Antonio Pearson v. Prison Health Service

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 16-1140

______

ANTONIO PEARSON,

Appellant

v.

PRISON HEALTH SERVICE; SOMERSET COUNTY

HOSPITAL; MEDICAL DIRECTOR R. MCGRATH; CHCA

M. VISINAKY; CHCA OVERTON; SYLVIA GIBSON;

GERALD L. ROZUM; CAPT. PAPUGA; LT. DOYKA;

SGT. RITTENOUR; ROBERT SOLARCZYK; JOHN DOE-

1; TAMMY MOWRY; SUSAN BARNHART; DR. PAUL

NOEL; KAREN OHLER; DR. SAMUEL WATTERMAN;

MELINDA SULLIVAN; D. TELEGA; DON KLOSS; CRAG

HOFFMAN; KUMUDA PRADHAN; D. RHODES;

THOMAS MAGYAR; DENISE THOMAS; D. BEDFORD;

COI FOUST; LINDA KLINE; RAYMOND J. SOBINA;

COI HEATH

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. No. 3-09-cv-00097)

District Judge: Honorable Kim R. Gibson

______

Argued December 7, 2016

Before: FISHER ∗, KRAUSE and GREENBERG, Circuit

Judges.

(Filed: March 7, 2017)

Robert J. Ridge

Brandon J. Verdream [ARGUED]

Clark Hill

301 Grant Street

One Oxford Centre, 14th Floor

Pittsburgh, PA 15219

Counsel for Appellant

Kemal A. Mericli [ARGUED]

Office of Attorney General of Pennsylvania

564 Forbes Avenue

6th Floor, Manor Complex

Pittsburgh, PA 15219

Counsel for Department of Corrections Appellees

Kathryn M. Kenyon [ARGUED]

Meyer Unkovic & Scott

535 Smithfield Street

1300 Oliver Building

Pittsburgh, PA 15222

Counsel for Appellee Medical Director McGrath

______

∗

Honorable D. Michael Fisher, United States Circuit

Judge for the Third Circuit, assumed senior status on

February 1, 2017.

2

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Antonio Pearson is a prisoner who suffered from two

serious medical needs during his incarceration at

Pennsylvania State Correctional Institution–Somerset (“SCI-

Somerset”). In 2009, he filed suit under 42 U.S.C. § 1983,

claiming that various prison officials and an independent

medical contractor were deliberately indifferent to those

needs in violation of the Eighth Amendment. In this appeal,

Pearson challenges the District Court’s order granting

summary judgment in favor of the five defendants remaining

in this case. For the reasons set forth below, we will reverse

the District Court’s order, in part, insofar as it grants

summary judgment in favor of Nurse David Rhodes. We will,

however, affirm the District Court’s order in all other

respects.

I

A

In April 2007, medical officials at SCI-Somerset sent

Pearson to the hospital twice within the same week to

undergo surgery. The first was a surgery to remove his

appendix. The second was a surgery to repair a urethral tear

caused by the insertion of a catheter during the first surgery.

The defendants are five individuals who were either aware of

or responded to Pearson’s requests for medical treatment

before those surgeries. Dr. McGrath is a medical contractor

who examined Pearson when he complained of bleeding after

his first surgery. The other four defendants are Department of

3

Corrections employees, including three nurses who examined

Pearson, and a guard who was informed of Pearson’s

bleeding on the morning of his second surgery.

Events Leading to Surgery for Appendicitis

On April 10, 2007, Pearson began experiencing sharp

pains in his abdomen and requested an appointment with the

medical unit. At 1:00 p.m., Nurse Denise Thomas examined

Pearson and noted that his pain intensified with certain

movements and never fully relieved. Diagnosing him with a

pulled muscle, she placed him on sick call for the following

day without ordering additional treatment.

Pearson’s excruciating pain continued and he returned

to medical at 5:00 p.m. This time, Nurse Linda Kline

examined him, offered Tylenol or Maalox, and instructed him

to rest until his sick-call appointment in the morning.

According to Pearson, she told him that his gallbladder was

failing.

At approximately 11:00 p.m. that night, Pearson told

the block officer that he was in severe pain and asked him to

call the medical unit. After speaking with the medical unit,

the officer returned to Pearson’s cell and told him that Nurse

David Rhodes would not come to see him because two nurses

had already examined him, and he was on sick-call for the

following day. Left in excruciating pain, Pearson screamed

for several hours until the officer called medical again. This

time, Nurse Rhodes came to his cell with a wheelchair—but

Nurse Rhodes was upset, Pearson alleges, and told him that

he would not be taken to medical unless he placed himself in

the wheelchair. Unable to walk and in pain, Pearson claims

that he was forced to crawl across the floor to the wheelchair.

Nurse Rhodes took Pearson to the infirmary and

examined him. He checked his vitals and recognized that

Pearson had possible signs of appendicitis. Because

4

abdominal pain has many causes and Pearson was scheduled

for a doctor’s examination in the morning, Nurse Rhodes

thought a period of watchful waiting would be prudent and

placed Pearson inside an infirmary cell for observation. At

this time, Nurse Rhodes put an order on Pearson’s chart for

“nothing by mouth” as a precaution in case he needed surgery

but did not elevate Pearson’s condition to another medical

official. J.A. 124, 288-91. Continuing to suffer in pain,

Pearson screamed throughout the night.

At approximately 10:00 a.m. on April 11, Pearson was

seen by Dr. Ghatge, who ordered him sent to Somerset

Hospital for evaluation. Later that day, Pearson was

diagnosed with appendicitis and a surgeon removed Pearson’s

inflamed appendix, as well as a gangrenous part of his

omentum.

Events Prior to Surgery for Urethral Tear

On April 14, 2007, Pearson returned to the prison with

an order from his attending surgeon that he be scheduled for a

follow-up examination in one week. He was examined by a

prison nurse and prescribed Motrin, physical therapy, and a

follow-up with a physician’s assistant before being sent back

to his cell. J.A. 115, 132, 377.

On April 15, Pearson began experiencing sharp pains

and felt liquid running down his leg, which he later identified

as blood flowing from his penis. He requested to be seen by

medical. According to Pearson, the correctional officer called

medical, but Nurse Kline instructed the officer that bleeding

was normal after surgery and that Pearson should just lie

down on his bunk. She did not examine him.

At this point, Pearson claims that he continued to bleed

in constant pain until the block officer witnessed it and sent

him directly to the medical unit. At medical, Pearson

maintains, Nurse Magyar had him undress in case he needed

5

to go to the hospital and called Dr. McGrath, who was angry

at being called at home. During that call, Dr. McGrath

ordered antibiotics as well as an increased intake of fluids.

J.A. 115-16, 377. He also instructed the nurse to place

Pearson in the infirmary for over-night observation.

Dr. McGrath examined Pearson at 6:45 a.m. the

following morning, diagnosed the bleeding as a normal

consequence of the recent surgery, and sent him back to his

cell. During the examination, Dr. McGrath collected lab

work, ordered antibiotics, and scheduled a follow-up

appointment. J.A. 116-17, 377-78. Later that night, Pearson

began bleeding again and collected a quarter of a cup of blood

in a glove to show the extent of it. He then complained about

the bleeding to Sergeant Rittenour. According to Pearson,

Rittenour relayed his complaint to Captain Thomas Papuga,

who ordered Rittenour to discard the blood Pearson collected

in the glove. But Papuga knew that Pearson was receiving

medical care—one of the cell block officers contacted

medical and relayed to Captain Papuga that Pearson was

unsatisfied with their response. J.A. 324, 385.

At 7:00 a.m. on April 17, Pearson began bleeding

again. He returned to medical where Dr. McGrath observed

the bleeding and transferred him to the emergency department

at Somerset Hospital. At the hospital, it was determined that

Pearson was suffering from a urethral tear caused during his

prior surgery. Pearson underwent a second surgery to

cauterize the tear and was returned to SCI-Somerset the same

day.

B

In 2009, Pearson filed suit, pro se, under 42 U.S.C. §

1983, alleging that twenty-eight defendants were deliberately

indifferent to his serious medical needs in violation of the

Eighth Amendment. Shortly thereafter, the District Court

6

dismissed Pearson’s complaint for failure to state a claim,

and, on October 16, 2009, we vacated that dismissal, holding

that several of Pearson’s allegations stated a claim for

deliberate indifference, including his allegations against

Nurse Thomas, Nurse Kline, Nurse Rhodes, and Dr.

McGrath. Pearson v. Prison Health Serv., 348 F. App’x 722,

725-26 (3d Cir. 2009). At the time, we left open whether the

other defendants might be able to raise grounds for dismissal

under Federal Rule of Civil Procedure 12(b)(6). Id. at 725.

And we ordered the District Court to allow Pearson to amend

his complaint before dismissing it. Id. at 726.

On remand, Pearson filed an amended complaint, and

in 2011, the District Court dismissed the claims against all the

defendants except Nurse Kline, Nurse Rhodes, Captain

Papuga, and Dr. McGrath for failure to state a claim. Nine

months later, the District Court entered summary judgment in

favor of Dr. McGrath and dismissed Pearson’s actions against

Nurse Kline, Nurse Rhodes, and Captain Papuga as a sanction

for failure to prosecute. Pearson appealed and this Court

vacated the dismissal against Nurse Thomas, Nurse Kline,

Nurse Rhodes, and Captain Papuga as well as the summary

judgment order in favor of Dr. McGrath. Pearson v. Prison

Health Serv., 519 F. App’x 79, 82-84 (3d Cir. 2013). Once

again, we remanded this case to the District Court.

During the second remand, counsel was appointed for

Pearson, 1 who requested funds for the retention of a qualified

medical expert to develop malpractice and informed-consent

claims against Somerset Hospital and his appendicitis

surgeon, Dr. Pradham. Those requests were denied, and, in

1

Counsel for Pearson is appearing pro bono. We

express our gratitude to counsel for accepting this matter and

for the quality of his representation.

7

2015, the Magistrate Judge issued a report and

recommendation advising that summary judgment be entered

for the five remaining defendants in this case. The District

Court adopted the report and recommendation and granted

summary judgment in favor of the appellees. This timely

appeal followed.

II

The District Court had jurisdiction over this case under

28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. §

1291. We exercise plenary review over a district court’s order

granting summary judgment, applying the same standard as

the district court. Interstate Outdoor Advert., L.P. v. Zoning

Bd. of Twp. of Mt. Laurel, 706 F.3d 527, 529-30 (3d Cir.

2013). To prevail on a motion for summary judgment, the

moving party must demonstrate that “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). To assess

whether the moving party has satisfied this standard, we do

not engage in credibility determinations, Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir.

1998), and we view the facts and draw all reasonable

inferences in the light most favorable to the nonmovant. Scott

v. Harris, 550 U.S. 372, 378 (2007). Material facts are those

“that could affect the outcome” of the proceeding, and “a

dispute about a material fact is ‘genuine’ if the evidence is

sufficient to permit a reasonable jury to return a verdict for

the non-moving party.” Lamont v. New Jersey, 637 F.3d 177,

181 (3d Cir. 2011).

III

The Eighth Amendment, through its prohibition on

cruel and unusual punishment, prohibits the imposition of

“unnecessary and wanton infliction of pain contrary to

contemporary standards of decency.” Helling v. McKinney,

8

509 U.S. 25, 32 (1993). Accordingly, in Estelle v. Gamble,

429 U.S. 97 (1976), the Supreme Court held that prison

officials violate the Eighth Amendment when they act

deliberately indifferent to a prisoner’s serious medical needs

by “intentionally denying or delaying access to medical care

or interfering with the treatment once prescribed.” Id. at 104-

05. In order to sustain this constitutional claim under 42

U.S.C. § 1983, 2 a plaintiff must make (1) a subjective

showing that “the defendants were deliberately indifferent to

[his or her] medical needs” and (2) an objective showing that

“those needs were serious.” Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999); see also Montgomery v. Pinchak, 294

F.3d 492, 499 (3d Cir. 2002).

In this case, the parties agree that Pearson’s

appendicitis and urethral tear both constitute serious medical

needs, and, as we noted the first time this case was appealed,

we think it beyond question that both medical issues were

serious. See Pearson, 348 F. App’x at 724; see also Atkinson

v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003) (“[T]his Court

has defined a medical need as serious if it has been diagnosed

by a physician as requiring treatment”); Sherrod v.

Lingle, 223 F.3d 605, 610 (7th Cir. 2000) (affirming that “an

appendix on the verge of rupturing” is a serious medical

need). Thus, the only question on appeal is whether Pearson

2

While Pearson brings this case under 42 U.S.C. §

1983, the substantive right at issue nonetheless derives from

the Eighth Amendment. As the Supreme Court has remarked,

Section 1983 “is not itself a source of substantive rights, but a

method for vindicating federal rights elsewhere conferred by

those parts of the United States Constitution . . . that it

describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979).

9

has presented sufficient evidence from which a reasonable

jury could find that the defendants were deliberately

indifferent.

In its decision below, the District Court granted

summary judgment on all of Pearson’s Eighth Amendment

claims. It found that expert testimony was “necessary” for a

reasonable jury to find that the defendants acted with

deliberate indifference because Pearson’s “entire claim rests

on the assertions that his care was inadequate.” J.A. 11. On

appeal, Pearson argues that the record is sufficient without

expert testimony to create a genuine issue of material fact as

to whether Nurse Thomas, Nurse Rhodes, Nurse Kline,

Captain Papuga, and Dr. McGrath were deliberately

indifferent. For the reasons stated below, we disagree with the

District Court’s conclusion that expert testimony was

necessary in this case. And, because the record is sufficient

for a reasonable jury to find that Nurse Rhodes acted with

deliberate indifference to Pearson’s serious medical needs, we

will reverse the District Court’s order, in part, insofar as it

grants summary judgment in favor of Nurse Rhodes.

A

To assess whether summary judgment was appropriate,

we must first consider whether the District Court properly

held that expert testimony was necessary in this case. If that

legal conclusion is correct, we can affirm the District Court’s

decision without further analysis. If not, we must also

consider whether Pearson has offered sufficient evidence for

a reasonable jury to find in his favor.

At the outset, we note that in our most recent opinion

in this case, we observed that it is “not clear that an expert

opinion is necessary.” Pearson, 519 F. App’x at 82. We also

note that our prior consideration of when expert testimony is

required in a deliberate indifference case has only addressed

10

when expert testimony is necessary to create a genuine

dispute that the prisoner’s medical needs are serious. In

Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987), we held

that a district court may properly require expert medical

opinions when, “[a]s laymen, the jury would not be in a

position to decide whether any of the conditions described by

plaintiffs could be classified as ‘serious.’” Id. at 473. In

Brighthwell v. Lehman, 637 F.3d 187 (3d Cir. 2011), we

reiterated our holding in Boring, clarifying that expert

testimony “is not necessarily required to establish the

existence of a serious medical need” and that “[o]ther forms

of extrinsic proof . . . may suffice in some cases.” Id. at 194

n.8.

Because the parties agree that Pearson’s medical need

was serious, this appeal requires us to resolve an issue of first

impression in this Circuit. We must decide for the first time

whether and when medical expert testimony may be

necessary to create a triable issue on the subjective prong of a

deliberate indifference case. In answering this question, three

principles guide our analysis. The first is that deliberate

indifference is a subjective state of mind that can, like any

other form of scienter, be proven through circumstantial

evidence and witness testimony. See, e.g., Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (noting that, when

“intent becomes critical,” it is “important that the trier of fact

hear” the defendant’s “testimony in order to assess his

credibility”); Campbell v. Sikes, 169 F.3d 1353, 1372 (11th

Cir. 1999) (“[P]laintiffs necessarily must use circumstantial

evidence to establish subjective mental intent.”); In re

Kauffman, 675 F.2d 127, 128 (7th Cir. 1981) (“Intent . . .

must be gleaned from inferences drawn from a course of

conduct.” (internal quotation marks omitted)).

11

The second principle is that there is a critical

distinction “between cases where the complaint alleges a

complete denial of medical care and those alleging inadequate

medical treatment.” United States ex. rel. Walker v. Fayette

Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979). Because “mere

disagreement as to the proper medical treatment” does not

“support a claim of an eighth amendment violation,”

Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326, 346 (3d.

Cir. 1987), when medical care is provided, we presume that

the treatment of a prisoner is proper absent evidence that it

violates professional standards of care. See Brown v. Borough

of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is

well established that as long as a physician exercises

professional judgment his behavior will not violate a

prisoner’s constitutional rights”).

The third and final principle is that the mere receipt of

inadequate medical care does not itself amount to deliberate

indifference—the defendant must also act with the requisite

state of mind when providing that inadequate care. Durmer,

991 F.2d at 69 n.13 (noting a plaintiff can only proceed to

trial when there is a genuine issue of fact regarding both the

adequacy of medical care and the defendant’s intent). This

observation is critical because it makes clear that there are

two very distinct subcomponents to the deliberate

indifference prong of an adequacy of care claim. The first is

the adequacy of the medical care—an objective inquiry where

expert testimony could be helpful to the jury. The second is

the individual defendant’s state of mind—a subjective inquiry

that can be proven circumstantially without expert testimony.

Based upon these observations, we think that medical

expert testimony may be necessary to establish deliberate

indifference in an adequacy of care claim where, as laymen,

the jury would not be in a position to determine that the

12

particular treatment or diagnosis fell below a professional

standard of care. As is the case with evaluating whether the

prisoner is suffering from a serious medical need, evaluating

whether medical treatment is adequate presents an objective

question typically beyond the competence of a non-medical

professional. Likewise, it makes sense to require a prisoner to

offer extrinsic proof regarding the quality of medical care in

adequacy of care cases when, to defeat our presumption that

the medical care provided to him or her was adequate, the

prisoner must show that the medical official did not exercise

professional judgment. See, e.g., Celotex Corp. v. Catrett, 477

U.S. 317, 331 (1986) (holding that when the burden of

persuasion at trial would be on the nonmoving party,

“the party moving for summary judgment may satisfy Rule

56” by demonstrating that “the nonmoving party’s evidence is

insufficient to establish an essential element of [its] claim”);

Durmer, 991 F.2d at 67 (“[P]rison authorities are accorded

considerable latitude in the diagnosis and treatment of

prisoners.”); Brown, 903 F.2d at 278 (“[A]s long as a

physician exercises professional judgment his behavior will

not violate a prisoner’s constitutional rights.”).

Nonetheless, for two reasons, we disagree with the

District Court’s conclusion that medical expert testimony was

necessary in this case. First, we believe that conclusion

ignores our decision in Brightwell, where we noted that

expert testimony “is not necessarily required” where other

forms of extrinsic proof may suffice. 637 F.3d at 194 n.8. In

this case, Pearson has not offered any extrinsic proof

regarding the quality of his medical care, and, it may well be

possible that other forms of extrinsic proof (e.g., a training

manual, photograph, or medical records) could have

permitted a reasonable jury to find that his medical care was

inadequate. Accordingly, to the extent we agree with the

13

District Court that a reasonable jury could not find in

Pearson’s favor on this record, we believe that it is additional

extrinsic proof, rather than an expert witness specifically, that

was required for him to survive summary judgment.

Second, we disagree with the District Court’s

conclusion that additional proof was needed to create a triable

issue on all, rather than just some, of Pearson’s deliberate

indifference claims. Certainly, for the reasons just stated,

extrinsic evidence is needed to create a triable issue on

Pearson’s adequacy of treatment claims where it would not be

obvious to a layperson that the defendant breached a

professional standard of care. However, Pearson also raises

two claims that he was delayed or denied treatment outright

for a non-medical reason and one adequacy of treatment

claim where it would be apparent to a layperson that his

medical treatment violated a professional standard of care.

For these claims, additional extrinsic proof was not necessary

to survive summary judgment, and we hold that the District

Court erred in concluding otherwise.

For Pearson’s claim that Nurse Rhodes forced him to

crawl to a wheelchair, we believe that Pearson’s sworn

testimony is sufficient to create a genuine issue of fact that

Nurse Rhodes acted with deliberate disregard to his medical

needs. See Bushman v. Halm, 798 F.2d 651, 661 (3d Cir.

1986) (noting that in “the absence of any contrary medical

evidence, plaintiff’s sworn testimony must be taken as true

for purposes of creating a fact issue.”). As noted above, our

precedent provides that a plaintiff can proceed to trial on an

adequacy of care claim when there is a genuine issue of fact

regarding both the adequacy of care and the defendant’s

intent. Durmer, 991 F.2d at 69 n.13. And we do not think

additional extrinsic proof is necessary for Pearson to create a

genuine dispute of fact on either issue for this claim. A

14

layperson is capable of concluding that forcing a screaming

patient to crawl to a wheelchair violates professional

standards of care. 3 And a reasonable jury could find that

Nurse Rhodes knew Pearson could not walk and deliberately

failed to assist him for non-medical reasons.

For Pearson’s claims that he was delayed or denied

medical treatment for a non-medical reason, we also believe

that requiring additional extrinsic proof would be

inappropriate given the subjective nature of scienter and our

case law on deliberate indifference. Again, a delay or denial

of medical treatment claim must be approached differently

than an adequacy of care claim. Fayette Cty., 599 F.2d at 575

n.2. Unlike the deliberate indifference prong of an adequacy

of care claim (which involves both an objective and

subjective inquiry), the deliberate indifference prong of a

delay or denial of medical treatment claim involves only one

subjective inquiry—since there is no presumption that the

defendant acted properly, it lacks the objective, propriety of

medical treatment, prong of an adequacy of care claim.

3

Indeed, expert testimony is not admissible, let alone

required to create a genuine issue of fact as to whether the

care the prisoner received was adequate, if it was obvious to

the jury that the care violated professional standards. See,

e.g., Calhoun v. Yamaha Motor Corp. U.S.A., 350 F.3d 316,

320-21 (3d Cir. 2003) (noting that Rule 702 requires expert

testimony to “assist the trier of fact” (internal quotation marks

omitted)); Fed. R. Evid. 702 advisory committee’s note to

1972 proposed rules (noting that expert testimony is not

helpful “when the untrained layman would be qualified to

determine . . . the particular issue without enlightenment from

those having a specialized understanding of the subject

involved in the dispute”).

15

Absent that objective inquiry, extrinsic proof is not necessary

for the jury to find deliberate indifference in a delay or denial

of medical treatment claim. All that is needed is for the

surrounding circumstances to be sufficient to permit a

reasonable jury to find that the delay or denial was motivated

by non-medical factors. See, e.g., Durmer, 991 F.2d at 68-69;

United States v. Michener, 152 F.2d 880, 885 (3d Cir. 1945)

(“[I]t is for the jury to determine the weight to be given to

each piece of evidence . . . particularly where the question

at issue is the credibility of the witness.”). The District Court

erred in holding otherwise.

In sum, because it is just as difficult for a layperson to

assess the adequacy of medical care as it is for them to assess

the seriousness of a medical condition, we hold that medical

expert testimony may be necessary in some adequacy of care

cases when the propriety of a particular diagnosis or course of

treatment would not be apparent to a layperson. Nonetheless,

we disagree with the District Court’s conclusion that expert

testimony was necessary in this case because we are not

satisfied that medical expert testimony would be necessary

for all of Pearson’s claims, nor are we satisfied that other

forms of extrinsic proof would not have sufficed.

B

Because the District Court incorrectly held that expert

testimony was necessary for Pearson to survive summary

judgment, we must now consider whether the record in this

case was sufficient to create a genuine issue of material fact

as to whether Nurse Thomas, Nurse Rhodes, Nurse Kline,

Captain Papuga, and Dr. McGrath were deliberately

indifferent to Pearson’s serious medical needs. As the

Supreme Court has explained, “deliberate indifference entails

something more than mere negligence” and is a subjective

standard that requires the official to both “be aware of facts

16

from which the inference could be drawn that a substantial

risk of serious harm exists” and to “also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 835-37 (1994). In prior

cases, we have found deliberate indifference in a variety of

contexts including where (1) prison authorities deny

reasonable requests for medical treatment, (2) knowledge of

the need for medical care is accompanied by the intentional

refusal to provide it, (3) necessary medical treatment is

delayed for non-medical reasons, and (4) prison authorities

prevent an inmate from receiving recommended treatment for

serious medical needs. Lanzaro, 834 F.2d at 347. Because

each defendant played a different role in regard to Pearson’s

treatment at SCI Somerset, we will address Pearson’s claims

against each of them in turn.

1. Claims Against Nurse Thomas

Pearson first claims that the District Court erred when

granting summary judgment to Nurse Thomas. He argues that

a reasonably jury could find that she acted with deliberate

indifference because she did not raise his abdominal pain with

other staff and offered no medical assistance other than to

place him on sick call.

We disagree. First, even if a reasonable jury could find

that Nurse Thomas was negligent in diagnosing or treating his

pain, that would not be enough for the jury to find that Nurse

Thomas acted with deliberate indifference in violation of the

Eighth Amendment. As the Supreme Court has held, “a

complaint that a physician has been negligent in diagnosing

or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Estelle,

429 U.S. at 106; see also Spruill v. Gillis, 372 F.3d 218, 235

(3d Cir. 2004) (“Allegations of medical malpractice are not

sufficient to establish a Constitutional violation.”).

17

Second, while Pearson claims that Nurse Thomas

delayed or denied him medical care, it is undisputed that she

examined him, diagnosed him with a pulled muscle, and

decided not to elevate his condition based on her opinion that

it was not severe. Thus, his claim against her is one that she

inadequately diagnosed and treated his medical condition. As

we remarked earlier, that distinction is critical—because the

deliberate indifference standard “affords considerable latitude

to prison medical authorities in the diagnosis and treatment of

the medical problems of inmate patients,” we must “disavow

any attempt to second-guess the propriety or adequacy of

[their] particular course of treatment” so long as it “remains a

question of sound professional judgment.” Inmates of

Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.

1979) (internal quotation marks omitted); see also Brown,

903 F.2d at 278 (“[I]t is well established that as long as a

physician exercises professional judgment his behavior will

not violate a prisoner’s constitutional rights.”); Fayette

Cty., 599 F.2d at 575 n.2 (“[F]ederal courts are generally

reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.”

(internal quotation marks omitted)).

Here, Pearson has offered no circumstantial evidence

suggesting that Nurse Thomas subjectively appreciated the

true seriousness of the risk of harm. Nor did he produce

extrinsic evidence suggesting that Nurse Thomas’s treatment

decision regarding the symptoms of which she had awareness

was “a substantial departure from accepted professional

judgment, practice, or standards” such that a reasonable jury

could conclude that she “actually did not base [her] decision

on such judgment.” Youngberg v. Romeo, 457 U.S. 307, 323

(1982). Accordingly, no reasonable jury could find that she

acted with the “obduracy and wantonness” that violates the

18

Eighth Amendment, and we agree with the District Court that

Nurse Thomas is entitled to summary judgment. Whitley v.

Albers, 475 U.S. 312, 319 (1986) (“It is obduracy and

wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual

Punishments Clause . . . .”).

2. Claims Against Nurse Kline

For similar reasons, we also agree with the District

Court that Nurse Kline is entitled to summary judgment.

Although Pearson argues that a reasonable jury could find

that she was deliberately indifferent to his appendicitis when

she told him that his gallbladder was failing but merely

offered him Tylenol and Maalox, we disagree. Without

extrinsic evidence showing that a failing gall bladder is

emergent or necessitates some other response, no layperson

would be able to find that Nurse Kline’s determination that

Pearson should rest until his examination in the morning was

“a substantial departure from accepted professional judgment,

practice, or standards.” Youngberg, 457 U.S. at 323. Hence no

reasonable jury could find that this response violated the

Eighth Amendment. See, e.g., Brown, 903 F.2d at 278 (“[I]t is

well established that as long as a physician exercises

professional judgment his behavior will not violate a

prisoner’s constitutional rights.”).

Likewise, while Pearson maintains that a reasonable

jury could find that Nurse Kline acted with deliberate

indifference to his urethral tear when she initially declined to

examine his bleeding on April 15 and then noted a “copious”

amount of blood, J.A. 126, in his underwear without

escalating his situation, we believe that the record fails to

create a triable issue as to whether Nurse Kline acted with

deliberate indifference. Whether or not Nurse Kline escalated

Pearson’s condition, it is clear that his condition was elevated

19

to Dr. McGrath once Pearson was taken to the infirmary.

Nurse Kline cannot be held liable for allowing a different

nurse to escalate Pearson’s condition, nor can she be held

liable for following Dr. McGrath’s orders that Pearson remain

in the infirmary overnight. See Durmer, 991 F.2d at 69

(noting non-physicians cannot “be considered deliberately

indifferent simply because they failed to respond directly to

the medical complaints of a prisoner who was already being

treated by the prison doctor”).

Finally, even if Nurse Kline refused to examine

Pearson when the correctional officer first called about his

bleeding, the circumstances surrounding this refusal are not

sufficient to create a triable issue as to whether she violated

the Eighth Amendment. While Pearson points to evidence

that Nurse Kline delayed her examination because she

believed that his bleeding was normal after surgery, this

serves only to reinforce that she failed to immediately

appreciate the severity of his medical needs. Absent evidence

that the seriousness of his bleeding was communicated to her

at that time, a reasonable jury could not conclude she was

“aware of facts from which the inference could be drawn that

a substantial risk of serious harm existe[d]” and that she “also

dr[ew] the inference. See Farmer, 511 U.S. at 837. And that

is only particularly so here—given this lack of

communication regarding the seriousness of the bleeding, and

given that Pearson was under the care of Dr. McGrath, who

had prescribed medicine and physical therapy upon Pearson’s

return from his appendectomy, Nurse Kline was justified in

believing that Pearson was not in danger absent instructions

20

from Dr. McGrath or Pearson’s surgeon that bleeding should

be treated as more than a normal consequence of his surgery. 4

3. Claims Against Nurse Rhodes

Pearson next argues that a reasonable jury could find

that Nurse Rhodes acted with deliberate indifference to his

medical needs because Nurse Rhodes (1) refused to examine

him in his cell when the block officer first called medical, (2)

forced him to crawl to the wheelchair to obtain medical

treatment, and (3) did nothing but order him placed in the

infirmary overnight despite recognizing signs of appendicitis.

We agree with Pearson that these claims create a triable issue

as to whether Nurse Rhodes acted with deliberate indifference

to his needs. We will therefore reverse the order of the

District Court, in part, insofar as it grants summary judgment

in favor of Nurse Rhodes.

4

In Spruill, we specifically indicated that a non-

medical prison official will not be chargeable with deliberate

indifference, “absent a reason to believe (or actual

knowledge) that prison doctors or their assistants are

mistreating (or not treating) a prisoner.” 372 F.3d at 236.

Now confronted with a set of defendants who are not

physicians but have some amount of medical training, we

clarify that the same division of labor concerns that underlie

that rule apply when a nurse knows that a prisoner is under a

physician’s care and has no reason to believe that the doctor

is mistreating the prisoner. Given that it is the physician with

the ultimate authority to diagnose and prescribe treatment for

the prisoner, a nurse who knows that the prisoner is under a

physician’s care is certainly “justified in believing that the

prisoner is in capable hands,” id., so long as the nurse has no

discernable basis to question the physician’s medical

judgment.

21

Pearson’s claim that Nurse Rhodes failed to examine

him when he initially requested medical assistance creates a

triable issue as to whether Nurse Rhodes was deliberately

indifferent because it raises a claim that Pearson was either

denied reasonable requests for medical treatment, or

necessary medical treatment was delayed for non-medical

reasons. Unlike Nurse Kline, Nurse Rhodes cannot claim that

Pearson was already being treated by a physician. In addition,

when Rhodes initially denied medical care, he was confronted

with a report from a corrections officer that an inmate was

suffering from excruciating pain—an inmate who had twice

sought medical assistance earlier in the day, reporting the

same complaint but with increasing severity.

As Farmer noted, an official may not escape liability by

“merely refus[ing] to verify underlying facts that he strongly

suspect[s] to be true, or declin[ing] to confirm strong

inferences of risk that he strongly suspect[s] to

exist.” Farmer, 511 U.S. at 843 n.8. Neither is he immunized

from liability merely because he delays care for an emergent

condition in reliance on a sick call policy. See Natale v.

Camden Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir.

2003). Because these circumstances may suggest that Nurse

Rhodes engaged in a pattern of deliberately indifferent

conduct in spite of evidence that he was aware that Pearson

faced a substantial risk of harm, there is a genuine issue of

fact as to why Nurse Rhodes refused to examine Pearson and

“we cannot conclude as a matter of law [his] conduct did not

run afoul of the [Eighth Amendment].” Durmer, 991 F.2d at

68.

Likewise, Pearson’s claim that he was forced to crawl

to the wheelchair creates a genuine dispute as to whether

Nurse Rhodes acted with deliberate indifference. Viewing the

record in Pearson’s favor, as we must, Nurse Rhodes forced a

22

patient, who had been screaming in pain for several hours, to

crawl to a wheelchair despite indicating that he was unable to

walk. We do not believe that additional evidence is required

for a reasonable jury to conclude that this conduct violates a

professional standard of care or that such conduct entails the

obduracy and wantonness that is proscribed by the Eighth

Amendment. See, e.g., Cummings v. Roberts, 628 F.2d 1065,

1068 (8th Cir. 1980) (reversing grant of summary judgment

where the plaintiff claimed that defendants refused to give

him a wheelchair, forcing him to crawl on the floor). 5

Finally, Pearson’s claim that Nurse Rhodes merely

ordered observation despite recognizing signs of appendicitis

creates a triable issue as to whether Nurse Rhodes acted with

deliberate indifference. On its own, this claim might not be

sufficient to survive summary judgment—because Nurse

Rhodes examined and diagnosed Pearson in the infirmary, we

would be confronted with an adequacy of treatment claim that

lacks extrinsic evidence showing that Nurse Rhodes’ response

“so deviated from professional standards of care that it

5

Rhodes correctly points out that Pearson’s only

evidence of this event is his own testimony. However,

counsel for Rhodes conceded at argument that we would be

compelled to reverse and remand this issue for trial if it did,

in fact, occur as Pearson describes. See Oral Argument at

42:38–44:47. We, of course, must credit Pearson’s testimony.

While we require more than conclusory affidavits to create a

genuine issue of material fact, MD Mall Assocs., LLC v. CSX

Transp., Inc., 715 F.3d 479, 485 n.6 (3d Cir. 2013), when

deciding a motion for summary judgment, “the evidence of

the non-movant is to be believed,” and credibility

determinations must be left to the jury. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

23

amounted to deliberate indifference.” Allard v. Baldwin, 779

F.3d 768, 772 (8th Cir. 2015) (internal quotation marks

omitted). But that examination did not occur until after Nurse

Rhodes refused to treat Pearson and allegedly forced him

crawl to a wheelchair. This pattern of disinterested conduct

“separates this complaint from ordinary allegations of

medical malpractice.” White v. Napoleon, 897 F.2d 103, 109

(3d Cir. 1990). Indeed, while “one reasonable reading of the

record in this case” is that Nurse Rhodes ordered observation

in the infirmary based on his informed medical judgment,

“we cannot conclude that it is the only one” because, insofar

as the record suggests that Nurse Rhodes repeatedly ignored

Pearson’s requests for treatment based on non-medical

reasons, a reasonable jury could find that Nurse Rhodes also

had a non-medical motive for leaving Pearson in the

infirmary overnight. Durmer, 991 F.2d at 67. Accordingly,

because Nurse Rhodes suspected appendicitis, a condition

that would have put him on notice that a “substantial risk of

serious harm exists,” we cannot conclude as a matter of law

that this observation order did not violate the Eighth

Amendment. Farmer, 511 U.S. at 837. 6

6

Nurse Rhodes argued that he was entitled to qualified

immunity because it was not clearly established at the time of

these events that an official would be liable for a delay in care

without expert medical evidence that the inmate suffered

harm as a result. This fundamentally misunderstands the

qualified immunity inquiry. Qualified immunity requires us to

ask whether a reasonable official would have understood, at

the time of the challenged conduct, that what he or she was

doing violated an established right. Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011).That analysis cannot turn on facts that

could not be known to an official at the time, like whether the

24

4. Claims Against Dr. McGrath

Next, Pearson maintains that Dr. McGrath

demonstrated a pattern of deliberate indifference to his

medical needs through three incidents after he returned to the

prison following his appendix surgery. The first is that Dr.

McGrath ordered Pearson sent directly back to the general

population without any observation period in the prison

infirmary, and without ordering the follow-up prescribed by

Pearson’s surgeon. The second is that Dr. McGrath was angry

and simply ordered Pearson to be placed in the infirmary

overnight when Nurse Magyar called him about Pearson’s

bleeding on April 15. The third is that Dr. McGrath told

Pearson his bleeding was normal and discharged him back to

his cell after an examination on April 16.

We agree with the District Court that Dr. McGrath is

entitled to summary judgment. Whether or not Dr. McGrath

was angry at being called at home on April 15, Pearson does

not dispute that Dr. McGrath prescribed treatment over the

phone, ordering observation in the infirmary, antibiotics, and

plaintiff would ultimately be able to produce expert testimony

that the delay resulted in harm. It was sufficiently clear at the

time of these events that exposing an inmate to the kind of

severe and protracted pain and mental anxiety alleged in this

case could expose an official to Eighth Amendment

liability. See Lanzaro, 834 F.2d at 346; White, 897 F.2d at

111.

25

increased intake of fluids. J.A. 115-16, 377. 7 Pearson also

concedes that he was not in immediate danger at the time, and

that Dr. McGrath examined him at 6:45 a.m. the following

morning, diagnosing his bleeding as a normal consequence of

the surgery in addition to collecting lab work and scheduling

a follow-up appointment. J.A. 116-17, 377-78. Because

medical treatment was provided on both occasions and

Pearson has provided no extrinsic evidence that would permit

a layperson to conclude that Dr. McGrath’s actions

constituted “a substantial departure from accepted

professional judgment, practice, or standards,” a reasonable

jury could not find that he was deliberately indifferent either

occasion. Youngberg, 457 U.S. at 323; see also Pierce, 612

F.2d at 754 (“Courts will disavow any attempt to second-

guess the propriety or adequacy of a particular course of

treatment” so long as it “remains a question of sound

professional judgment.” (internal quotation marks omitted)).

Taking those claims away, the sole assertion that

Pearson has against Dr. McGrath is that McGrath was

deliberately indifferent for sending him back to the general

prison population without any observation period in the

prison infirmary and without ordering the lifting restrictions

or follow-up appointment prescribed by Pearson’s surgeon.

As with Pearson’s other claims against Dr. McGrath, the

record is not sufficient for a reasonable jury to conclude that

7

Pearson points to this call as circumstantial evidence

of Dr. McGrath’s state of mind that reflects, in combination

with evidence of the totality of his interactions with Dr.

McGrath, deliberate indifference. While such circumstantial

evidence may be relevant to the subjective inquiry, the

evidence here is still not sufficient for a reasonable jury to

conclude that he had a sufficiently culpable state of mind.

26

Dr. McGrath was deliberately indifferent to his medical

needs. Since Dr. McGrath ordered pain medication, exercise

to help with breathing, and a follow-up medical appointment

upon Pearson’s return to the prison, any complaint that he

should have ordered additional observation is no more than a

“mere disagreement as to the proper medical treatment” that

does not “support a claim of an eighth amendment violation.”

Lanzaro, 834 F.2d at 346; see J.A. 132. At the same time,

while prison authorities may be held liable under the Eighth

Amendment when they “prevent an inmate from receiving

recommended treatment for serious medical needs,” we

cannot find that this is such a case. Pierce, 612 F.2d at 762.

Unlike in our prior interference-with-prescribed treatment

cases, there is nothing in the record indicating that Dr.

McGrath refused to allow Pearson to receive the prescribed

treatment, let alone that Dr. McGrath knew that the lifting

restriction or the follow-up appointment had been prescribed. 8

Absent such evidence, this claim is merely that Dr. McGrath

negligently failed to order the prescribed treatment, and,

because deliberate indifference “entails something more than

mere negligence,” no reasonable jury could find him liable

for this conduct under the Eighth Amendment. Farmer, 511

U.S. at 835.

5. Claims Against Captain Papuga

Finally, we agree with the District Court that Captain

Papuga is entitled to summary judgment. As our precedent

makes clear, “a non-medical prison official” cannot “be

charge[d] with the Eighth Amendment scienter requirement

of deliberate indifference” when the “prisoner is under the

8

In fact, as the follow-up appointment was scheduled

to take place after the second surgery, it is not the case that

the prison ever violated the surgeon’s orders.

27

care of medical experts” and the official does not have “a

reason to believe (or actual knowledge) that prison doctors or

their assistants are mistreating (or not treating) a prisoner.”

Spruill, 372 F.3d at 236; see also Durmer, 991 F.2d at 69

(holding that non-physicians cannot “be considered

deliberately indifferent simply because they failed to respond

directly to the medical complaints of a prisoner who was

already being treated by the prison doctor”). Whether or not

Captain Papuga ordered Sergeant Rittenour to discard

Pearson’s blood, Pearson was being treated by medical, and

Captain Papuga was only made aware of Pearson’s bleeding

after the cell block officers contacted medical regarding his

condition. J.A. 324, 385. Accordingly, since Pearson has

identified no reason for Captain Papuga to believe that he was

being mistreated, no reasonable jury could conclude that

Captain Papuga was deliberately indifferent for failing to

second-guess the medical staff’s appraisal of the situation.

IV

Regretfully, we must comment on one final issue that

has percolated over the course of this litigation. During his

prior appeal in 2013, Pearson argued that the Magistrate

Judge and District Judge should recuse themselves because

they were biased against him. At the time, we were satisfied

that neither judge would harbor bias on remand, but we did

express concern with their editorializing on prisoner litigation

when dismissing Pearson’s complaint. Specifically, the

Magistrate Judge’s report and recommendation “criticized

inmate medical claims in general” and made general

observations regarding frivolous litigation filed by prisoners

that had “no apparent bearing on the merits of Pearson’s

claims.” Pearson, 519 F. App’x at 84. 9

9

The precise language we admonished was:

28

When we remanded this case, we were hopeful that the

Magistrate Judge and District Judge would cease making

these kinds of irrelevant, categorical statements for several

reasons, including that they are unnecessary and might cast

our judicial system in a bad light by leading an observer to

question the impartiality of these proceedings. In addition, it

is antithetical to the fair administration of justice to pre-judge

an entire class of litigants, and we expect courts to conduct, at

a minimum, a careful assessment of the claims of each party.

By failing to exhibit such an individualized inquiry, these

statements disserved the important principle that “justice must

satisfy the appearance of justice.” Offutt v. United States, 348

U.S. 11, 13 (1954).

Despite our optimism, and despite our admonishment

of these sorts of categorical statements, this commentary

Inmate complaints often result in the naming of

as many defendants as the inmate can remember

. . . even though there is no legal claim against

them in the complaint, no viable legal claim

within any likely amendment to the complaint,

and no interest on the part of the inmate in

following through. They generate large

litigation expenses which divert resources even

from the medical care provided to inmates not

to mention other uses the Commonwealth of

Pennsylvania and its taxpayers might have for

the money. This case is a textbook example.

Pearson, 519 F. App’x at 84 (alteration in original) (quoting

Pearson v. Prison Health Service, No. 09-97, 2011 WL

4473462, at *3 (W.D. Pa. Aug. 18, 2011)).

29

continued since we last remanded this case to the District

Court. While Pearson has not renewed his motion for recusal

either in the District Court or on appeal, we note that in one

prior opinion, the District Court adopted a report and

recommendation in which the Magistrate Judge stated: “To

repeat what I have said before, what is even more perverse is

that [appointing an expert in prisoner litigation] would be a

benefit only available to the class of litigants that has

uniquely demonstrated to Congress that it files an undue

amount of frivolous and meritless lawsuits.” Pearson v.

Prison Health Serv., No. 09-97, 2014 WL 2860660, at *4

(W.D. Pa. June 23, 2014). Likewise, in the report and

recommendation adopted by the District Court in granting

summary judgment to the appellees, the Magistrate Judge

made several statements regarding prisoners such as noting

that “anyone reading the news is familiar with inmates using

bodily fluids, especially blood, as weapons.” J.A. 459. 10

10

“Although a magistrate is not an Article III judge, …

a district court may refer dispositive motions to a magistrate

for a recommendation so long as ‘the entire process takes

place under the district court's total control and jurisdiction,’

and the judge ‘exercise[s] the ultimate authority to issue an

appropriate order.’” Thomas v. Arn, 474 U.S. 140, 153 (1985)

(citation omitted); see also 28 U.S.C. § 636(b)(1). The

District Court is thus ultimately responsible for the decision,

including for the Magistrate’s report and recommendation if it

is adopted in its entirety, but magistrate judges play an

important role in the operation of the federal courts and must

take care to word their published recommendations

accordingly. Indeed, it is equally applicable to District Judges

and Magistrates that “[w]henever a judge’s impartiality

‘might reasonably be questioned’ in a proceeding, 28 U.S.C.

30

As we noted in Pearson’s prior appeal and will

reiterate now, Pearson suffered from two serious medical

conditions, and “it does not appear . . . that he filed this

lawsuit for recreational purposes or to harass prison

personnel.” Pearson, 519 F. App’x at 84. It appears he filed

this suit because he genuinely believes that the prison

officials acted deliberately indifferent to his medical needs in

violation of his constitutional rights. Whether or not he

ultimately prevails, equality before the law is one of the

founding principles of our government and Pearson deserves

to have his case treated as carefully and thoughtfully as any

other litigant’s.

While we remain convinced that the Magistrate Judge

and District Judge are capable of handling Pearson’s trial

without any bias, we trust that our message will be heard on

this third remand and that this editorializing will cease going

forward.

V

For the reasons set forth above, we will affirm the

judgment of the District Court as to Nurse Thomas, Nurse

Kline, Captain Papuga, and Dr. McGrath, reverse as to Nurse

Rhodes, and remand for further proceedings consistent with

this opinion.

§ 455(a) commands the judge to disqualify himself sua sponte

in that proceeding.” Alexander v. Primerica Holdings, Inc.,

10 F.3d 155, 162 (3d Cir. 1993).

31