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


6-12-2009

Smith v. Lycoming County
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3634




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

Recommended Citation
"Smith v. Lycoming County" (2009). 2009 Decisions. Paper 1189.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1189


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.
CLD-65                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3634


                                  STEVEN SMITH,

                                                      Appellant

                                           v.

THE MUNICIPALITY OF LYCOMING COUNTY; LYCOMING COUNTY PRISON
  BOARD AND ITS OFFICERS AND MEMBERS; PRISON WARDEN DAVID
     DESMOND; DR. WILLIAM KEENAN, Prison Physician; DR. JEFFREY
     VERZELLA, Prison Physician; DR. MARK SCHILDT, Prison Physician;
  DR. TIMOTHY HEILMAN, Prison Physician; DR. SUSAN MOWATT, Prison
   Physician; DR. VICTOR HUANG, Prison Physician; CATHERINE LYNCH,
  Prison Nurse; KIM POORMAN Prison Nurse; UNIDENTIFIED PHYSICIANS
                 OF ATTENDANCE JOHN AND JANE DOES


                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 05-cv-01729)
                   District Judge: Honorable Christopher C. Conner


         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
                                   December 6, 2007

              Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                            (Opinion filed: June 12, 2009)


                                       OPINION
PER CURIAM

       Steven Smith, a state prisoner, suffers from a host of maladies, including hepatitis,

variants of the herpes virus, genital warts, a compromised immune system because of the

removal of his spleen, and lingering complications from the bowel obstruction surgery he

required after he swallowed the handles of two plastic spoons. He sued the municipality

of Lycoming County, the Lycoming County Prison Board (and its officers and members),

the prison warden, six prison doctors, and two prison nurses, mostly claiming violations

of the Eighth Amendment’s prohibition against cruel and unusual punishment.1

       Defendants Lycoming County, Lycoming County Prison Board, the warden, and

Nurses Lynch and Portman filed a joint motion to dismiss the complaint. The District

Court granted the motion in part and denied it in part. Specifically, the District Court

held that any claims against those defendants arising before August 16, 2003, were barred

by the statute of limitations. The District Court also dismissed the complaint against

Lycoming County because Smith had not alleged that the municipality had caused any

constitutional violation under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Concluding that Smith’s dissatisfaction with the grievance procedure did not rise to the

level of a constitutional violation, and that Smith could not impose liability for inadequate

care on the non-medical defendants, the District Court also dismissed the complaint

against the Prison Board and the warden. The District Court denied the motion as to the

   1
    As the parties are familiar with the facts of this case, we will not discuss them in
detail. We will, however, refer to them as they become relevant to our analysis.

                                              2
nurse defendants.

       The six doctor defendants also moved to dismiss the complaint, but, as they relied

on information outside the pleadings, the District Court converted the motion to a motion

for summary judgment and allowed the parties time to submit additional argument and

documentation. Ultimately, the District Court granted the motion for summary judgment.

The District Court rejected Smith’s arguments for tolling and held that the statute of

limitations barred all claims against doctors before September 25, 2003. The District

Court concluded that Smith did not show that three of the doctors were personally

involved in any of the alleged wrongs or that the other three doctors were deliberately

indifferent to his serious medical needs.

       The two nurse defendants filed a joint motion for summary judgment, and Smith

filed a cross motion for summary judgment. The District Court granted the former and

denied the latter. The District Court ruled that Smith had not shown that the prison nurses

had harassed him. The District Court also concluded that Nurse Lynch had not been

deliberately indifferent when she stopped one of his medications or otherwise.

       Smith appeals the judgment entered in favor of all the defendants. As Smith does

on appeal, Smith twice sought the appointment of counsel in the District Court. (The

District Court denied both requests.2 )

   2
    It is not clear whether Smith takes issue with the District Court’s orders denying his
motions for appointment of counsel, although he does move for appointment of counsel
on appeal. In any event, the District Court did not abuse its discretion in denying counsel
to Smith. See Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993). Some of Smith’s

                                             3
       We have jurisdiction pursuant to 28 U.S.C. § 1291. We will summarily affirm the

District Court because no substantial issue is presented on appeal. See L.A.R. 27.4;

I.O.P. 10.6.

       First, the District Court properly limited Smith’s claims to those occurring in the

two years before he filed his complaint. A two-year statute of limitations governs the

claims Smith brought pursuant to 42 U.S.C. § 1983. See Urrutia v. Harrisburg County

Police Dep’t, 91 F.3d 451, 457 n.9 (3d Cir. 1996). A § 1983 claim accrues when the

plaintiff knows, or has reason to know, of the injury on which the claim is based.

See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998). Smith knew, or had

reason to know, of his alleged mistreatment when it occurred. Despite his arguments to

the contrary, he was not entitled to have the statute of limitations tolled based on his

status as an incarcerated person, an allegation that some of the defendants would not

divulge their names, or his inaccurate contention that he was subject to a continuing

wrong. See Lake v. Arnold, 232 F.3d 360, 370 n. 9 (3d Cir. 2000).

       Second, the District Court properly entered judgment in favor of Lycoming County

and Doctors Verzella, Mowatt, and Heilmann because Smith did not implicate them as

personally involved in his treatment or alleged mistreatment. See City of Canton v.



allegations may have appeared to have some merit at the outset, a factor that weighs in
favor of appointing counsel. However, Smith showed himself to be able to articulate his
claims and to respond to the defendants’ motions. Furthermore, Smith’s case relied on
the retelling of events that happened in his presence; he did not need to engage in an
extensive investigation or to obtain an expert witness.

                                              4
Harris, 489 U.S. 378, 385 (1989); Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir.

1988).

         The District Court’s entry of judgment in favor of the warden of the prison and the

Lycoming County prison board (and its officers and members) was also proper. To the

extent that Smith based his claims against these defendants on his dissatisfaction with the

grievance procedure, his claims failed because he does not have a constitutionally

protected right to a grievance procedure. See McGuire v. Forr, No. 94-6884, 1996 U.S.

Dist. LEXIS 3418, *2 (E.D. Pa. Mar. 21, 1996), aff’d 101 F.3d 691 (3d Cir. 1996). To

the extent that Smith, under the care of prison doctors, sought to impose liability on non-

medical prison officers without showing that they had actual knowledge or a reason to

believe that doctors were mistreating him, his claims also failed. See Spruill v. Gillis,

372 F.3d 218, 236 (3d Cir. 2004).

         The District Court properly entered judgment in favor of the remaining defendants

(three doctors and two nurses) and against Smith on the remaining claims of harassment

and Eighth Amendment violations. Mere verbal harassment or abuse, like a comment

about the thickness of Smith’s medical file or a question about the validity of one of

Smith’s medical complaints, is not a civil rights violation. See Oltarzewski v. Ruggiero,

830 F.2d 136, 139 (9th Cir. 1987).

         To show that the prison medical personnel violated the Eighth Amendment’s

prohibition on cruel and unusual punishment, Smith had to show that they acted with



                                              5
deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97,

104 (1976); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Mere negligence or

mere disagreement about the course of proper medical treatment does not constitute an

Eighth Amendment violation. See White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990);

Monmouth County Corr. Inst. Inmates v. Lensario, 834 F.2d 326, 346 (3d Cir. 1987).

       Based on Smith’s allegations in his complaint, prison doctors and nurses regularly

examined him at Lycoming prison. Smith’s medical records revealed that he frequently

and promptly received medical attention when he requested it. For instance, on October

6, 2003, he submitted a sick call request because of dandruff, headaches, and skin lesions.

Although the doctor on call noted Smith’s frequent demands for inappropriate antibiotic

use, Smith was seen on the next clinic day and prescribed dandruff shampoo. Also, on

October 30, 2003, Smith complained of a herpes outbreak. That same day, a prison

doctor issued him a prescription to treat his condition. The nurses and doctors addressed

Smith’s other complaints and, when necessary, referred him to a specialist or sent him to

the hospital for care. Once, a doctor may have stopped one of Smith’s medications

prematurely because of an administrative mix-up when he transferred to Lycoming

prison. However, the doctor was not deliberately indifferent to a serious medical need; on

Smith’s request, the doctor reevaluated Smith’s need for the prescription but decided it

was unnecessary. The nurses who did not administer the prescription were following

doctor’s orders, as they must. Essentially, as the District Court concluded, Smith just



                                             6
disagreed with the course of treatment he received. Smith’s rights under the Eighth

Amendment were not violated.

      For the foregoing reasons, the District Court properly entered judgment in favor of

the defendants and against Smith. Accordingly, we will affirm the District Court’s

judgment. We deny Smith’s motion for appointment of counsel.
