                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2008

Ham v. Greer
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4834




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"Ham v. Greer" (2008). 2008 Decisions. Paper 1441.
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CLD-148                                                        NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4834
                                      ___________

                                     JACKIE HAM,
                                               Appellant

                                            v.

                GARY F. GREER; Dr. CLARK; GREGORY K. BAKER
                    ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 2:06-cv-1692)
                    District Judge: Honorable Terrence F. McVerry
                     ____________________________________

         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
                                    March 6, 2008

              Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                            (Opinion filed : March 14, 2008)
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      Jackie Ham appeals from the order of the United States District Court for the

Western District of Pennsylvania granting Appellees’ motions to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Appellees have filed

motions for summary affirmance of the District Court’s order. Because Ham’s appeal

does not present a substantial question, we will grant the pending motions and summarily

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             I.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review of the District Court’s dismissal for failure to state a claim. Angstadt v.

Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004). Because we are reviewing the

District Court’s dismissal of his claims, we take the allegations of Ham’s Amended

Complaint as true. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007); Estelle

v. Gamble, 429 U.S. 97, 99 (1976).

       Ham is a prisoner at the Federal Corrections Institute McKean (“FCI McKean”).

Greer, a dental officer for FCI McKean, conducted a routine dental exam for Ham on

April 28, 2006. At that time, Greer advised that Ham required an extraction and a filling,

and Greer scheduled a follow-up procedure to take place in May.

       On May 16, 2006, Greer performed the extraction but not the filling. During the

extraction procedure, Greer left two of three roots behind and chipped a different tooth.

The next day, after complaints of pain and bleeding, Clark examined Ham and informed

him that two roots remained behind. That same day, Clark performed a procedure that

removed one of the two remaining roots.



                                             2
       Beginning in June 2006, Ham began to experience symptoms relating to the

chipped tooth. Dental staff informed Ham that Greer would perform treatment, and Ham

requested an alternate dentist. The request was denied, and Ham declined treatment from

Greer on several occasions throughout June and July 2006. After repeated complaints

from Ham, FCI McKean’s alternate dentist, Baker, examined Ham on August 7, 2006.

The next day, Baker performed procedures to remove the third root of the previously

extracted tooth and to extract the chipped tooth.

       Based upon this series of events, Ham, proceeding pro se, brought a civil action

against Greer, Clark and Baker in the United States District Court for the Western District

of Pennsylvania. He asserted violations of his constitutional rights under the Eighth

Amendment, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971), and raised state law negligence claims by invoking the District

Court’s supplemental jurisdiction.

                                             II.

       Defendants Greer, Clark, and Baker each filed Motions to Dismiss the Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On November 2, 2007,

Magistrate Judge Caiazza reviewed the motions and responses and issued a Report and

Recommendation that the District Court dismiss Ham’s Bivens claims for failure to state

a claim upon which relief can be granted. The Magistrate Judge also recommended that

the District Court decline to exercise discretionary jurisdiction over Ham’s state law



                                             3
negligence claims. Judge McVerry conducted a de novo review of the pleadings, together

with the Magistrate’s Report and Recommendation and the parties’ objections and

responses thereto. On December 3, 2007, Judge McVerry entered an Order adopting the

Report and Recommendation as the opinion of the District Court, dismissing Ham’s

claims, and closing the case. Ham timely appealed from the District Court’s final

judgment.

                                              III.

       The Eighth Amendment’s prohibition on “cruel and unusual punishments”

proscribes deliberate indifference to prisoners’ serious medical needs. Estelle v. Gamble,

429 U.S. 97, 104 (1976). Therefore, to state a claim against a prison official under the

Eighth Amendment, the prisoner must allege both (1) the existence of serious medical

needs; and (2) the official’s deliberate indifference to those needs. See Rouse v. Plantier,

182 F.3d 192, 197 (3d Cir. 1999). Because the District Court determined, and we agree,

that Ham alleged a sufficiently serious medical need, our primary focus is on the deliberate

indifference aspect of Ham’s Eighth Amendment claim.

       A prison official demonstrates deliberate indifference if he knows of and disregards

an excessive risk to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825,

834 (1994). This requires showing a sufficiently culpable state of mind, such as reckless

disregard to a substantial risk of serious harm. Id. at 836. In contrast, allegations of

simple negligence or medical malpractice – without an associated culpable state of mind –



                                               4
do not constitute deliberate indifference, and therefore do not rise to the level of an Eighth

Amendment violation. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

       Applying this standard, the District Court properly dismissed Ham’s Eighth

Amendment claims. The District Court held, and we agree, that although Ham may have

properly raised claims of negligence against one or more of the defendants, Ham failed to

allege facts that, if proved, would be sufficient to permit the Court to infer that any of the

three Defendants exhibited deliberate indifference to Ham’s serious medical needs.

       To the contrary, the Amended Complaint establishes that Ham consistently received

prompt medical attention, except in those instances where Ham himself declined

treatment. Ham’s primary dispute, in essence, is that he did not receive the kind or quality

of treatment that he would have preferred. This simply does not rise to the level of a

violation of a constitutionally protected right. See, e.g., Inmates of Allegheny Jail v.

Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (“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.’” (quoting Bowring v. Godwin, 551 F.2d 44, 48

(4th Cir. 1977)).

                                              IV.

       Because the District Court appropriately dismissed Ham’s Bivens claims, no

independent basis for federal jurisdiction remains. In addition, the District Court did not

abuse its discretion in declining to address the state law negligence claims. 28 U.S.C.



                                               5
§ 1367(c)(3); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Tully

v. Mott Supermkts., Inc., 540 F.2d 187, 196 (3d Cir. 1976).

       Accordingly, we agree with the District Court that Ham’s claims should be

dismissed. We therefore grant the motions for summary affirmance and summarily affirm

the judgment of the District Court.




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