Richard Joh v. Paul Suhey , 709 F. App'x 729 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-4010
___________
RICHARD JOH,
Appellant
v.
DR. PAUL SUHEY, D.O.; DR. WILLIAM YOUNG; NURSE FREEMAN;
NURSE SUPERVISOR MARLENE MAJOR;
PHYSICIAN ASSISTANT BERNARD; ASHLEY BACHMAN, LPN;
TAMMY LINGLE; CLINTON COUNTY CORRECTIONAL FACILITY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 15-cv-02286)
District Judge: Honorable William W. Caldwell
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 22, 2017
Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges
(Opinion filed: September 26, 2017)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Richard Joh appeals the District Court’s order dismissing his amended complaint
for failure to state a claim. For the reasons below, we will affirm the District Court’s
order.
In the District Court, Joh alleged that, on December 4, 2013, he injured a finger
playing volleyball while incarcerated at the Clinton County Correctional Facility
(CCCF). Nurse Freeman initially refused to see him but an hour later gave him two
ibuprofen tablets. The next day, Nurse Supervisor Marlene Majors saw him, called two
doctors, and scheduled an X-ray. After reading the X-ray, she informed Joh that he had
fractured his finger. On December 10, Physician Assistant Bernard ordered that Joh’s
finger be “buddy-taped,” i.e., taped to the finger next to it. Nurse Majors then ordered
another X-ray. On December 13, Dr. Suhey examined the new X-ray, determined that
the fracture needed only taping, and ordered that the taping continue for one month.
A month later, on January 8, 2014, the taping was removed and Joh’s finger was
“‘disfigured,’ ‘limp,’ and ‘unusable.’” A week later, Joh was examined by Dr. Young,
who “did nothing.” On March 10, one day after filing a grievance challenging his
medical treatment, Joh was transferred to another facility. After he was released from
prison, Joh went to a doctor who informed him that the finger was dislocated and that he
needed surgery. Joh had the corrective surgery in August 2015.
Joh argued that the Appellees’ actions constituted deliberate indifference to his
serious medical needs. He also contended that the CCCF failed to properly train and
supervise its medical personnel. In order to state a claim under the Eighth Amendment
for denial of medical care, Joh needed to allege that the Appellees were deliberately
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indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
A medical need is serious if it is “one that 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 Cty Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326,
347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd,
649 F.2d 860 (3d Cir. 1981)). Joh’s allegations of a fractured finger state a claim of a
serious medical need. Thus, the issue is whether the Appellees acted with deliberate
indifference to that need. 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.
Nurse Freeman
As to Nurse Freeman, Joh alleged that she initially refused to see him but gave
him pain medicine an hour later.1 This alleged brief delay in seeing him after his initial
injury does not state a claim for deliberate indifference. Cf. Jenkins v. Cty. of Hennepin,
Minn., 557 F.3d 628, 632 (8th Cir. 2009) (nurse’s one-day postponement of X-ray for
1
In his original complaint, Joh alleged only that Nurse Freeman interviewed him and
characterized the injury as “aching.” Compl. at ¶15. In his amended complaint, Joh
alleged that after his injury, he ran to the medical department and Nurse Freeman
slammed the door in his face and refused to treat him. Joh’s amended allegations conflict
with a letter to the Pennsylvania Prison Project Joh submitted to the District Court. See
Letter at docket #11. In the letter, Joh asserted that after injuring his finger, he ran to exit
the gym to try to visit the infirmary but that a correctional officer refused to unlock the
door. Other inmates then banged on the door to the gym to alert the nurse who slammed
the infirmary door shut. In this latter scenario, it is not clear that Nurse Freeman was
aware of the details of Joh’s injury when she closed the infirmary door. This factual
conflict does not influence our determination that the District Court did not err in
dismissing this claim. Even reading Joh’s allegations in the light most favorable to him,
he has failed to state a claim.
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broken jaw did not reflect deliberate indifference); Johnson v. Hamilton, 452 F.3d 967,
973 (8th Cir. 2006) (no evidence that one-month delay in receiving X-ray after tentative
diagnosis of fractured finger was anything more than negligence); Spruill v. Gillis, 372
F.3d 218, 223-25, 237 (3d Cir. 2004) (delay of two to three days before examination of
severe back and leg pain did not state a claim of deliberate indifference against prison
guard); Brooks v. Kyler, 204 F.3d 102, 105 n.4 (3d Cir. 2000) (no evidence that officers
thought prisoner needed immediate treatment or that temporary denial of care exposed
prisoner “‘to undue suffering or threat of tangible residual injury’” (quoting Monmouth
Cty., 834 F.2d at 346)). In order to be found liable under the Eighth Amendment, a
prison official must “know[] of and disregard[] an excessive risk to inmate health or
safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and [she] must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). By not treating Joh’s broken finger within
an hour, Nurse Freeman did not disregard an excessive risk to his safety. Joh does not
allege that the brief delay in treatment led to any serious harm.
In his brief, Joh argues that because Nurse Freeman charged him for the pain
medicine and that charge was later refunded, the charge should not have been permitted
initially. This, he contends, supports an inference that Nurse Freeman was being punitive
or denied him treatment based on its cost. We disagree. That the fee was refunded does
not warrant an inference that it was wrongfully and punitively applied by Nurse Freeman
or that the brief delay in care was based on concerns over cost.
Appellees Majors, Bernard, and Suhey
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Joh claims that several other Appellees are also liable for their treatment of his
finger. With respect to medical decisions, “prison authorities are accorded considerable
latitude in the diagnosis and treatment of prisoners.” Durmer v. O’Carroll, 991 F.2d 64,
67 (3d Cir. 1993). A federal court 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 Cty. Jail v. Pierce, 612 F.2d 754,
762 (3d Cir. 1979) (alteration in original) (quoting Bowring v. Goodwin, 551 F.2d 44, 48
(4th Cir. 1977)).
With respect to Head Nurse Majors, Joh asserted that she ordered two X-rays for
Joh and determined that he had a fractured finger. The only allegation against PA
Bernard is that he taped Joh’s finger on December 10. As for Dr. Suhey, Joh alleged that
he read the X-ray and determined that the finger was fractured but would only require
taping. Joh asserted that these three Appellees were deliberately indifferent for failing to
recognize the seriousness of his injury and provide treatment to avoid permanent damage.
However, Joh has not alleged any facts showing that Appellees’ alleged failure to treat
his finger fracture properly was deliberately indifferent as opposed to merely negligent or
based on a difference of medical opinion. See Estelle, 429 U.S. at 106 (allegation of
negligence does not state Eighth Amendment claim); see also Spruill, 372 F.3d at 235(allegations of medical malpractice not sufficient for Eighth Amendment claim). Joh
argues in his brief that he has pleaded more than a mere disagreement of opinion because
the treatment he received was ineffective. However, that a treatment turned out to be
ineffective does not mean it was outside the range of appropriate treatments at the time.
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Dr. Young
In his original complaint, Joh’s only allegation regarding Dr. Young is that he was
examined by him. In dismissing the original complaint, the District Court noted that Joh
had not alleged what treatment he requested from, or was denied by, Dr. Young. In his
amended complaint, Joh alleged that Dr. Young examined him on January 15, 2014, and
“did nothing.” But Joh did not explain further. For example, Joh did not allege that Dr.
Young indicated no further treatment was necessary or appropriate. Joh did not allege
that he told Dr. Young that he was in pain or that he asked what could be done for his
finger. He does not describe what Dr. Young said to him regarding why nothing further
would be done for his finger.
In order to state a claim, a plaintiff must make sufficient factual allegations to
allow a court to “draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is not enough for a
plaintiff to offer only conclusory allegations or a simple recital of the elements of a claim.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Despite being given an
opportunity to amend his complaint, Joh did not allege sufficient facts to state a claim
that Dr. Young’s inaction was a result of deliberate indifference and not mere negligence
or a difference of medical opinion. See Estelle, 429 U.S. at 106. He did not allege any
facts to support an inference that Dr. Young knew of and disregarded an excessive risk to
Joh’s safety. Farmer, 511 U.S. at 836-37.
Bachman, Lingle, and CCCF
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In his brief, Joh does not argue in support of his claims against Bachman, Lingle
or CCCF. Moreover, because Joh has failed to state an underlying constitutional claim
against the individual Appellees, he cannot state a claim against CCCF for failure to train
its medical personnel. See Kneipp v. Tedder, 95 F.3d 1199, 1212 n.26 (3d Cir. 1996) (if
no underlying constitutional violation, failure to train claim will not stand). And
although he listed Ashley Bachman and Tammy Lingle in the caption, he made no
allegations against them within the amended complaint.
Conclusion
The District Court did not err in concluding that Joh failed to state a claim against
the Appellees. For the above reasons, we will affirm the District Court’s judgment.
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