BLD-176                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 10-1067
                                    ___________

                                  GARY RHINES,
                                      Appellant

                                          v.

                          WARDEN B. A. BLEDSOE;
                      PHYSICIAN ASST. LOUIS RAMIREZ;
                  STEVE BROWN, Health Services Administrator;
                      TROY WILLIAMSON, Former Warden
                    ____________________________________

                    Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                            (D.C. Civil No. 09-cv-00643)
                    District Judge: Honorable William J. Nealon
                  _______________________________________

      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
                                 April 22, 2010

     Before: McKEE, Chief Judge, RENDELL and CHAGARES, Circuit Judges


                                (Filed July 27, 2010)
                                     _________

                             OPINION OF THE COURT
                                   _________

PER CURIAM

     Gary Rhines, a federal prisoner formerly confined in the United States
Penitentiary, Lewisburg (“USP-Lewisburg”), Pennsylvania, appeals pro se from the

District Court’s entry of judgment in favor of defendants. Because we conclude that this

appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6

                                            I.

       Rhines filed a civil rights complaint pursuant to Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in the District Court against

the Warden and other prison officials. He claims that they were deliberately indifferent in

their medical treatment and care of a knee injury he sustained while incarcerated at USP-

Lewisburg. He seeks compensatory and punitive damages and declaratory relief.

       Rhines reported to sick call in May 2007 after injuring his knee while playing

basketball. Defendant Louis Ramirez examined his knee, provided treatment, and

ordered an x-ray. After filing an administrative remedy, Rhines received the x-ray in

early July 2007. He saw Ramirez again in late July 2007, complaining that his knee pain

and swelling continued. Ramirez found no swelling and found normal movement and

continued Rhines on medication for his strain. Thereafter, defendant Warden Williamson

responded to the administrative remedy, noting that Rhines had received the x-ray and

was continuing to receive medical treatment, and declined to intervene.

       In early August 2007, Rhines filed an administrative appeal, complaining that his

x-ray had been delayed one month and requesting an MRI. The regional director noted



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that Rhines had been treated and that an MRI was not indicated, and denied the appeal.

In October 2007, Rhines filed an appeal to the Bureau of Prisons (“BOP”) central office,

complaining of the care he had received and requesting an MRI. While his appeal was

pending, Rhines was examined in October 2007 and the need for an MRI was noted. The

central office denied his appeal in late November 2007. Rhines received an MRI in

March 2008, and underwent surgery in August 2008 to repair a torn medial meniscus. He

was returned to USP-Lewisburg with a thirty-day convalescent status and was authorized

to use the gym for self-therapy for six months.

       Rhines filed the complaint in April 2009, arguing that defendants are liable to him

for delaying the proper diagnostic test, emotional distress, negligence, reckless disregard

or deliberate indifference to his welfare, malfeasance, malice, racial discrimination,

inadequate medical care, and cruel and unusual punishment. Defendants filed a motion to

dismiss, or, in the alternative, for summary judgment. The District Court granted the

motion and entered judgment in favor of defendants. Rhines filed a timely notice of

appeal.

                                             II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing a

District Court’s grant of summary judgment, we apply the same test the District Court

applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Summary judgment

is proper when, viewing the evidence in the light most favorable to the non-moving party



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and drawing all inferences in that party’s favor, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Id. at 232; Fed. R. Civ. P.

56(c). The party opposing summary judgment “may not rest upon the mere allegations or

denials of the . . . pleading,” but “must set forth specific facts showing that there is a

genuine issue for trial.” Saldana, 260 F.3d at 232 (citing Fed. R. Civ. P. 56(e);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).

                                              III.

       Rhines argues that defendants’ acts and omissions during the course of treatment

for his injury constituted deliberate indifference, from which he suffered pain and

emotional distress. In order to state a claim under the Eighth Amendment for denial of

medical care, Rhines must show that defendants were deliberately indifferent to his

serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan,

511 U.S. 825, 834-35 (1994). Deliberate indifference can be shown by a prison official

“intentionally denying or delaying access to medical care or intentionally interfering with

the treatment once prescribed.” Estelle, 429 U.S. at 104-05. A claim that a doctor or

medical department was negligent does not state a claim for medical mistreatment under

the Eighth Amendment. Id. at 106. A medical need is serious if it “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 County Corr. Inst.

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



                                               4
       Rhines’ claims against defendants are based on his belief that he should have been

treated in a more timely manner and through the immediate use of an MRI. The record

shows that Rhines was afforded continual medical care for his knee injury, and that prison

staff treated and evaluated him on each visit. Therefore, we agree with the District Court

that Rhines cannot show defendants possessed the requisite mental state necessary to

prove an Eighth Amendment violation.

       Moreover, Rhines’ disagreement about his course of treatment, namely, that an

MRI should have been immediately ordered, does not demonstrate the defendants were

deliberately indifferent to his medical needs. Mere disagreement as to the proper medical

treatment will not support a claim under the Eighth Amendment. Spruill v. Gillis, 372

F.3d 218, 235 (3d Cir. 2004). 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.” Inmates of Allegheny County Jail v. Pierce, 612 F.2d

754, 762 (3d Cir. 1979) (citations omitted). Accordingly, summary judgment was

properly entered in favor of defendants.

       In addition, the District Court properly denied the claims against defendants

Warden Bledsoe and former Warden Williamson, because they are premised on a theory

of respondeat superior. Neither defendant–aside from Williamson’s denial of Rhines’

administrative remedy in 2007–was personally involved in his medical care or treatment,

and thus neither can be liable for an alleged civil rights violation. See Rode v.



                                             5
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

         Finally, to the extent Rhines challenges the District Court’s denial of his motion

for counsel, we conclude that the District Court did not abuse its discretion. An indigent

plaintiff seeking the appointment of counsel must present a claim having “some merit in

fact and law.” Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997); Tabron v. Grace, 6

F.3d 147, 155 (3d Cir. 1993). Rhines’ claims lack merit for the reasons already

discussed.

         For the foregoing reasons, we conclude that this appeal presents no substantial

question. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s

order.




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