, I would vacate the District Court’s grant of summary judgment in



       7
          I have noted that Goodrich proceeded pro se in developing the evidence which, in my
judgment, is sufficient to defeat summary judgment in favor of Dingler. Had Goodrich been
represented by counsel in the District Court, it may well be that counsel would have developed
additional evidence. Nonetheless, I do not question the District Court’s denial of Goodrich’s
motion for the appointment of counsel at the time the District Court ruled. That ruling, as my
colleagues explain, was grounded in factors that properly informed the District Court’s exercise
of its discretionary authority. However, I take it for granted that, if my colleagues were to agree
with my view that summary judgment should not have been granted in favor of Dingler, on
remand for further proceedings the District Court would undertake to appoint counsel for
Goodrich. See App. 18 (District Court order stating that Goodrich’s motion for appointment of
counsel “will be denied” but that “[i]n the event . . . that future proceedings demonstrate the need
for counsel, the matter may be reconsidered either by the court, on its own initiative, or upon a
motion properly filed by [Goodrich]”).
                                                                                                21

favor of Dingler and remand this matter for further proceedings.8




       8
         My agreement with the District Court’s grant of summary judgment in favor of the other
appellees is predicated on the fact that Goodrich has offered no evidence tending to establish that
Dingler’s conduct was in any significant sense affected by an act or omission of any other
appellee.
