Dusenbery v. United States , 208 F. App'x 180 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-19-2006
Dusenbery v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2021
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-2021
________________
LARRY DEAN DUSENBERY,
Appellant,
v.
UNITED STATES OF AMERICA; FEDERAL
BUREAU OF PRISONS; FEDERAL BUREAU
OF INVESTIGATION; Administrator
RONALD LAINO, Individually and in his
official capacity as Health Service Administrator;
M.D. DEVEN CHANMUGAM, Individually and
in his official capacity as Clinical Director; R.
SKERDA, Individually and in her official capacity
as Pharmacist; TROY WILLIAMSON, Individually
and in his official capacity as Warden
________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-02361)
District Judge: Honorable Christopher C. Conner
________________
Submitted Under Third Circuit LAR 34.1(a)
October 5, 2006
Before: Rendell, Ambro and Roth, Circuit Judges
(Filed December 19, 2006)
________________
OPINION
_________________
PER CURIAM
Appellant Larry Dean Dusenbery, a federal prisoner confined at Allenwood United
States Penitentiary in White Deer, Pennsylvania, filed a civil action against the United
States and Ronald A. Laino, M.D., alleging that prison medical staff failed to diagnose
and treat his “scabies,” a contagious skin condition caused by mites burrowing under the
skin. He alleged an Eighth Amendment violation against Dr. Laino pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
professional malpractice against the United States under the Federal Tort Claims Act, 28
U.S.C. § 2671 et seq.
Early in the litigation, Dusenbery moved for appointment of counsel, seeking an
attorney who could retain the services of a physician who would then prescribe a Kwell
lotion, which he believed would reveal the presence of scabies.1 The motion was denied
because prison medical records contradicted Dusenbery’s allegations that his skin
problems were caused by scabies. The defendants moved for summary judgment, and the
Magistrate Judge recommended granting the motion. In an order entered on January 27,
2006, the District Court adopted the Magistrate Report and Recommendation and granted
summary judgment to the defendants. Dusenbery appeals.
1
“Kwell” is a parasiticide used in the treatment of scabies and lice.
2
We will affirm. Our review of the District Court's grant of summary judgment is
plenary, and we must affirm if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). Federal Rule of Civil Procedure 56(e), concerning the requirements
for opposing a motion for summary judgment, provides that Dusenbery, as an adverse
party, “may not rest upon the mere allegations or denials of [his] pleading, but [his]
response, by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.” We conclude that summary judgment was
proper for the reasons given by the District Court, because there was an insufficient
evidentiary basis on which a reasonable jury could find in Dusenbery’s favor on either of
his claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
We first address Dusenbery’s claim against Dr. Laino, the Health Services
Administrator at USP-Allenwood. Deliberate indifference to serious medical needs is a
violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (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). Mere disagreements over the type or
amount of care provided do not state an Eighth Amendment claim. White v. Napoleon,
897 F.2d 103, 110 (3d Cir. 1990).
Dusenbery has had frequent evaluations of his complaints of itching at USP-
Allenwood, and he has received treatment. Dr. Laino asserted in his declaration that he
underwent a skin biopsy of his right anterior abdomen due to a skin lesion and itching on
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September 13, 2002. The excised skin was examined under a microscope. The pathology
report indicated seborrheic keratosis. Dusenbery underwent a second skin biopsy in
November 2002, this time of his left dorsal forearm due to a crusting lesion. The
pathology report does not mention gross or microscopic findings of scabies. On
December 12, 2003, Dusenbery was diagnosed with dermatitis and given Prednisone. On
December 30, 2003, he complained of itching and was given Hydroxyzine. On March 4,
2004, he was diagnosed with neurodermatitis, a chronic form of dermatitis. Dusenbery
does not dispute that he received any of this medical care.
Despite all this testing, scabies have never been detected on Dusenbery during the
relevant time period. Dr. Laino could only be liable for a violation of Dusenbery’s
constitutional rights if he believed that Dusenbery had scabies and deliberately did not
treat the disorder. Farmer, 511 U.S. at 836. The medical records, and Dusenbery’s lack
of evidence, establish that such a showing cannot be made. In his reply brief, Dusenbery
asserts that the excised lesions were tested only for cancer and not for scabies, but he
provides no support for this assertion and it is belied by the pathology reports themselves.
Dusenbery further argues that he was diagnosed with scabies at a different federal
institution in 1991, thirteen years before this action was filed. A year later, at the same
institution, he came into contact with another prisoner who was infected with scabies and
again he was treated, but incompletely. These remote events do not establish deliberate
indifference at USP-Allenwood ten years later, because they do not establish clinical
4
evidence of scabies during the relevant time period.
As to his claim of medical negligence against the United States, the District Court
properly found that Dusenbery would need expert testimony to establish a genuine triable
issue. Celotex Corp., 477 U.S. at 322-23. At a trial, Dusenbery must have an expert who
is willing to opine that, to a reasonable degree of medical certainty, he has scabies and
that the acts of the prison medical staff deviated from acceptable medical standards. See,
e.g., Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990). Diagnosis and treatment of
scabies, a contagious skin disease, is not a matter of common knowledge, and requires
expert testimony. Reynolds v. Warthan, 896 S.W.2d 823, 826 (Tex. Ct. App. 1995).
Dusenbery’s argument that he would present the testimony of Mark E. Baldwin, a
physician’s assistant who treated him in 1991, does not undermine the District Court’s
conclusion that summary judgment for the United States was warranted. Even if Baldwin
is qualified to serve as an expert in this case, there is no evidence that he agreed to be
Dusenbery’s expert. Moreover, Rule 56(e) requires that Dusenbery obtain and present an
affidavit from Baldwin in which he states an opinion, that Dusenbery had scabies during
the relevant time period. Baldwin’s 1991 progress note, App. 43, upon which Dusenbery
relies, is inadequate to show clinical evidence that he suffered from scabies during his
time at USP-Allenwood, and inadequate to show that prison medical staff there deviated
from acceptable medical standards.
Finally, the District Court properly denied Dusenbery’s motion for appointment of
counsel, because the standard for granting counsel was not met. See Tabron v. Grace, 6
5
F.3d 147, 155-57 (3d Cir. 1993). Although his medical negligence case turned on expert
testimony, which would weigh in favor of granting counsel, see Montgomery v. Pinchak,
294 F.3d 492, 498-99 (3d Cir. 2002), prison medical records directly contradicted his
theory that he has scabies, and, as we held in Tabron, the plaintiff must establish that his
claim has arguable merit for the District Court seriously to consider appointing counsel.
Tabron, 6 F.3d at 156.
We will affirm the orders of the District Court granting summary judgment to the
defendants and denying appointment of counsel.
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