NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 11-3646
                                    _____________

                                AARON WILLIAMS,

                                                    Appellant

                                           v.

   GUARD BRYANT FIELDS, BARRY JONES, GUARD, SERGEANT COATES,
            GUARD HUGHES, C/O LACKEY, LOUIS GIORLA,
       COMMISSIONER OF PRISONS, PRISON HEALTH SERVICES,
        CITY OF PHILADELPHIA, CITY HALL (MAYOR‘S OFFICE)

                                  _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 2-09-cv-00781)
                        District Judge: Hon. J. Curtis Joyner
                                  _______________

                                Argued: May 31, 2013

               Before: JORDAN and VANASKIE, Circuit Judges, and
                         RAKOFF , Senior District Judge.

                               (Filed: August 23, 2013)




 The Honorable Jed S. Rakoff, United States Senior District Judge for the Southern
District of New York, sitting by designation.
Bruce C. Bishop, Esquire
Kathryn J. Gainey, Esquire
Jill C. Maguire, Esquire [ARGUED]
Jessica I. Rothschild, Esquire
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Washington, DC 20036

              Counsel for Appellant

Kelly S. Diffily, Esquire [ARGUED]
City of Philadelphia Law Department
17th Floor
1515 Arch Street
One Parkway
Philadelphia, PA 19102-0000

              Counsel for Appellees, Bryant Fields, Barry Jones,
              Coates, Hughes, Lackey, Louis Giorla, and
              City of Philadelphia

Alan S. Gold, Esquire [ARGUED]
Gold & Ferrante
261 Old York Road
Suite 526
Jenkintown, PA 19046-000

              Counsel for Appellee, Prison Health Services

                                    _______________

                               OPINION OF THE COURT
                                   _______________

RAKOFF, District Judge.

       Aaron Williams appeals a final judgment of the United States District Court for

the Eastern District of Pennsylvania dismissing Williams‘ claims for denial of medical

treatment and excessive force stemming from two incidents occurring while he was

detained pending trial at the Philadelphia Detention Center. Williams claims that, in April

                                            2
and June 2008, officers at the Detention Center beat him without provocation, and that

Prison Health Services, Inc. (―PHS‖), the private contractor operating the medical

department at the Detention Center, refused to fill his prescription for pain killers after

the second of these altercations pursuant to a policy of denying such treatment. The

District Court granted summary judgment in favor of PHS on Williams‘ claim for denial

of medical treatment, finding that Williams had failed to show that refusal to fill the

prescription was undertaken pursuant to a PHS policy; dismissed the same claim against

the City of Philadelphia at the start of trial, holding that Williams could not maintain his

claim without a medical expert to testify to whether his injuries were serious enough to

raise constitutional concerns; and granted judgment as a matter of law at the close of

Williams‘ case as to the remaining defendants on his excessive-force claims, finding that

the officers had used a justifiable amount of force because Williams had been

―confrontational.‖ For the following reasons, we affirm the dismissal of Williams‘ denial-

of-treatment claims and reverse and remand for retrial on Williams‘ excessive-force

claims.

       The factual allegations, taken most favorably to appellant, are as follows: 1



       1
         The district court had jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291. ―We exercise plenary review over a district court‘s
grant of summary judgment and apply the same standard of whether genuine issues as to
material fact exist such that a reasonable jury could return a verdict for the plaintiff.‖
Knopick v. Connelly, 

, 606 (3d Cir. 2011). We also apply largely the same
standard to a district court‘s grant of a motion for judgment as a matter of law. See
Wittekamp v. Gulf & W., Inc., 

, 1141 (3d Cir. 1993). Thus, in both
circumstances, we must determine whether, ―viewing the evidence in the light most
favorable to [the non-moving party] and giving him the advantage of every fair and
                                              3
       At all times relevant, Aaron Williams was a pretrial detainee held at the

Philadelphia Detention Center awaiting trial on burglary charges. On April 26, 2008,

Williams‘ dormitory section was the last group in the Detention Center to be served

lunch, and the cafeteria had run out of various items. When Williams approached

Corrections Officer Malissa Hughes to ask for more trays and food, Hughes refused, and

Williams asked to see a supervisor. Hughes then hit Williams with a ruler, and, when she

attempted to hit him again, Williams grabbed the ruler out of her hands. Hughes then

began hitting Williams with her fists and attempted to knee him in the groin. Williams

testified at trial that he did not hit Hughes, and that when he was told he would be sent to

the holding section, he offered to go willingly. When the Detention Center‘s response

team arrived, a member of the team asked Hughes whether Williams had ―put his hands

on‖ her. (App. at 309.) Hughes falsely stated that Williams had, at which point a member

of the response team grabbed Williams by the collar and another grabbed the cuff of his

pants, knocking him to the ground. The four members of the response team and Hughes

then began kicking Williams. Kevin Mason, another inmate and an eyewitness who

testified on behalf of Williams, testified that Williams was subdued on the ground at this

point but that Corrections Officer Charlene Lackey said, ―Move, move, move, let me

spray him,‖ and repeatedly pepper-sprayed Williams in the face. (App. at 342.)

       In the second incident, on June 9, 2008, inmates in the section directly across from

Williams‘ section threw water at their guards, leading Sergeant Andrew Coates to initiate

reasonable inference, there is insufficient evidence from which a jury could reasonably
find liability.‖ 

of the section. While Sergeant Coates was speaking to the responsible

individuals, someone from Williams‘ section yelled, ―Hurry up and get it over with and

get off the block.‖ (App. at 312.) Coates looked at Williams (who testified he did not

make the statement) and instructed Corrections Officers Bryant Fields and Barry Jones to

handcuff Williams. Officer Fields approached Williams, who was wearing only a pair of

shorts and slippers, and told him to get dressed. After Williams repeatedly questioned the

officers as to why they were directing their attention to him, Jones swung at Williams

from behind, and his forearm hit Williams‘ nose. Jones then put Williams in a headlock,

while Fields hit Williams in the face repeatedly, and Jones slammed Williams to the

floor, causing Williams to hit his head. At one point, Williams lost consciousness.

Williams testified that he never struck any of the guards, nor did he attempt to do so.

When the supervising lieutenant arrived, he found several officers and Sergeant Coates

standing in Williams‘ section with Williams lying on the floor.

       After this second altercation, Williams was taken to the medical department, run

by PHS, in order to receive treatment for his injuries. Williams had a laceration to his

forehead, ―swelling and deformity [to the] bridge of [his] nose,‖ and difficulty breathing

through his nose. (App. at 94.) A PHS physician sutured Williams‘ forehead wound and

ordered an x-ray of his nose. The physician prescribed Percogesic, a combination of

acetaminophen and an antihistamine, which would serve as a pain reliever and relieve

nasal swelling, and gave him an initial dose at his examination. However, PHS later

refused to fill the prescription, stating that Williams must instead purchase Tylenol at the

commissary. Williams, lacking funds to make such a purchase, therefore received no

                                             5
further pain medication for his broken nose despite the prescription by his treating

physician.

       Williams then filed a grievance on June 30, 2008, in which he wrote that he ―was

not afforded any medical care or medication for my—what should have been—obvious

pain. I was told that I would [have] to buy pain killers from the commissary. I explained

that I had no money to buy pain killers but was told that [a] new policy pr[e]vents me

from being prescribed pain killers.‖ (App. at 182.) The prison‘s grievance response

contained a ―factual findings‖ section, reading: ―Inmate was prescribed Percogesic on

6/9/08 for pain. For chronic pain, Tylenol is available at commissary, if inmate has no

funds, please contact social services.‖ (App. at 183.) Williams appealed this

determination and subsequently received a letter from Commissioner Louis Giorla, which

denied Williams‘ appeal. Commissioner Giorla wrote, in part, that Williams was ―advised

to get Tylenol from the commissary.‖ (App. at 184.)

       On March 11, 2009, Williams filed pro se a complaint bringing claims under 42

U.S.C. § 1983. As relevant to the instant appeal, Williams filed claims against Officers

Lackey and Hughes for excessive force in relation to the April 2008 incident; against

Officers Fields and Jones and Sergeant Coates for excessive force in relation to the June

2008 incident; and against PHS and the City of Philadelphia for denial of medical

treatment.2



2
  Williams also asserted excessive force, failure-to-train, and failure-to-discipline claims
against the City of Philadelphia and Prison Commissioner Louis Giorla that are not at
issue on this appeal.
                                              6
       On October 27, 2009, the district court granted summary judgment to PHS on

Williams‘ denial-of-medical-treatment claim. The only part of that ruling that Williams

here appeals is the district court‘s determination that Williams had failed to make out a

triable case that the denial of Williams‘ pain medication was pursuant to a policy of PHS.

       On August 29 and 30, 2011, the district court held a jury trial on Williams‘ claims

against the remaining defendants. Before trial began, the district court granted judgment

in favor of the City on Williams‘ denial-of-treatment claim, finding that those claims

could not proceed because Williams did not have a medical expert to testify as to whether

Williams‘ injuries from the second altercation rose to the level of seriousness required for

a constitutional denial-of-treatment claim. Accordingly, the trial proceeded solely as to

the issue of excessive force.

       At the close of Williams‘ case-in-chief, the district court granted judgment as a

matter of law in favor of the City on Williams‘ failure-to-train and failure-to-discipline

claims, and in favor of Commissioner Giorla based on his lack of personal involvement

in the excessive force claims. Those rulings are not challenged on appeal. Defense

counsel also made a motion for judgment as a matter of law on behalf of the corrections

officer defendants. At this point, the district court engaged in an extended colloquy with

Williams that included a discussion of Williams having been confrontational with the

guards. The Court then granted judgment as a matter of law in favor of the remaining




                                             7
defendants. (App. at 364–74.) The district court entered final judgment on September 1,

2011, and Williams timely appealed.3

                                      DISCUSSION

   A. Excessive Force Claims

       ―[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual

punishment forbidden by the Eighth Amendment.‖ Whitley v. Albers, 

, 319

(1986).4 Whether this standard has been met ―ultimately turns on whether force was

applied in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.‖ 

that exceeds that

which is reasonable and necessary under the circumstances is actionable.‖ Giles v.

Kearney, 

, 328 (3d Cir. 2009).

       Williams argues that the district court erred in granting judgment as a matter of

law at the close of his case-in-chief on his excessive force claims against the corrections

officer defendants because he presented evidence from which a reasonable jury could

infer that the guards used excessive force against him. As to both incidents, Williams

further argues that the district court, rather than drawing all inferences in Williams‘ favor




       3
        On January 25, 2012, a motions panel of this court appointed pro bono counsel to
represent Williams in this appeal.
       4
         As a pretrial detainee, Williams was subject to the protections of the Fourteenth
Amendment, not the Eighth Amendment. However, we have stated that ―the Due Process
rights of a pretrial detainee are at least as great as the Eighth Amendment protections
available to a convicted prisoner.‖ Boring v. Kozakiewicz, 

, 471 (3d Cir.
1987). Accordingly, we analyze Williams‘ claims under Eighth Amendment standards.
                                              8
as the non-movant, instead substituted its own subjective judgment that Williams‘

behavior permitted the guards to act as they did.

          The appellees do not contest the notion that the district court erroneously relied on

its own factual findings as to whether the guards‘ actions were justified, rather than

leaving it to the jury to decide. See Lightning Lube, Inc. v. Witco Corp., 

,

1166 (3d Cir. 1993) (―In determining whether the evidence is sufficient to sustain

liability, the court may not weigh the evidence, determine the credibility of witnesses, or

substitute its version of the facts for the jury‘s version.‖). Appellees argue, however, that

the district court‘s judgment can be upheld on alternative grounds.

          As to the April 2008 incident, appellees argue that Williams failed at trial to

present evidence of any injuries he suffered as a result of the officers‘ alleged use of

excessive force, such as testimony regarding any subjective pain he experienced or

medical records that would establish such pain. However, appellees confuse force with

injury.

          ―[F]orce, rather than injury, is the relevant inquiry‖ for excessive force claims.

Wilkins v. Gaddy, 

, 1181 (2010) (per curiam) (Thomas, J., concurring).

Thus, the Constitution is violated ―[w]hen prison officials maliciously and sadistically

use force to cause harm,‖ regardless of ―whether or not significant injury is evident.‖

Hudson v. McMillian, 

, 9 (1992). Here, the evidence that Williams, while

taking no physical action himself, was repeatedly kicked, stomped upon, and pepper-

sprayed, was sufficient to raise a reasonable inference of excessive force. It was for the



                                                 9
jury to weigh that evidence and determine its credibility. Judgment as a matter of law was

therefore wrongly granted as to Officers Hughes and Lackey.

       As to the June 2008 incident, appellees concede that judgment as a matter of law

was erroneously granted as to Officers Fields and Jones, who, Williams alleges, punched

him and slammed him to the ground to such an extent that Williams lost consciousness.

Appellees argue, however, that judgment as a matter of law was properly granted as to

Sergeant Coates, as they claim that Williams failed to present evidence to show that

Coates saw Fields‘ and Jones‘ use of force or had a reasonable and realistic opportunity

to intervene. See Smith v. Mensinger, 

, 650 (3d Cir. 2002) (―[A] corrections

officer‘s failure to intervene in a beating can be the basis of liability for an Eighth

Amendment violation under § 1983 if the corrections officer had a reasonable

opportunity to intervene and simply refused to do so.‖).

       Crediting all appropriate inferences in favor of Williams, however, the jury could

have found that the evidence showed that Coates had a reasonable opportunity to observe

the incident, as he was in the adjacent section, which faces Williams‘ section and which

is separated from it only by bars, from which he initially saw Williams and instructed

Fields and Jones to handcuff him. Moreover, the jury could have reasonably inferred that

Coates must have seen the conduct of Officers Fields and Jones and declined to

intervene, as the testimony at trial suggested that the altercation did not stop until the

lieutenant arrived, at which point Coates was present in Williams‘ section. Therefore, the

district court‘s grant of judgment as a matter of law must be reversed as to Sergeant

Coates, as well as, concededly, to Officers Fields and Jones.

                                              10
       In sum, the district court‘s grant of judgment as a matter of law on appellant‘s

excessive force claims is reversed as to defendants Hughes, Lackey, Fields, Jones, and

Coates and remanded for a new trial.5

   B. Denial of Medical Treatment Claims

       ―‗Acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs‘ constitute cruel and unusual punishment under the Constitution.‖

Boring v. Kozakiewicz, 

, 471 (3d Cir. 1987) (quoting Estelle v. Gamble, 

, 106 (1976)). Thus, a plaintiff must show ―(1) that the prison officials were

deliberately indifferent to the inmates‘ medical needs and (2) that those needs were

serious.‖ Reynolds v. Wagner, 

, 172 (3d Cir. 1997). Because the City of

Philadelphia is a municipality and PHS its contractor (and because Williams did not sue

any individual PHS employee who refused to fill his prescription), Williams must prove

that his constitutional rights were violated as a result of a policy or custom to succeed on

his § 1983 claims.6 See Monell v. Dep’t of Soc. Servs. of City of N.Y., 

, 691

(1978); Natale v. Camden Cnty. Corr. Facility, 

, 583 (3d Cir. 2003)

(applying a Monell theory to a claim against PHS).


       5
        Williams seeks reassignment of the case to a different district judge. The judge's
handling of this case does not display the kind of antagonism that warrants such an
extraordinary step. We have every confidence that, on remand, the judge will be fair and
impartial to all parties in the case.
       6
          Although Williams raises in a footnote the argument that Monell‘s limitations
may not apply to a private contractor, he failed to raise this issue below and therefore has
waived the issue. See In re Ins. Brokerage Antitrust Litig., 

, 261 (3d Cir.
2009) (―Absent exceptional circumstances, this Court will not consider issues raised for
the first time on appeal.‖).
                                             11
       As part of its submission below in support of its motion for summary judgment,

PHS appended the Philadelphia Prison System‘s policy on ―Access to Care,‖ which

provides that ―prescriptions and referrals will be honored unless overridden by a senior

physician for valid reasons,‖ and that ―prescribed care must be provided unless a senior

physician overrides a prescription or the inmate refuses care.‖ (App. at 195.)

Furthermore, the Access to Care policy provides that ―inmates do not have the right to

receive convenience care,‖ defined as ―health care requested by an inmate, which does

not require treatment by a QHCP [Qualified Health Care Professional], and that

―QHCP(s) should determine which services are ‗convenience care services‘ and convey

this conclusion to the individual inmate.‖ (App. at 192, 202.) As explained in the affidavit

of Acting Health Services Administrator Maureen Heaney, which was also before the

district court on the motion for summary judgment, ―Mr. Williams alleges . . . that PHS

policy caused PHS personnel to instruct him to buy over-the-counter pain medication at

the commissary even though he could not afford the cost. The policy to which Mr.

Williams refers was created and controlled by the Philadelphia Prison System. PHS did

not create such policy and does not control such policy.‖ (App. at 151.)

       In its opinion granting summary judgment, the district court found that ―PHS does

not dispute that there is a policy requiring inmates to pay for over-the-counter

medication,‖ although ―[t]his policy is established by the City of Philadelphia, not PHS.‖

(App. at 8–9.) Moreover, the court stated that ―[e]ven though a PHS employee may have

violated Plaintiff‘s constitutional rights, the actions of individual PHS employees must be

attributable to a relevant PHS policy or custom in order for liability to attach to PHS.‖

                                             12
(App. at 9–10.) Thus, the district court found that ―[t]he failure to supply the prescribed

medication in this specific instance involves the interpretation of the City of

Philadelphia‘s policy by an individual employee of PHS. Whether the medication was

required medication or convenience care in this single instance was a decision made by

an employee of PHS, not a widespread PHS policy.‖ (App. at 11.) Therefore, the district

court found that Williams failed to meet his burden of establishing a policy or custom

attributable to PHS and granted PHS‘s motion for summary judgment.

       Williams argues on appeal that the district court ignored evidence in the record

creating a genuine dispute of material fact as to whether PHS had a custom, policy, or

practice of denying prescribed medication, and as to whether this was PHS‘s (as opposed

to the City‘s) custom or practice. We do not agree. There is no evidence that PHS had

any policy separate from the City‘s Access to Care policy. Indeed, there is not even

evidence of another situation in which a detainee was denied a pain medication

prescription. See Groman v. Twp. of Manalapan, 

, 637 (3d Cir. 1995) (―[A]

single incident of unconstitutional activity is not sufficient to impose liability under

Monell, unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker.‖). Moreover, neither Williams‘ claim in his grievance form that he was told

at an unidentified time by an unidentified person that a new policy prevented him from

being prescribed pain killers, nor the factual findings in response to that grievance—

stating only that Williams was prescribed Percogesic, ―for chronic pain Tylenol is

available at commissary,‖ and ―if inmate has no funds, please contact social services‖—

                                              13
provide sufficient evidence of a PHS policy of denying prescription pain medications to

survive summary judgment. We therefore affirm the District Court‘s grant of PHS‘s

motion for summary judgment on Williams‘ denial-of-treatment claim.

       Turning to Williams‘ denial-of-medical-treatment claim against the City of

Philadelphia, we conclude that the district court did not err in dismissing Williams‘ claim

before the beginning of trial for failure to present an expert medical witness. As an initial

matter, federal judges have the inherent power to manage cases that come before them,

and they may appropriately refuse to try a claim when they discover, on the eve of trial,

that the claim lacks merit. Cf. Link v. Wabash R. Co., 

, 630–31 (1962)

(discussing courts‘ ―‗inherent power‘ . . . to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases‖). Where, as here, the district court

determined at the outset of trial that the plaintiff would not be able to succeed on his

claims as a matter of law, the court was not obligated to expend the court‘s or the jury‘s

time hearing such claims.

       Furthermore, the district court properly required Williams to present a medical

expert to testify as to whether Williams‘ injuries were serious enough to rise to the level

of constitutional scrutiny for denial of medical treatment. See 

(requiring, along with ―deliberate indifference,‖ that a prisoner‘s injuries be sufficiently

―serious‖ to trigger constitutional scrutiny). Although we have stated that expert

testimony is not required to establish a serious medical need ―[i]n some situations in

which the seriousness of injury or illness would be apparent to a lay person,‖ the example

we gave of such a situation was ―a gunshot wound,‖ the seriousness of which is apparent

                                             14
to any juror. 

. By contrast, in many cases, ―[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.‘‖ 

claimed by Williams—a broken

nose and facial lacerations—while perhaps painful, are arguably no more serious than the

nerve injury suffered in Boring, which we held required expert testimony to establish its

seriousness. See 

―[i]n these circumstances, the district court [may]

properly require[] expert medical opinion, and in its absence properly withdr[a]w the

issue from the jury.‖ 

we affirm the district court‘s dismissal

of Williams‘ denial-of-treatment claims against the City of Philadelphia as well.

       For the foregoing reasons, we affirm the district court‘s order granting summary

judgment in favor of PHS as to Williams‘ denial-of-medical-treatment claim and

dismissal of that claim against the City of Philadelphia, but we reverse the district court‘s

grant of judgment as a matter of law in favor of defendants Fields, Jones, Coates,

Hughes, and Lackey and remand for a new trial.




                                             15