Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-2007

Bacon v. Carroll
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3859




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Recommended Citation
"Bacon v. Carroll" (2007). 2007 Decisions. Paper 1181.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1181


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CLD-183                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3859
                                   ________________

                                 DEVEARL L. BACON,
                                             Appellant

                                             v.

      WARDEN CARROLL; DEPUTY WARDEN MCGUIGAN; JOE HUDSON;
          LT. CARROTHERS; LT. LEGATES; LT. BOONE; LT. PROFACI;
      LT. FORBES; SGT. SNEAD; C.M.S; F.C.M; DOCTOR TAMMY KASTRE
                              _____________

                    On Appeal From the United States District Court
                               For the District of Delaware
                               (D.C. Civ. No. 06-cv-00267)
                     District Judge: Honorable Joseph J. Farnan, Jr.
                     _____________________________________

 Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 29, 2007

           BEFORE: RENDELL, SMITH and JORDAN, CIRCUIT JUDGES

                                 (Filed April 30, 2007 )

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Devearl L. Bacon, a state prison proceeding pro se, appeals from the District

Court’s order dismissing his in forma pauperis civil rights complaint filed pursuant to 42
U.S.C. § 1983. Bacon alleged that he injured his back when he slipped and fell on a wet

floor as he was leaving the dining hall at the Delaware Correctional Center. Bacon claims

that the wet spot was caused by water “coming from a[n] outgoing sewage pipe” in the

ceiling. He was taken to the nurse’s office, where he was examined and given Ibuprofen.

The pain persisted, however, and Bacon filed several “sick-call slips” requesting

additional treatment. During this period, Bacon was seen by a physician who stated that

Bacon had swelling in his lower back and a sprain. Approximately nine months after he

fell, an x-ray of Bacon’s back was performed.

       In his compliant, Bacon alleged that prison officials and health care providers

violated his constitutional rights by failing to warn him of the wet floor, to administer

adequate medical treatment, and to provide him with x-rays of his back and photographs

of the hazardous area. By order entered July 28, 2006, the United States District Court

for the District of Delaware dismissed the complaint pursuant to 28 U.S.C

§§ 1915(e)(2)(B) and 1915A(b)(1), because Bacon failed to state a claim upon which

relief may be granted. Bacon appealed. Upon consideration of the record on appeal, we

conclude that the District Court properly dismissed the complaint.1 Therefore, we will

dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).



       1
        A District Court has discretion to decline to exercise supplemental jurisdiction
over state law claims if the court “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. 1367(c)(3). Given that the District Court properly dismissed
Bacon’s claims under federal law, it plainly acted within its discretion in declining to hear
his claims asserted under state law. See Maio v. Aetna, Inc., 

, 480 n.6 (3d
Cir. 2000).

                                              2
       Prison officials must provide humane conditions of confinement by ensuring that

inmates receive adequate food, clothing, shelter, and medical care. See Farmer v.

Brennan, 

, 832 (1994). A prison official violates the Eighth Amendment

when the prison official is deliberately indifferent to inmate health or safety and when this

act or omission results in the denial of “the minimal civilized measure of life’s

necessities.” See 

Therefore, a prison official can be held liable under the

Eighth Amendment for denying humane conditions of confinement if he knows that

inmates face a substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it. See 

Claims of negligence, without a more

culpable state of mind, do not constitute “deliberate indifference.” See Singletary v.

Pennsylvania Dept. Of Corrections, 

, 193 n.2 (3d Cir. 2001). Although a

wet floor may pose a substantial risk, Bacon’s allegations do not reflect the deliberate

indifference required to impose liability under the Eighth Amendment. Because we agree

with the District Court that Bacon’s claim amounts merely to negligence, his allegations

regarding the wet floor are not actionable under § 1983.

       The Eighth Amendment’s prohibition of cruel and unusual punishment requires

prison officials to provide basic medical treatment to inmates. Estelle v. Gamble, 

, 103 (1976); Rouse v. Plantier, 

, 197 (3d Cir. 1999). Because we

can assume for purposes of our analysis that Bacon’s injuries presented an objectively

serious medical condition, we focus upon whether the conduct of the prison health care

providers amounted to deliberate indifference. We have found deliberate indifference


                                              3
where a prison official: 1) knows of a prisoner’s need for medical treatment but

intentionally refuses to provide it; 2) delays necessary medical treatment for non-medical

reasons; or 3) prevents a prisoner from receiving needed or recommended treatment. See

.

       The District Court concluded that Bacon’s allegations concerning the treatment he

received for his injuries did not rise to the level necessary to state an Eighth Amendment

claim. We agree. Bacon’s complaint and the attached exhibits reveal that, after falling on

May 1, 2004, he was taken by wheelchair to the nurse’s office where he was provided

with pain medication. On May 15, 2004, Bacon was examined by a doctor who stated

that he had swelling in his lower back and a sprain. An x-ray of Bacon’s back taken on

February 11, 2005, apparently revealed no abnormalities. Although Bacon would have

preferred a different course of treatment, his preference does not establish a cause of

action. See Inmates of Allegheny Jail v. Pierce, 

, 762 (3d Cir. 1979) (courts

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.”

(citations omitted)). Accordingly, because Bacon has not adequately alleged that the

treatment of his injuries was a result of deliberate indifference, he has failed to state a

claim under the Eighth Amendment.

       Bacon also claimed that the prison officials improperly rejected his requests to

obtain evidence related to his fall, such as the x-rays of his back and photographs of the

hazardous area, which he “depended on for use [at] plaintiff’s trial.” Prisoners have a


                                               4
right of access to the courts. See Lewis v. Casey, 

(1996). Importantly,

however, where an inmate does not allege an actual injury to his ability to litigate a claim,

his constitutional right of access to the courts has not been violated. See 

An actual injury is shown only where a nonfrivolous, arguable claim is lost. See

Christopher v. Harbury, 

, 415 (2002). Bacon has not demonstrated how the

absence of the x-rays and photographs caused an actual injury to his ability to litigate his

claims. Indeed, there is no indication that the x-rays would support Bacon’s claims or

that photographs depicting leaking pipes and water on the floor would demonstrate that

the prison officials were deliberately indifferent.

       Dismissal for failure to state a claim is appropriate when it is impossible for the

plaintiff to prevail on the facts that he or she has alleged, and no amendment will cure the

deficiency. See Grayson v. Mayview State Hosp., 

, 108 (3d Cir. 2002).

Because Bacon cannot prevail on any of his potential claims, even if permitted to amend,

we shall dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).




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