Filed: Sep. 30, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-30-2004 Ali v. Terhune Precedential or Non-Precedential: Non-Precedential Docket No. 04-1308 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Ali v. Terhune" (2004). 2004 Decisions. Paper 296. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/296 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-30-2004 Ali v. Terhune Precedential or Non-Precedential: Non-Precedential Docket No. 04-1308 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Ali v. Terhune" (2004). 2004 Decisions. Paper 296. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/296 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-30-2004
Ali v. Terhune
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1308
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Ali v. Terhune" (2004). 2004 Decisions. Paper 296.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/296
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1308
AMIR ABDUL-KARIM ALI,
Appellant
v.
JACK TERHUNE, Commissioner,
New Jersey Department of Corrections,
Individually and in his official capacity;
JAMES F. BARBO,
Superintendent of Northern State Prison,
Individually and in his official capacity;
STEVEN PINCHAK,
Superintendent of East Jersey State Prison,
Individually and in his official capacity;
TREVOR PARKS, Senior CMS Physician,
Northern State Prison and East Jersey State Prison,
Individually and in his official capacity;
ROBERT DALSEY, Orthopedics, Cooper M edical Center,
Individually and in his official capacity;
JESSIE ROJAS, Assistant Ombudsman,
Northern State Prison,
Individually and in her official capacity;
MARY KEATING-DISABATO, Senior Parole Administrator,
New Jersey State Parole Board,
Individually and in her official capacity;
ANDREW CONSOVOY, Senior Parole Administrator,
New Jersey State Parole Board,
Individually and in his official capacity;
BARBARA P. MCCALL, Registered Nurse,
Northern State Prison,
Individually and in her official capacity;
MICHELLE R. RICCI, Assistant Administrator,
Northern State Prison,
Individually and in her official capacity;
SCO GREGORY, Hospital Officer (2nd shift)
Northern State Prison,
Individually and in his official capacity;
BARRY HAWLK, CMS Administrator,
Northern State Prison,
Individually and in his official capacity;
RICHARD,
Individually and in his official capacity;
KAREN VANSELOUS, Senior Classification Officer,
Northern State Prison,
Individually and in her official capacity
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 99-cv-03733
District Judge: The Honorable John W. Bissell
Submitted Pursuant to LAR 34.1
September 30, 2004
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Filed: September 30, 2004)
OPINION OF THE COURT
SMITH, Circuit Judge.
Amir Abdul-Karim Ali filed a § 1983 claim against numerous individuals alleging
that they were deliberately indifferent during his incarceration to the serious medical
2
needs presented by his shoulder impairment. The District Court dismissed Ali’s claim
against Dr. Dalsey, a consulting physician, and subsequently granted summary judgment
for the remaining individuals, concluding that Ali had failed to establish deliberate
indifference. Ali asserts that the District Court erred. We disagree and will affirm the
District Court.
I.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. Appellate
jurisdiction exists under 28 U.S.C. § 1291. We exercise plenary review over an order
granting a motion to dismiss. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004). We also
“exercise plenary review over the District Court’s grant of summary judgment . . . and we
apply the same standard that the District Court should have applied.” Abramson v.
William Paterson College of New Jersey,
260 F.3d 265, 276 (3d Cir. 2001).
II.
Ali was initially diagnosed with chondrosarcoma in his right shoulder while in the
Navy in 1981. Surgical resection with an allograft was performed at a naval hospital
upon his return to the United States. In 1987, Ali was convicted and incarcerated in New
Jersey’s Northern State Prison. In February 1994, Dr. Dalsey, an orthopedic surgeon,
evaluated the status of Ali’s shoulder and discussed with him two surgical treatment
options. Ali chose to defer treatment. In December 1995, Ali returned to Dr. Dalsey,
who again recommended reconstructive surgery of the right shoulder joint.
3
Approximately six months later, in June 1996, a memorandum prepared by Dr. Saclolo to
prison administrator James Barbo indicated that Dr. Saclolo had spoken with Dr. Dalsey
by telephone and that Dr. Dalsey had suggested that a second opinion be obtained from an
orthopedist.
In October 1996, Dr. Parks, a medical director with Correctional Medical Services
which provided medical care to New Jersey’s correctional facilities, was transferred to the
northern part of New Jersey. In his new position, Dr. Parks was responsible for
overseeing Northern State Prison’s medical care and for providing direct patient care. He
reviewed Ali’s medical records in November 1996 and requested an orthopedic consult.
In January 1997, Dr. DiBiase with the Trenton Orthopedic Group evaluated Ali and
recommended that Ali should be seen by Dr. Dalsey. Consistent with this
recommendation, Dr. Parks referred Ali back to Dr. Dalsey. The next month, Ali was
mistakenly referred back to Dr. DeBiase, who reiterated that Dr. Dalsey should be
consulted.
In November 1997, an x-ray of Ali’s right shoulder “demonstrate[d] no change
compared to a prior examination” from November 1992. On November 13, Ali was
evaluated by Dr. Ahmed, who recommended referral “to [a] cancer specialist” on a yearly
basis, or more frequently if pain was constant. A CAT scan of Ali’s right shoulder in
February 1998 revealed that there was “[n]o definite evidence of fracture or destructive
pathology.” After consulting Dr. Cornfield, an oncologist, and considering the results of
4
the CAT scan, which were negative for “any new bony pathology that would support
reoccurrence of the sarcoma,” Dr. Parks decided to refer Ali back to Dr. Dalsey, noting
that Ali’s current “problem [was] most likely mechanical.”
Dr. Dalsey evaluated Ali’s status again on May 1, 1998, recommended resection
arthroplasty and hardware removal, and discussed an alternative humeral head
replacement procedure. Ali was undecided and wanted to “give this further thought.” Dr.
Dalsey planned to “check on [Ali] in six months’ time.”
Three days later, Dr. Parks acknowledged Dr. Dalsey’s consult and documented
the “need” to schedule surgery. Ali was concerned about the surgery and expressed his
belief to a nurse that the procedure “might not be appropriate.” Subsequently, Ali asked
for a second opinion. During a visit with Dr. Parks on July 2, Ali indicated that he was
“not comfortable with Dr. Dalsey” because he had received conflicting opinions as to the
recommended surgery. Ali repeated his request for a second opinion, and stated that he
would “not undergo surgery with Dr. Dalsey.”
Consistent with Ali’s request, in December 1998 Dr. Parks referred Ali to the
University of M edicine and Dentistry of New Jersey (UMDNJ). The following month, in
January 1999, a chart check failed to confirm whether the consultation at UMDNJ was in
fact ordered. Although the consultation was rescheduled, it was erroneously made with
Saint Francis Medical Center. A rescheduled consultation at UMDNJ occurred on July 1,
1999, with Dr. Benevenia. He documented that Ali had a “failed allograft,” ordered
5
additional diagnostic testing, and directed that Ali return in September 1999 for further
evaluation. During a return visit in November, Dr. Benevenia ordered additional
bloodwork to rule out an infection and noted the possibility that reconstructive surgery
might be performed. In January 2000, Dr. Benevenia recommended that Ali consult him
for reconstructive surgery after his release from prison. Although Ali has been released
from prison, he has yet to undergo reconstructive surgery.
Ali subsequently filed this civil rights action against Dr. Dalsey and numerous
individuals employed by or affiliated with the Department of Corrections, claiming that
they failed to provide the necessary medical attention and treatment to his shoulder
impairment while he was incarcerated from July 1, 1987 through M arch 13, 2000. Ali
alleged that the “medical staff constantly scheduled [him] to see doctors that they knew
could not treat him. The medical staff also chose simply to administer generic pain
relievers, rather than send Mr. Ali for a surgical procedure to deal with the cancerous and
progressively degenerative condition that they observed in [his] shoulder.”
Dr. Dalsey filed a motion to dismiss in early 2000, which the District Court
granted. Summary judgment motions were filed by the remaining administrative and
medical defendants. The District Court granted both motions. Ali appealed with respect
to only Dr. Parks, Nurse Barbara McCall, Administrator Barry Hawlk,1 Dr. Dalsey, Jack
1
Ali’s “Concise Summary of the Case” filed with this Court designates Hawlk, together
with Dr. Parks and Nurse McCall as the “Medical Defendants” and contends that they
“failed to provide Ali with realistic choices for the care of his shoulder.” Ali’s brief,
however, did not address Hawlk’s alleged liability. His claim against Hawlk is therefore
6
Terhune, Commissioner of New Jersey’s Department of Corrections, James Barbo, the
superintendent at Northern State Prison, and Steven Pinchak, the superintendent of East
Jersey State Prison.
III.
In Estelle v. Gamble, the Supreme Court recognized that the government has an
“obligation to provide medical care for those whom it is punishing by incarceration” and
declared that “deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” 429
U.S. 97, 103, 104 (1977) (citations and internal quotation marks omitted). The Court
acknowledged that deliberate indifference may be manifested by “intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once
prescribed.”
Id. at 104-05; see also Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999)
(reiterating that deliberate indifference may be demonstrated by denying, delaying or
preventing a prisoner from receiving needed or recommended medical treatment). Estelle
instructed, however, that negligence does not violate the Eighth Amendment.
Id. at 106.
Thus, matters relating to the exercise of professional judgment that may constitute
medical malpractice are not violative of the Eighth Amendment proscription.
Id. at 107;
Farmer v. Brennan,
511 U.S. 825, 835 (1994) (reiterating Estelle’s distinction between
waived and need not be addressed further. See Reform Party of Allegheny County v.
Allegheny County Dep’t of Elections,
174 F.3d 305, 316 n.11 (3d Cir. 1999); Laborers’
Int’l Union v. Foster Wheeler Corp.,
26 F.3d 375, 398 (3d Cir. 1994).
7
deliberate indifference to serious medical needs and “mere negligence”); Durmer v.
O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (acknowledging that a deliberate indifference
claim requires that a prisoner demonstrate “more than negligence”).
In Farmer v. Brennan, the Supreme Court explained that the term “deliberate
indifference” lies “somewhere between the poles of negligence at one end and purpose or
knowledge at the other.” 511 U.S. at 836. The Court instructed that
a prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.
511 U.S. at 837. Thus, there is both an objective and a subjective component to a
deliberate indifference claim. Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002).
Here, we are concerned with the objective component of whether Ali was deprived of the
necessary medical care.
IV.
Ali contends that the District Court erred in granting summary judgment for Dr.
Parks because the medical records demonstrated that he waited for several years for a
second opinion on alternative shoulder surgeries. This delay, according to Ali, was
sufficient for his case to survive summary judgment.
Our review of the medical records establishes that Dr. Parks reviewed Ali’s status
shortly after being assigned to the Northern State Prison, made arrangements for an
8
orthopedic consultation and regularly approved the requests for medical care made by
other practitioners. After consideration of additional diagnostic tests, he and a consulting
oncologist concluded that Ali’s condition did not present any new bony pathology or a
reoccurrence of chondrosarcoma. As a result, Dr. Parks determined that Ali’s condition
was “most likely mechanical” and, consistent with Dr. Debiase’s recommendation,
referred Ali back to Dr. Dalsey in May 1998. Although Dr. Parks was willing to schedule
Ali for surgery, Ali balked. Despite Ali’s decision not to proceed, Dr. Parks approved a
request for a second opinion and followed the recommendations of Dr. Benevenia. We
agree with the District Court’s conclusion that this evidence does not establish that Dr.
Parks was deliberately indifferent to Ali’s medical needs.
We acknowledge that in Durmer v. O’Carroll, 991 F.2d at 68, this Court
concluded that an inmate had a viable deliberate indifference claim against the prison
physician where the inmate, who had suffered a stroke, had been denied physical therapy
during the 18 month period that followed while he was referred from one consultant to
another. Durmer, however, is not controlling with respect to Ali’s claim against Dr.
Parks, for two reasons. Unlike the physical therapy in Durmer, the surgical procedure at
issue here, to be effective, did not have to be performed within a specific window of time.
The notes of Dr. Dalsey and Dr. Benevenia confirm that there was no urgency. Dr.
Dalsey recommended follow-up in six months and Dr. Benevenia recommended that
surgery be delayed until Ali was released from prison. Thus, the delay resulting from
9
consulting other physicians was not tantamount to a denial of medical care. Second, the
delay was not occasioned by Dr. Parks inasmuch as he was ready to schedule Ali’s
surgery in May 1998. Instead, Ali chose to defer treatment.
We also recognize that Ali’s medical expert, Dr. Smith, opined that Ali’s condition
required follow-up “every one to two months.” That opinion, however, contrasts sharply
with that of Dr. Dalsey who documented that he did not need to see Ali for another six
months. As Estelle and its progeny make clear, disagreement in a matter of professional
judgment, such as the frequency of follow-up visits, does not support a claim of deliberate
indifference.
V.
Ali’s amended complaint averred that Nurse McCall “habitually failed to ensure
orders were made for Mr. Ali’s required and prescribed medication.” Ali pointed the
District Court to two specific instances when he did not receive the medication he claims
he needed as evidence of Nurse McCall’s deliberate indifference. The District Court
granted summary judgment for Nurse McCall, pointing out that she was not involved in
either incident. Ali contends the District Court erred, but relies on the same two instances
as evidence that McCall was deliberately indifferent to his need for medication.
We have reviewed the record carefully and Ali has failed to come forward with
admissible evidence of any involvement of Nurse McCall in either instance, instead
offering inadmissible hearsay. As Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
10
1988), makes clear, a “defendant in a civil rights action must have personal involvement
in the alleged wrongs.” Accordingly, in the absence of McCall’s personal involvement,
we conclude that the District Court appropriately granted summary judgment in her favor.
VI.
Ali’s amended complaint alleged that Dr. Dalsey “was a Physician at Cooper
Medical Center” and that he “was unable to and/or refused to provide proper medical
treatment to Mr. Ali during his visits.” The District Court granted Dr. Dalsey’s motion to
dismiss Ali’s claim, but failed to state its rationale.
Ali now surmises that the District Court dismissed Dr. Dalsey on the basis that he
was not a state actor and argues that the Court erred by dismissing his claim. In Ali’s
view, the District Court should have allowed Dr. Dalsey’s relationship with the state to be
developed during discovery. Dr. Dalsey argues that he was not a state actor, but the
record before us is insufficient to allow us to resolve this issue.
Nevertheless, an “appellate court may affirm a result reached by the District Court
on different reasons, as long as the record supports the judgment.” Guthrie v. Lady Jane
Collieries, Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983); see also Helvering v. Gowran,
302 U.S. 238, 245 (1937) (“In the review of judicial proceedings the rule is settled that, if
the decision below is correct, it must be affirmed, although the lower court relied upon a
wrong ground or gave a wrong reason.”). Here, the evidence demonstrates that, even if
11
Dr. Dalsey was a state actor, he was not deliberately indifferent to Ali’s medical needs.
On at least three occasions Dr. Dalsey recommended surgical intervention and each time
Ali chose to defer such treatment. Accordingly, Ali cannot establish that Dr. Dalsey
denied, delayed or interfered with Ali’s medical treatment.
VII.
Ali also pursued claims against Terhune, Barbo and Pinchak (“State Defendants”),
alleging that they were personally liable because they failed to respond to Ali’s requests
for assistance in obtaining medical attention. The District Court concluded that Durmer,
991 F.2d at 69, was controlling and rejected Ali’s argument. We agree. There, we
concluded that the prison warden and the State Commissioner for Corrections were not
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.”
Id. As we
recently explained in Spruill v.
Gillis, 372 F.3d at 236, “[i]f a prisoner is under the care of
medical experts . . . a non-medical prison official will generally be justified in believing
that the prisoner is in capable hands.”
Spruill, 372 F.3d at 236 (discussing
Durmer, 991
F.2d at 69). We concluded that “absent a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical
prison official . . . will not be chargeable with the Eighth Amendment scienter
requirement of deliberate indifference.”
Spruill, 372 F.3d at 236. Here, the record is
devoid of any evidence to suggest that these administrators had a reason to believe that
12
the prison doctors were either mistreating or not treating Ali. Indeed, as we have
concluded, Dr. Parks was attending to Ali’s medical needs.
For the reasons set forth above, we will affirm the District Court’s order and
judgments.
