                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2005

Coleman v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4250




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Recommended Citation
"Coleman v. Beard" (2005). 2005 Decisions. Paper 1193.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1193


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DPS-192                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 04-4250
                                ________________

                              SHERMAN COLEMAN,
                                         Appellant


                                          v.

              JEFFREY BEARD, Secretary of Pennsylvania Department of
             Corrections; NEAL MECHLING, Deputy, Superintendent at the
                 State Correctional Institution at Fayette; MICHAEL J.
               HERBIK, Medical Director and Medical Doctor at the State
        Correctional Institution at Fayette; PRISON HEALTH CARE SERVICES
      INC.; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, and as private
                                contract health care provider
                     ____________________________________

                  On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                            (D.C. Civ. No. 04-cv-1220)
                     District Judge: Honorable Kim R. Gibson
                  _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    April 7, 2005

             Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                               (Filed: May 13, 2005 )


                            _______________________

                                    OPINION
                            _______________________
PER CURIAM

       Sherman Coleman appeals the District Court’s order dismissing his complaint as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). We conclude that his appeal lacks an

arguable legal basis.

       Coleman is incarcerated at the State Correctional Institution at Fayette (“SCI”). In

August 2004, he filed a document entitled “Declaration in Support of Plaintiff’s Motion

for a Temporary Restraining Order and Preliminary Injunction.” Coleman’s motion

alleged that Dr. Michael J. Herbik, the Medical Director at SCI, had not permitted him to

test his own blood glucose level. Herbik filed a motion to dismiss Coleman’s motion.

The Magistrate Judge recommended that Coleman’s motion be construed as a complaint

and that Herbik’s motion to dismiss be granted. Coleman filed a response and an

“amended” complaint. The complaint named Jeffrey A. Beard, Secretary of the

Pennsylvania Department of Corrections; Neal K. Mechling, Superintendent at SCI; Dr.

Herbik; Prison Health Care Services, Inc. and the Pennsylvania Department of

Corrections. Coleman alleges that the defendants violated his Eighth Amendment,

Fourteenth Amendment and state constitutional rights and discriminated against him

under the Americans with Disabilities Act. The District Court dismissed the complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Coleman filed this

timely appeal.

       Deliberate indifference to serious medical needs is a violation of the Eighth



                                             2
Amendment and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 103

(1976). To act with deliberate indifference is to recklessly disregard a substantial risk of

serious harm. Farmer v. Brennan, 511 U.S. 825, 836 (1994). We agree that Coleman

failed to plead a claim of deliberate indifference. Coleman does not allege that he is not

receiving treatment for his diabetes; instead, he asserts that Herbik’s medical treatment

was not proper and that he should be permitted to check his own blood glucose level more

often than on the first Monday of each month as provided for by Dr. Herbik’s treatment

regimen. Coleman’s disagreement with the medical care provided by Herbik does not

state an Eighth Amendment claim. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999).

         The District Court correctly dismissed the complaint as to the remaining

defendants because Coleman does not allege any personal involvement of these

defendants; it is well-established that there is no respondeat superior liability in § 1983

actions. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Additionally,

Coleman fails to allege any facts that would support a claim of discrimination pursuant to

the ADA. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).

         We have reviewed “Plaintiff’s Motion for Stay of Proceeding or Motion for

Remand of Proceeding or Motion to Have Proceeding Dismissed Without Prejudice.” In

this document, Coleman attempts to amend his complaint by providing new information

that he believes will demonstrate deliberate indifference to his serious medical needs.



                                              3
Such claims would more properly be asserted in the District Court, either in a motion for

relief pursuant to Rule 60(b), Fed. R. Civ. P., or in a new complaint. Accordingly, we

deny this motion.

       We will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) as lacking any

arguable basis in law.




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