                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-1242
                                       __________

                                     LINDELL TATE,
                                                   Appellant

                                             v.

              S. WIGGINS, Hearing Examiner; CARR, Corrections Officer;
         CHRISTIE ACHENCK, Grievance Coordinator; MARK BURKE, P.S.A.;
      JENNIFER MCCLELLAND, Unit Manager; BRIAN HYDE, Health Administrator;
         MELISSA HAINSWORTH, Superintendent; ERIC TICE, Superintendent
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3:18-cv-00230)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 21, 2020
           Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges

                            (Opinion filed: February 24, 2020)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Lindell Tate, a Pennsylvania inmate, appeals pro se from an order of the United

States District Court for the Western District of Pennsylvania sua sponte dismissing his

42 U.S.C. § 1983 complaint for failure to state a claim. For the following reasons, we

will affirm in part, vacate in part, and remand to the District Court for further

proceedings.

                                                  I.

       Tate, a Pennsylvania prisoner confined at SCI-Somerset, filed a complaint alleging

that he was in the restricted housing unit (RHU) on June 20, 2018, when Disciplinary

Hearing Officer Wiggins “became hypersexual[,] … exclaiming strong sexual

obscenities, grinding his backside on inmates’ cell door[s], while confessing that his

prejudice as a decision maker during misconduct hearings was only in fact because the

inmates don’t ‘lick enough ass.’” Tate claimed that this incident resulted in “sexual

trauma[,]” such that “[e]very time he seeks sexual pleasure ([t]hrough self pleasure)

defendant Wiggins’ charade is recalled to his mind, then nothing works.” Tate also

claimed that prison staff ignored his requests for mental health treatment. He further

complained that, while in the RHU for 90 days, he was placed in a seven by ten foot cell,

showered only three times per week, received “an hour of yard” (without specifying a

frequency), and had to wait 14 hours between dinner and breakfast. Finally, Tate

asserted that the disciplinary hearing which led to his confinement in the RHU was

“contrary to impartiality.” He sought compensatory, punitive, and general damages, as

well as expungement of the misconduct charges which led to his placement in the RHU.



                                              2
       A Magistrate Judge recommended sua sponte dismissing the complaint for failure

to state a claim under 28 U.S.C. § 1915A, stating that the “defects in the complaint are

numerous.” In particular, the Magistrate Judge concluded that Tate did not allege a

bodily injury or serious medical need. According to the Magistrate Judge, even if Tate’s

condition did constitute a serious medical need, “that holding would be so novel that the

doctrine of qualified immunity would protect the medical department defendants from

liability for damages.” In addition, the Magistrate Judge concluded that Tate could not

use a civil lawsuit as a substitute for an appeal from a disciplinary sanction until the

sanction has been overturned. Finally, the Magistrate Judge denied leave to amend,

stating that “[h]aving litigation become a correspondence course with ‘pro se litigants

with fanciful notions of their rights and deprivations,’ Powell v. Symons, 680 F.3d 301,

307 (3d Cir. 2012), is a waste of scarce judicial resources.” Tate filed objections. By

order entered December 17, 2018, the District Court adopted the Report and

Recommendation and dismissed the complaint for failure to state a claim without leave to

amend. Tate appealed.1

                                                  II.

       We have jurisdiction under 28 U.S.C. § 1291, and our review of a § 1915A(b)(1)

dismissal for failure to state a claim is guided by the same de novo standard used to



1
 Although Tate’s notice of appeal was filed more than 30 days after the District Court
entered judgment on December 17, 2018, see Fed. R. App. P. 4(a)(1)(A), the District
Court subsequently granted his motion to extend the time to appeal under Federal Rule of
Appellate Procedure 4(a)(5) and deemed his appeal timely filed. See Ramseur v. Beyer,
921 F.2d 504, 507 (3d Cir. 1990).
                                              3
evaluate successful motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Harnage v.

Lightner, 916 F.3d 138, 140-41 (2d Cir. 2019) (per curiam); cf. Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000) (“Our review of the District Court’s sua sponte dismissal for

failure to state a claim, which was authorized by 28 U.S.C. § 1915(e)(2)(B)(ii) . . ., like

that for dismissal under Fed. R. Civ. P. 12(b)(6), is plenary.”).

                                                  III.

       The Supreme Court has held that “deliberate indifference to serious medical needs

of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by

the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “In order to state

a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” Id. at 106. Establishing a

claim requires proving both an objective component — “a serious medical need”—and a

subjective component — “acts or omissions by prison officials that indicate deliberate

indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d

Cir. 2003).

       The District Court erred in dismissing Tate’s claim that the defendants ignored his

requests for mental health treatment. According to the complaint, prison medical staff

diagnosed Tate with a psychosomatic condition on July 17, 2018, and referred him to the

psychology department. Tate attempted to get help from that department, submitting two

requests to speak to someone “about his embarrassing physical ailment, psychological

unstableness, and the haunting memory of the perverted actions and words of defendant

Wiggins.” Tate received no response to those requests. With his “emotional distress

                                              4
mounting,” Tate continued to press for help, submitting “several other requests” for

treatment. In one of those requests, Tate “expressed … that the loss of his father, loss of

his freedom, feeling like he is being forced into oral sex, and now feeling as if [he was]

being treated as a pariah because of his reporting [of prison officials] all seemed to be

overwhelming at times throughout the day and he was going through a struggle with not

killing himself.” The psychology department eventually did respond, telling Tate, “we

encourage you to follow the grievance system if you feel that it is necessary.” Tate

apparently attempted to use that system, but asserted that “[h]e has been totally denied his

speaking with anyone in the psychology department (even after he grieved).”2 Notably,

Tate claimed that the prison health administrator “had knowledge of [his] physical and

mental ailment[s] through ‘inmate sick call’ and an inmate grievance.” According to

Tate, the denial of psychological care in the RHU had a “profound” effect on his

“recovery from the ailment of his mental faculty, forcing him to fight through PTSD,

anxiety disorders, and depression.”3


2
 Tate did concede, however, that after being released from the RHU, he was able to
“knock on the door of his unit psychologist and speak with her.” On October 19, 2018,
he was diagnosed with post-traumatic stress disorder, anxiety disorders, and depression.
3
  A prisoner may not bring a federal civil action for damages for mental or emotional
injury suffered while in custody absent a showing of physical injury. See 42 U.S.C.
§ 1997e(e). Thus, because Tate did not allege a physical injury resulting from the
defendants’ alleged failure to respond to his requests for psychological treatment, he was
not entitled to compensatory damages. But the District Court should have provided Tate
with leave to amend to allege a physical injury. Mitchell v. Horn, 318 F.3d 523, 534 (3d
Cir. 2003). And § 1997e(e) does not bar Tate’s claims to the extent that he sought
nominal and punitive damages, or declaratory relief. See id. at 533; Allah v. Al-Hafeez,
226 F.3d 247, 251 (3d Cir. 2000) (“Although Allah does not expressly seek nominal
damages in his complaint, this court has held that ‘it is not necessary to allege nominal
                                              5
       Given these allegations, which must be accepted as true, Tate has stated a claim

for deliberate indifference to serious medical needs. Prison medical staff determined that

his initial complaints warranted a referral to the psychology department. See Atkinson v.

Taylor, 316 F.3d 257, 266 (3d Cir.2003) (recognizing a serious medical need includes

one that “has been diagnosed by a physician as requiring treatment”). Tate repeatedly

sought treatment from that department, identifying the issues that were causing him

anguish and specifically indicating that he was struggling with not killing himself. See

Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005) (stating that “[a]

particular vulnerability to suicide represents a serious medical need”); cf. Palakovic v.

Wetzel, 854 F.3d 209, 230 (3d Cir. 2017) (“Our statements in [prior cases] requiring a

plaintiff to demonstrate a ‘strong likelihood’ of self-harm were never intended to demand

a heightened showing at the pleading stage by demonstrating … that the plaintiff’s

suicide was temporally imminent or somehow clinically inevitable.”). But the

psychology department ignored Tate’s requests while he was in the RHU. Thus, it

appears that Tate was denied psychological care that prison medical staff themselves

believed was necessary. See Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (“[A]

deliberate indifference claim can lie where prison officials deliberately ignore the

medical recommendations of a prisoner’s treating physicians.”). Therefore, we will

vacate the dismissal of this claim and remand to the District Court for further

proceedings.




damages.’” (quoting Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965)).
                                             6
       We conclude, however, that the District Court properly dismissed Tate’s

remaining claims. As noted, Tate alleged that the defendants failed to treat him for

erectile dysfunction. Even assuming that Tate’s condition constitutes a serious medical

need, we agree that the defendants are entitled to qualified immunity because there is no

clearly established right involved here. See Michtavi v. Scism, 808 F.3d 203, 207 (3d

Cir. 2015) (holding that prison officials were entitled to qualified immunity because

“[t]here is no Supreme Court or appellate precedent holding that prison officials must

treat retrograde ejaculation, infertility, or erectile dysfunction; in fact, the weight of

authority is to the contrary”); see also Story v. Foote, 782 F.3d 968, 969-70 (8th Cir.

2015) (stating that “we may consider the defense of qualified immunity in reviewing the

district court’s preservice dismissal”). In addition, Officer Wiggins’ actions and

statements did not violate the Constitution. See McBride v. Deer, 240 F.3d 1287, 1291

n.3 (10th Cir. 2001) (explaining that “acts or omissions resulting in an inmate being

subjected to nothing more than threats and verbal taunts do not violate the Eighth

Amendment”); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone,

simple verbal harassment does not constitute cruel and unusual punishment, deprive a

prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.”).

And the conditions that Tate experienced in the RHU for 90 days did not amount to an

atypical and significant hardship. Sandin v. Conner, 515 U.S. 472, 484 (1995); Smith v.

Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (holding that seven months in disciplinary

segregation is insufficient to trigger a due process violation). Furthermore, although Tate

claimed that his disciplinary hearing was “contrary to impartiality,” that claim lacks merit

                                               7
in the absence of a protected liberty interest. See Griffin v. Vaughn, 112 F.3d 703, 708-

09 (3d Cir. 1997) (holding that, based on Sandin, failure to give a prisoner a hearing prior

to his transfer to administrative custody was not a violation of due process because the

custody did not impose an “atypical and significant hardship”). Finally, amendment of

these claims would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002).

                                                    IV.

         For the reasons given, we vacate the District Court dismissal of Tate’s mental

health treatment claim and will remand for further proceedings. In all other respects, we

will affirm the District Court’s judgment.4




4
    Tate’s motion for default judgment is denied.
                                              8
