BLD-290                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 16-1511
                                   ___________

                          SHAWN MICHAEL LEDCKE,
                                   Appellant

                                         v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS; LACKAWANNA COUNTY
   PRISON; LACKAWANNA COUNTY PRISON BOARD; JANINE M. DONATE,
   Lackawanna County Prison Warden; ROBERT MCMILLIAN, Lackawanna County
    Prison Warden; JOHN SZYMANSKI, Lackawanna County Sheriff; WALTER J.
 PRITCHYK, JR., Lackawanna County Prison Associate Warden Security; TIMOTHY
  BETTI, Lackawanna County Prison Associate Warden; LACKAWANNA COUNTY
 PRISON DISCIPLINARY HEARING GUARD; JOHN OR JANE DOE #1; JOHN OR
  JANE DOE #2; DOCTOR JOHN DOE #3; NURSE BARB FOX; CORRECTIONAL
     SHERIFF/OFFICERS; CAPTAIN (FNV) CHIAPELLI; LIEUTENANT (FNV)
MCGRAW; LIEUTENANT (FNV) MAVI;SERGEANT (FNV) FANNY; SERGEANT
  CWALINSKI; SERGEANT BILL SHANLEY; SCOTT BLUME; MIKE MALLICK,
         (FNV); TALLUTO, (FNV); (FNV) ROBINSON; SCHNIPES, (FNV)
                     ____________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                          (D.C. Civil No. 1-12-cv-01580)
                   District Judge: Honorable Martin C. Carlson
                   ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 16, 2016

            Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                            (Opinion filed: July 6, 2016)
                                    _________
                                        OPINION*
                                        _________

PER CURIAM

       Pro se appellant Shawn Ledcke appeals from the judgment of the United States

District Court for the Middle District of Pennsylvania entered following a jury trial in his

42 U.S.C. § 1983 action. As the appeal does not present a substantial question, we will

summarily affirm the decision of the District Court.

                                             I.

       This § 1983 action arises from an August 9, 2010 physical confrontation between

Ledcke and various correctional staff at the Lackawanna County Prison, followed by a

period of detention under what Ledcke describes as harsh conditions without adequate

medical care. Ledcke alleges that, on August 9, 2010, at approximately 1:00 P.M.,

“C.E.R.T. members noticed [him] outside his assigned cell . . . and immediately rushed

[him] . . . causing fractured ribs in several locations,” and numerous other injuries. He

claims that various Defendants – primarily Correctional Officers Blume, Schnipes,

Robinson, and Talluto – punched, kicked, and pepper sprayed him, and ultimately hog-

tied him in his cell with a spit hood. He also claims that two medical defendants – Dr.

Zaloga and Nurse Fox – and two supervisory officials at the prison – Captain Chiarelli

and Sergeant Shanley – were present during this altercation but failed to intervene.



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
       Ledcke concedes that, after being released from his restraints, he received medical

treatment in his cell from Nurse Barb Fox – which he contends was limited to sanitizing

his wounds and providing an unspecified shot in his arm. He also claims that a John Doe

doctor Defendant refused his requests to receive x-rays for possible broken bones. 1

Medical records indicate that Ledcke was brought to the medical unit on August 9, 2010

at 1:30 P.M. and treated by Dr. Zaloga, who prescribed Ativan, Tylenol, and antibiotic

ointment. Medical records also reflect fifty-seven separate nursing notes documenting

efforts to treat Ledcke between August 9, 2010 and August 25, 2010, but he declined care

in the majority of these instances.

       Ledcke claims that after receiving treatment on August 9, 2010, he was returned to

his cell and double-cuffed behind his back with “bleeding wounds, no mattress . . . no

sink or toilet water, and another prisoner’s feces and urine smeared throughout the cell.”

Ledcke acknowledges that his restraints were removed about twenty-five hours after the

initial incident, but claims that his continued requests for medical treatment were denied.

On August 11, 2010 he was transferred to another cell and was “granted a shower, a

mattress . . . serviceable bedding and clean clothes.”

       The next day, after he requested to be moved to a behavior watch cell, he claims

that Defendants placed him in a cell that was “clearly smeared and contaminated” with

various bodily fluids. He remained in this cell for six days and was not permitted to


1
 In his deposition, Ledcke acknowledged receiving x-rays at an unspecified time after
being transferred to SCI-Talladega, and indicated that he had no knowledge of the results.
                                              3
shower or otherwise access hygiene products. He was then transferred to another cell

where he acknowledges receiving wound care and various unspecified medications.

       The District Court screened Ledcke’s complaint under 28 U.S.C. § 1915(e)(2), and

on September 12, 2012, it dismissed all of his claims predicated on solely verbal

harassment, in addition to all claims against: (1) the institutional Defendants; (2) the

supervisory Defendants; (3) nurse Barb Fox; and (4) John Syzmanski. 2 On August 26,

2014, the District Court awarded summary judgment in favor of the remaining

Defendants on all remaining claims, but permitted Ledcke to proceed to a jury trial on (1)

his excessive force claims, and (2) his failure to intervene claims against correctional

supervisors who were allegedly present during the August 9, 2010 physical confrontation.

       On February 8, 2016, a jury trial was held before Magistrate Judge Martin

Carlson, and the jury returned a verdict that same day, finding that none of the remaining

Defendants used excessive force against Ledcke. Following the District Court’s entry of

judgment in favor of Defendants, this timely appeal ensued.

                                               II.

        We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s dismissal under § 1915(e)(2), see Allah v. Seiverling, 

,

223 (3d Cir. 2000) (applying Rule 12(b)(6) standard), and ask whether the complaint

contains “sufficient factual matter, accepted as true, to state a claim to relief that is


2
  Syzmanski, a sheriff’s deputy, is alleged only to have made a derogatory comment
toward Ledcke during an interview with FBI agents.
                                               4
plausible on its face.” Ashcroft v. Iqbal, 

, 678 (2009) (internal quotations

omitted). We also exercise plenary review over the District Court’s award of summary

judgment and apply the same test the District Court should have utilized – whether the

record “shows that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Giles v. Kearney, 

, 322 (3d

Cir. 2009). In applying this test, we must accept evidence presented by the non-movant

as true and draw all justifiable factual inferences in his favor. 

summarily

affirm any judgment of the District Court where “it clearly appears that no substantial

question is presented or that subsequent precedent or a change in circumstances warrants

such action.” 3d Cir. I.O.P. 10.6 (2015).

       We detect no error in the District Court’s resolution of Ledcke’s claims and will

affirm for substantially the same reasons as expressed by the District Court. His claims

of verbal harassment fail as a matter of law. McBride v. Deer, 

, 1291 n.3

(10th Cir. 2001) (“[A]cts or omissions resulting in an inmate being subjected to nothing

more than threats and verbal taunts do not violate the Eighth Amendment.”). The District

Court also properly dismissed his claims of supervisory liability because he failed to

demonstrate that any of the supervisory Defendants were actually involved in the alleged

unconstitutional conduct, or that they “established and maintained a policy, practice or




                                             5
custom which directly caused [the] constitutional harm.” Santiago v. Warminster Twp.,

, 129 n.5 (3d Cir. 2010). 3

       As to his medical care claims, we agree with the District Court that the record

“reveals that medical staff attempted to provide ongoing care to Ledcke following this

incident, but were repeatedly rebuffed by Ledcke who chose for his own reasons to

frequently refuse the care and treatment offered to him.” Medical records reflect at least

fifty-seven distinct attempts to treat Ledcke following the initial altercation – the majority

of which he declined. Thus, his claims amount to “[m]ere disagreement as to the proper

course of medical treatment,” which is insufficient to state an Eighth Amendment claim.

Spruill v. Gillis, 

, 235 (3d Cir. 2004) (citing Monmouth County Correctional

Institutional Inmates v. Lanzaro, 

, 346 (3d Cir. 1987)); See also Norris v.

Frame, 

, 1186 (3d Cir. 1978) (“Where the plaintiff has received some care,

inadequacy or impropriety of the care that was given will not support an Eighth

Amendment claim.”). 4

       Ledcke’s conditions of confinement claims are premised on (1) an approximate

24-hour period between August 9, 2010 and August 10, 2010 when he claims he was left

in a filthy cell with no bedding, double-cuffed in the back, and (2) a 6-day period when

3
  We also note that, following the District Court’s dismissal of Ledcke’s supervisory
liability claims, a jury determined that no unconstitutional force was employed against
Ledcke. His claims of supervisory liability would also fail on that basis.
4
  To the extent that he complains about the delay in receiving x-rays, he has offered no
“verif[ied] medical evidence . . . to establish the detrimental effect of [the] delay,” as he
must do to support a delayed treatment claim. Hill v. Dekalb Rg'l Youth Detention Ctr.,

, 1188 (11th Cir. 1994) (overruled on other grounds).
                                              6
he claims he was not permitted to shower or access hygiene products in a cell

contaminated with various bodily fluids. Upon a review of videos depicting these

conditions, the District Court determined them to be “spare [but] in no way shocking or

depriv[ing] Ledcke of the minimal civilized measure of life's necessities.” We agree.

See Johnson v. Pelker, 

, 138-39 (7th Cir. 1989) (no Eighth Amendment

violation where prisoner slept on a “slab of metal” for two and one-half days); Howard v.

Adkison, 

, 137 (8th Cir. 1989) (deprivation of hygiene products implicates

the Eighth Amendment only “over a lengthy course of time”). After our independent

review of the available video evidence depicting Ledcke’s living conditions between

August 9, 2010 and August 18, 2010, we conclude that no evidence exists to support his

claims that he was handcuffed in the back for any extended period of time, or that he was

placed in any cells containing potentially hazardous substances.

       Turning to his excessive force and failure to intervene claims, the jury determined

that none of the Defendants involved in the initial altercation “violated his rights under

the Eighth Amendment by using force against him maliciously, for the purpose of

causing harm.” 5 Because no unconstitutional force was employed against Ledcke, no

liability can exist for failing to intervene in its application. See Smith v. Mensinger, 293


5
  In his argument in support of appeal, Ledcke contends that this finding was “contrary to
the evidence.” But because he has filed no post-verdict motions, and appeals directly
from the judgment entered according to the jury’s verdict, our ability to review the
sufficiency of the evidence is curtailed, and our actions are limited to affirmance or
remand for a new trial upon showing of prejudicial legal error. See Unitherm Food Sys.
v. Swift-Eckrich, Inc., 

, 400-01 (2006). He has alleged no such error.
                                              

, 650 (3d Cir. 2002) (duty to intervene extends only to “constitutional violation

such as an unprovoked beating”).

       Accordingly, we will affirm the judgment of the District Court.




                                            8