Filed: Feb. 03, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-3-2009 Johnson v. Rush Precedential or Non-Precedential: Non-Precedential Docket No. 07-4243 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Johnson v. Rush" (2009). 2009 Decisions. Paper 1940. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1940 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-3-2009 Johnson v. Rush Precedential or Non-Precedential: Non-Precedential Docket No. 07-4243 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Johnson v. Rush" (2009). 2009 Decisions. Paper 1940. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1940 This decision is brought to you for free and open access by the Opinions of the United St..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-3-2009
Johnson v. Rush
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4243
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Johnson v. Rush" (2009). 2009 Decisions. Paper 1940.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1940
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
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4243
___________
MEL JOHNSON,
Appellant
v.
JOSEPH RUSH, P.A.;
MARVA CERULLO, CHCA;
SHARON BURKS, Chief Grievance Officer
_______________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-00627)
District Judge: Honorable Yvette Kane
_______________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 28, 2009
Before: RENDELL, FUENTES and NYGAARD, Circuit Judges
(Filed: February 3, 2009)
___________
OPINION OF THE COURT
___________
PER CURIAM
Mel Johnson, a pro se prisoner currently incarcerated at SCI-Mahanoy in
Frackville, Pennsylvania, appeals from an order of the United States District Court for the
Middle District of Pennsylvania, dismissing his complaint under 42 U.S.C. § 1983 against
Joseph Rush, a physician’s assistant (“P.A.”) at the prison, Maria J. Cerullo, Rush’s
supervisor, and Sharon M. Burks, the grievance officer.
Johnson alleges that defendants subjected him to cruel and unusual punishment
when Rush allegedly performed a painful rectal examination on Johnson, and Burks
denied Johnson’s grievance in which he alleged sexual abuse by Rush. In particular,
Johnson alleges that he attended sick-call on April 25, 2005, to receive follow-up
treatment for hemorrhoids. Defendant Rush was the P.A. on duty that day. Rush asked
Johnson what ailed him, and Johnson explained his condition. Rush then “insisted” on
performing a rectal exam, allegedly using substantial force. The complaint alleges that
Johnson asked Rush why he was hurting him, and Rush smirked. Johnson alleges that he
felt paralyzed for about a minute. After Johnson filed a grievance against Rush, Rush
allegedly retaliated against Johnson by manipulating the schedule so that he would be the
only P.A. on duty whenever Johnson signed up for sick-call.1 Johnson attempted to see
medical personnel on two occasions while his grievance against Rush was pending. On
both occasions, Rush was the P.A. on duty, and Johnson refused to see him. Rush
instructed Johnson to leave the sick-call area. Cerullo, Rush’s supervisor, did nothing
when informed of Rush’s allegedly improper conduct, and Burks denied Rush’s grievance
1
These allegations are contained in Johnson’s prison grievances, which were attached
to Johnson’s complaint. Pursuant to Fed. R. Civ. P. 10(c), allegations contained in
documents attached to his complaint are part of the complaint.
2
relating to the incident. The District Court dismissed Cerullo and Burks pursuant to 28
U.S.C. § 1915(e)(2)(B), but permitted the case to proceed against Rush. Rush
subsequently filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), and the District
Court granted the motion. The District Court neither granted leave to amend nor
explained why amendment would be futile. Johnson appealed.
We have jurisdiction under 28 U.S.C. § 1291. The District Court properly
dismissed Cerullo and Burks. Section 1983 does not permit respondeat superior liability,
and each defendant must be personally involved in the constitutional violations alleged.
Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Accordingly, defendant
Cerullo cannot be held liable merely as Rush’s supervisor. Burks was also properly
dismissed. An inmate has no constitutional right to a grievance procedure, and Burks’ act
of denying Johnson’s grievance as untimely did not infringe Johnson’s right to petition
the government for redress. See Flick v. Alba,
932 F.2d 728, 729 (8th Cir. 1991).
We disagree, however, with the District Court’s dismissal of Johnson’s claim
against Rush without leave to amend. Johnson alleges that Rush applied significant force
in performing a rectal exam, and that Johnson had a smirk on his face after Johnson
complained of the pain. Johnson’s fear of encountering Rush at sick-call deterred him
from seeking further treatment, thus allegedly leading to a denial of medical care. The
Eighth Amendment proscribes the “unnecessary and wanton infliction of pain.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976). To plead a violation of the Eighth Amendment, a
3
prisoner must allege that prison officials acted with deliberate indifference to a
“substantial risk of serious harm to an inmate.” Farmer v. Brennan, 511 U.S. 825, 828
(1994). To be liable, prison officials must know of and disregard an excessive risk to the
inmate’s health or safety.
Id. at 837.
Before dismissing a prisoner’s civil rights action for failure to state a claim, the
District Court must grant the prisoner leave to amend, or explain why amendment would
be futile. See Phillips v. Allegheny County, 515 F.3d 224, 245-46 (3d Cir. 2008). The
District Court concluded that Johnson had no basis for disputing the propriety of the exam
in light of his condition, and that, therefore, he was neither denied adequate medical care
nor subjected to an improper medical exam. However, the District Court overlooked the
possibility of a prison medical official administering an appropriate exam in an
inappropriate manner. Construing the complaint liberally, Johnson alleges that Rush –
wearing a smirk – knowingly inflicted pain on him during a medical exam, and in
essence, committed an act of sexual abuse. Johnson might have amended his complaint
to plead additional facts regarding Rush’s intent, such as their prior dealings. Therefore,
we conclude that the District Court erred in failing to advise Johnson of his right to
amend his complaint because amendment was not necessarily futile.
Phillips, 515 F.3d at
4
246.2 3
For the foregoing reasons, we will affirm the District Court’s dismissal of
Johnson’s claims against Cerullo and Burks, vacate the dismissal of Johnson’s Eighth
Amendment claim against Rush, and remand for further proceedings consistent with this
opinion.
2
Neither Rush nor the District Court addressed Johnson’s allegations that Rush
retaliated against him for filing a grievance regarding the rectal exam. However, we do
not reach the issue of whether Johnson’s complaint states a claim for retaliation because
Johnson failed to raise this issue on appeal.
3
Judge Fuentes would conclude that any further amendment to the complaint in this
case would prove futile and that, therefore, the District Court did not abuse its discretion
in dismissing the complaint.
5
