Shakur Gannaway v. Prime Care Medical Inc, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, SHWARTZ and NYGAARD, Circuit Judges. Total Pages: 7. ALD-280. Gannaway's motions for appointment of counsel are denied, as is his motion for summary action.

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ALD-280

Date Filed: 06/13/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1019
___________
SHAKUR C. GANNAWAY,
Appellant
v.

PRIME CARE MEDICAL INC; CAMP HILL SCI; GREENE SCI; ROCKVIEW SCI;
ADAPT INC, etc al, William Tillman; OSMER DEMING; NICHOLAS
STROUMBAKIS; PAULA DILLMAN; MD MARK SILIDKER; APRIL PALUMBO
RASCH; DORIS WEAVER; TONYA HIET; LIZHONG; PAUL LEGGORE; JEFF
WITHERITE; ED SHOOP; TERESA LAW; GAIL KELLY; JOHN PALAKOVISH;
JEFFREY DITTY; RICHARD SOUTHERS; NOTAFI FRANCESCO; EMIL MICHAEL
KAZOR; KENNETH KLAUS; ROBERT GIMBLE; JOHN HORNER; PHS
CORRECTIONAL HEALTHCARE, most of state prison; DAN DAVIS; SGT.
FERRIER; KERRI MOORE; UNIT MANAGER GUYTON; TRACY SHAWLEY;
JOHN MCANANY; MICHAEL BELL; JANE DOE; MD VICTORIA GRESSNER,
Primecare Medical Supervisor; TED W. WILLIAMS; RN ERIKA FOOSE; RN ELAINE
COFFMAN; DR. SYMONS; DR. FISHER; BERNARD; FRANCIS M. DOUGHERTY;
SGT. VARGAS; BARRY JOHNSON; KUHN HEX; DR. GOUBRAN THEODORE
VOURSTAND, MD; C/O MCHENRY; DETWILER, now SGT; DEPUTY HORTON;
JAMES MORRIS; DEPUTY WARDEN MARSH; MARIROSA LAMAS; DEPUTY;
C/O MOORE; C/O BUTLER; SGT. LOQUAT; SGT. LUZIER; C/O WEAVER;
CAPTAIN EATON; DIANA BEATTY; JEFFREY A. RACKOVAN; BILL TILLMAN;
JOHN DOE; JANE DOE; LT. FOX; ALAN RIGGALL; TEJADA FERNANDO; LT.
SUTTON; KITCHEN WORKER LUSS; E. MOSSER; MD PETER BINNION; BERKS
COUNTY PUBLIC DEFENDERS OFFICE; WILLIAM BISPELS
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D.Pa. No. 2-12-cv-01156)
District Judge: Honorable Eduardo C. Robreno
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or

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Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 9, 2016
Before: AMBRO, SHWARTZ and NYGAARD, Circuit Judges
(Filed: June 13, 2016)
_________
OPINION*
_________
PER CURIAM
Appellant, Shakur Gannaway, a state prisoner proceeding pro se, appeals from an
order of the United States District Court for the Eastern District of Pennsylvania
dismissing his civil rights action brought pursuant to 42 U.S.C. § 1983. We will
summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P.
10.6.
In 2012, Gannaway filed a complaint, which he later amended, primarily alleging
that the defendants failed to provide him with adequate medical care, denied due process
in connection with disciplinary proceedings, retaliated against him for filing grievances,
and restricted his access to the courts. The defendants filed motions for summary
judgment, which the District Court granted.1 Gannaway appealed.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1

Earlier, the District Court properly granted in part a motion to dismiss, holding that the
“non-medical Commonwealth Defendants are entitled to sovereign immunity” and
dismissing “all claims for monetary damages against [those defendants] in their official
capacity[.]” See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010);
42 Pa. Cons. Stat. Ann. § 8521(b).
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We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
the District Court’s order is plenary. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir.
2004). Summary judgment is proper where, viewing the evidence in the light most
favorable to the nonmoving party and drawing all inferences in favor of that party, there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418,
423 (3d Cir. 2006). We may summarily affirm a decision of the District Court where “it
clearly appears that no substantial question is presented or that subsequent precedent or a
change in circumstances warrants such action.” 3d Cir. I.O.P. 10.6.
We conclude, for substantially the reasons provided in the District Court’s
thorough opinion, that summary judgment was properly granted to the defendants with
respect to the allegations of inadequate medical care. Gannaway’s medical claims
against the Commonwealth agencies and employees centered on their alleged failure to
remove an “internal stitch” that was purportedly left in his abdomen during a surgery in
2002. It is undisputed, however, that Gannaway received comprehensive medical
treatment in response to his complaints.2 Gannaway’s mere disagreements over the type

2

For instance, shortly after Gannaway complained about the stitch, a doctor examined
him, noting that the stabbing injury which necessitated the surgery may have resulted in
internal scarring that could cause pain. The doctor prescribed medications for pain and
constipation, but concluded that no further surgery was warranted. Approximately four
months later, Gannaway was again examined by the doctor, who maintained that surgery
was not warranted. The doctor also referred Gannaway for an abdominal ultrasound and
upper gastrointestinal and small bowel x-ray series. Those tests showed no
abnormalities.
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or amount of this treatment do not state an Eighth Amendment claim. See White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
In addition, the District Court properly held that non-medical prison officials may
not be held liable for the denial of medical care to a prisoner who is under a physician’s
care. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Further, with respect to the
claims against PrimeCare Medical, Inc., a private vendor that provided medical services
to inmates, we agree that Gannaway failed to identify an established policy or custom
that resulted in the alleged constitutional violations at issue. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978). He also did not allege that two PrimeCare Medical
employees named in his complaint, Paula Dillman and Victoria Gessner, were personally
involved in the deprivation of his federally protected rights. See Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988). Moreover, the District Court properly concluded
that Gannaway could not raise a state law medical malpractice claim against PrimeCare
Medical, Dillman, and Gessner, because he did not file a timely certificate of merit. See
Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011); Pa. R. Civ.
P. 1042.3 (requiring a certificate of merit in all professional malpractice cases).
Gannaway also raised medical care claims against ADAPPT, a facility contracted by the
Department of Corrections to provide drug treatment services, and its director. But
because Gannaway was released from the ADAPPT facility in 2007, and his allegations
indicate that he knew of the alleged constitutional violations at that time, his claims are
time-barred. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000) (stating that a twoyear statute of limitations applies to civil rights actions originating in Pennsylvania).
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The District Court also properly granted summary judgment to the defendants on
Gannaway’s due process, retaliation, and access to the courts claims. Gannaway alleged
that his personal property was improperly confiscated and destroyed, and that four
falsified misconduct charges resulted in his placement in the restricted housing unit
(RHU) for periods between 30 and 90 days. Notably, though, Gannaway had access to
the prison grievance process, an adequate post-deprivation remedy to protect his due
process rights. See Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 422 (3d Cir.
2000) (holding that prison’s grievance program and internal review provide an adequate
post-deprivation remedy to satisfy due process). In addition, Gannaway did not present
evidence that his confinement in the RHU, and the conditions he faced there, constituted
an atypical and significant hardship. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir.
2002) (holding that seven months in disciplinary confinement did not violate a protected
liberty interest). Further, Gannaway’s grievances were not substantial or motivating
factors in prison officials’ decisions to issue misconduct charges or transfer him to other
prisons. Indeed, the summary judgment record suggests no temporal connection between
Gannaway’s grievances and the allegedly retaliatory decisions. See Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (stating that requisite causal
connection for a retaliation claim can be demonstrated by, inter alia, “an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory
action”). Gannaway also alleged that prison officials restricted his access to the prison
law library, denied his requests for paralegal assistance, and failed to provide free postage
and photocopies. Notably, though, these alleged deprivations did not thwart Gannaway’s
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ability to litigate a claim. See Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008).
Although Gannaway asserted that his excessive force case against the Reading Police
Department was dismissed for failure to prosecute, the record established, to the contrary,
that the District Court granted summary judgment in favor of the defendants over
Gannaway’s objections.
We also conclude that the District Court properly granted summary judgment to
the defendants on Gannaway’s claims against the Berks County Public Defender’s Office
and the appointed lawyers who represented him in criminal proceedings. See Polk
County v. Dodson, 454 U.S. 312, 317 n.4 (1981) (holding that a public defender is not a
state actor for § 1983 purposes “when performing the traditional functions of counsel to a
criminal defendant”). To the extent that Gannaway sought to challenge his conviction,
his claims must be raised in a habeas petition. See Wilkinson v. Dotson, 544 U.S. 74, 82
(2005) (stating that claims that, if successful, would “spell speedier release . . . lie[] at the
core of habeas corpus.” (internal quotation and citation omitted)). Furthermore,
Gannaway’s request for damages based on alleged constitutional violations related to his
conviction is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
In documents filed in support of his appeal, Gannaway alleges that the defendants
interfered with his ability to litigate the case in the District Court by tampering with his
legal mail, restricting his access to the law library, and failing to provide documents in
discovery. But because Gannaway did not raise these issues in the District Court, we will
not consider them. See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994)
(holding that issues raised for the first time on appeal will not be considered). Finally,
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Gannaway’s motions for appointment of counsel are denied, see Tabron v. Grace, 6 F.3d
147, 155 (3d Cir. 1993), as is his motion for summary action.

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