NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3051
                                       ___________

                                  JEREMY V. PINSON,
                                               Appellant

                                             v.

       UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS;
    ELIZABETH SANTOS; M. MAGYAR, Assistant Health Services Administrator

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 1-17-cv-00584)
                      District Judge: Honorable Sylvia H. Rambo
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 9, 2020
         Before: SHWARTZ, RESTREPO, and GREENBERG, Circuit Judges

                           (Opinion filed: September 10, 2020)
                                        _________

                                        OPINION*
                                        _________
PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jeremy V. Pinson, a federal prisoner proceeding pro se, appeals from the District

Court’s order granting summary judgment in favor of the defendants. For the following

reasons, we will vacate the grant of summary judgment and remand for further

proceedings.

                                            I.

       A.      Pinson’s Incarceration and Medical Treatment at FCI-Allenwood

       Pinson is a male-to-female transgender inmate who was incarcerated at FCC-

Allenwood for approximately four months in 2016. Upon arrival on March 10, 2016,

Pinson was screened by the Psychology department. The screening notes indicate that

Pinson had been receiving psychological treatment throughout her incarceration and had

been diagnosed with gender dysphoria in June 2015. She had begun using a feminizing

hormone (Estradiol patch) in late December 2015. The screener also noted that Pinson

had a history of suicidal ideation and harming herself. The screener recommended that

she be housed with the general prison population but placed her in the Special Housing

Unit (SHU) pending a final determination.

       Pinson was designated a “care level 3” inmate and attended private sessions with a

psychologist at least once per week.1 Pinson’s medical records from her four months at


1
 “Care Level 3 inmates are outpatients who have complex, and usually chronic, medical
or mental health conditions and who require frequent clinical contacts to maintain control
or stability of their condition, or to prevent hospitalization or complications.” Fed. Bur.
of Prisons Clinical Practice Guidance, Care Level Classification, May 2019.

                                             2
USP-Allenwood exceed 500 pages.2 Physician and Clinical Director E. Stahl (formerly

E. Santos) was generally involved in only the co-management of Pinson’s trans-health,

but she also met with Pinson individually on at least three occasions.3 During a March

17, 2016 meeting with Pinson, Pinson reported that she had begun cutting herself—

including her genitalia—when she was incarcerated at the age of seventeen.

       On April 14, 2016, Pinson was released into the general prison population in order

to participate in the “Challenge Program,” a residential program designed to meet the

treatment needs of high-security inmates with mental-health or substance-abuse

disorders. On May 2, 2016, Pinson reported that another inmate had threatened to “pimp

out” her and her cellmate. She was returned to the SHU pending an investigation into the

allegations under the Prison Rape Elimination Act (PREA).

       Approximately two weeks later, on May 13, 2016, Pinson reported suicidal

thoughts and was placed on suicide watch. She was re-evaluated on May 15, 2016 and

taken off watch. On May 18, 2016, Pinson reported that she was feeling a desire to harm



2
  The psychologists’ notes reflect that Pinson often claimed that she had suicidal thoughts
in order to be seen by the psychologist, but once in the session, she would focus on
obtaining personal property or hygiene items. The notes further reflect that Pinson
threatened to sue staff or harm herself when she was frustrated about not getting what she
wanted.
3
  In addition to overseeing staff as the Clinical Director at the prison, Dr. Stahl also
served as the Chair of the Transgender Clinical Care Team (TCCT), which was
established in November 2014 to provide guidance to BOP staff treating inmates with
transgender concerns.
                                             3
herself and surrendered a razor to her psychologist. The psychologist concluded that

Pinson was not suicidal, but rather was using the threat of self-harm to manipulate

psychology staff into meeting with her so that she could obtain missing personal

property. On May 19, 2016, the SHU lieutenant advised the psychology office that

Pinson was potentially suicidal. Pinson met with a psychologist at that time. She stated

that she was upset because the Warden had told her that she was manipulating staff. The

psychologist concluded that Pinson was at low risk for suicide and that suicide watch was

unnecessary. On May 24, 2016, Pinson asked for an increase in medication and a

prescription for Ativan. She denied having any suicidal ideation or urges to harm herself.

       On May 25, at 12:30 pm, a lieutenant making rounds in the SHU discovered

Pinson cutting her left arm with a razor. Pinson was taken to health services where

doctors determined that she had sustained multiple lacerations to her left arm, left leg,

front and back of the head, scrotum, and tongue. Pinson was transported to a local

hospital for further treatment. She was then placed back on suicide watch.4




4
  On May 27, 2016, Pinson filed an administrative tort claim asserting that the prison
staff negligently gave her a razor, refused to provide her pain medication before and after
her hospitalization, and failed to adequately treat her wounds upon return to the prison.
Claim for Damage, Injury, or Death, ECF No. 52-1, Ex. A.

                                              4
       On June 5, 2016, Pinson submitted an “Informal Resolution Form”5 to her

correctional counselor asking “if the BOP offers sex reassignment surgery to its inmates,

yes or no.” Informal Resolution Form, p. 723, ECF No. 31-1. Assistant Health Services

Administrator (AHSA) M. Magyar responded to Pinson’s inquiry. Magyar explained that

the prison follows community standards for treatment of transgender health, including

those set forth by the World Professional Association for Transgender Health (WPATH). 6

Magyar stated that, according to the WPATH, criteria for sex-reassignment surgery

(SRS) include: (a) well-documented gender dysphoria; (b) capacity to consent to

treatment; (c) age of majority; (d) twelve months of feminizing hormone therapy; and (e)

twelve months of continuous living in the gender role that is congruent with one’s

gender. After reviewing Pinson’s medical records, Magyar concluded that she did not yet

meet the criteria for SRS. Magyar noted that Pinson had been on a feminizing hormone

only since January, and that, as a result of her hospitalization and short stay in general

population, she had not demonstrated twelve months of living in the gender role




5
 Prior to filing a Request for Administrative Remedy Form, prisoners must ordinarily
attempt to informally resolve their complaints through their Correctional Counselors. See
Informal Resolution Form, p. 723, ECF No. 31-1.
6
 Several months after Pinson’s incarceration at FCC-Allenwood, the BOP released
clinical guidelines for treating transgender inmates with gender dysphoria, titled
“Medical Management of Transgender Inmates.”

                                              5
congruent to her gender. Magyar also noted that Pinson’s psychiatric illness was not yet

well controlled.

       Once the Special Investigative Service had completed its investigation into

Pinson’s PREA-related allegations, it was determined that she should be transferred to

another facility. On July 18, 2016, Pinson was transferred to USP Terre Haute.

       B.     Procedural History

       In March 2017, Pinson filed a complaint, which she later amended, in the District

Court pursuant to Bivens7 and the Federal Tort Claims Act (FTCA). Pinson claimed that

AHSA Magyar and Dr. Stahl had violated her Eighth Amendment rights by denying her

request for SRS based on pretext. Pinson also claimed that the United States and the

Bureau of Prisons (BOP) were liable under the FTCA for Correctional Officer Frei’s

failure to collect her razor when the officer was on notice that her gender dysphoria could

lead her to self-mutilate. As relief, Pinson requested one million dollars in damages, an

injunction requiring the BOP to provide Pinson with SRS, and a declaration that the

prison’s medical treatment violated her Eighth Amendment rights.

       Following discovery, the defendants moved for summary judgment on the grounds

that, inter alia: (1) Pinson’s request for injunctive relief was moot because she is no


7
  “A Bivens action, which is the federal equivalent of the § 1983 cause of
action against state actors, will lie where the defendant has violated the plaintiff’s
rights under color of federal law.” Brown v. Philip Morris Inc., 

, 800
(3d Cir. 2001) (discussing Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 

(1971)).
                                              6
longer incarcerated at FCC-Allenwood; (2) AHSA Magyar could not be liable under the

Eighth Amendment because he was not personally involved in Pinson’s medical

treatment; (3) Dr. Stahl was not deliberately indifferent to Pinson’s medical needs, but

rather counseled against SRS because Pinson did not meet the clinical criteria; and (4)

Pinson failed to establish a prima facie case of negligence under the FTCA/Pennsylvania

law because (a) the United States’ actions regarding the razor were reasonable in light of

its obligation to balance Pinson’s safety needs with her medical needs and (b) the United

States’ actions regarding the razor were not a “substantial factor” in bringing about

Pinson’s injuries. Pinson submitted a brief in opposition to the defendants’ motion, a

counterstatement of material facts8 and a declaration contesting a number of facts in the

defendants’ motion. The District Court granted the defendants’ motion for summary

judgment.9

         Pinson moved for reconsideration, arguing that the District Court had erred by

failing to address all the averments in her declaration and by making numerous factual

determinations and credibility findings that should have been left to a jury. She also



8
  The District Court determined that Pinson’s counterstatement of material facts failed to
comply with Local Rule 56.1 insofar as it failed to include any record citations or
references. As a result, the District Court deemed the facts set forth by the defendants to
be undisputed unless otherwise noted. As discussed further below, the District Court
ultimately acknowledged some, but not all, of the facts that Pinson included in her
declaration attached to her counterstatement of material facts.
9
    The District Court also denied Pinson’s pending motion for discovery as moot.
                                              7
argued that the District Court erred by failing to appoint counsel and a medical expert to

assist her. The District Court denied the motion for reconsideration.

       Pinson timely appealed.

                                             II.

       This Court has jurisdiction under 18 U.S.C.§ 1291. We review the grant of

summary judgment de novo, applying the same standard as the District Court. See Blunt

v. Lower Merion Sch. Dist., 

, 265 (3d Cir. 2014). Summary judgment is

proper if, viewing the record in the light most favorable to Pinson, there is no genuine

issue of material fact and the defendants are entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Giles v. Kearney, 

, 322 (3d Cir. 2009). We review the

denial of a motion for reconsideration for an abuse of discretion. Max’s Seafood Café ex

rel. Lou-Ann, Inc. v. Quinteros, 

, 673 (3d Cir. 1999).

                                            III.

       A.     Eighth Amendment

       In order to establish an Eighth Amendment deliberate indifference claim, a

claimant must demonstrate: (1) a serious medical need; and (2) acts or omissions by

prison officials that indicate deliberate indifference to that need. Estelle v. Gamble, 

, 104 (1976). Deliberate indifference has been found “where the prison official

(1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide

it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents

                                             8
a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier,

, 197 (3d Cir. 1999).

       In her amended complaint, Pinson claimed that AHSA Magyar and Dr. Stahl

violated her Eighth Amendment rights by denying her request for SRS. Specifically,

Pinson alleged that Magyar and Stahl denied her request in retaliation for her having filed

a grievance and for political reasons unrelated to her medical needs.10

       The defendants moved for summary judgment on Pinson’s Eighth Amendment

claims on the grounds that: (1) Magyar, a non-medical prison official, could not be liable

under the Eighth Amendment because he was not personally involved in Pinson’s

medical treatment; and (2) the medical records showed that Stahl provided Pinson with

adequate medical care by deciding her request for surgery based on community

standards. The District Court agreed on both counts.

       In granting summary judgment to the defendants, however, the District Court

failed to address Pinson’s evidence that Magyar and Stahl denied her request for non-

medical reasons. Pinson attached to her Counterstatement of Material Facts a declaration


10
   Pinson did not include a retaliation claim in her amended complaint, but attempted to
add one in her brief in opposition to defendants’ summary judgment motion. The District
Court declined to consider the claim on the ground that she was not permitted to amend
her complaint through an opposition brief. We see no error in this ruling. See Shanahan
v. City of Chi., 

, 781 (7th Cir.1996) (stating that a plaintiff “may not amend
his complaint through arguments in his brief in opposition to a motion for summary
judgment”). In any event, the Supreme Court has not recognized a Bivens remedy under
the First Amendment in the prison context. See Bistrian v. Levi, 

, 96 (3d Cir.
2018).
                                             9
averring (under penalty of perjury) that she had a discussion with Magyar and Dr. Stahl

in June 2016 in which “they specifically said [she] was being denied sex reassignment

surgery because [she] had requested it in a request for administrative remedy and also

stated if [she] continued to file on staff [she] would just be transferred and receive no

treatment.” Decl. ¶ 21, ECF No. 47-1. Pinson also alleged that “[b]oth Magyar and Stahl

stated the BOP would never provide sex reassignment surgery but that ‘for political

reasons we will consider it as a policy but never actually follow through’ because ‘FOX

News and Republicans would go crazy.’”

       We conclude that Pinson’s averments were sufficient to withstand the defendants’

summary judgment motion. While Pinson did not provide any additional evidence in

support of her declaration, an affidavit is “about the best that can be expected from [a pro

se prisoner] at the summary judgment phase of the proceedings.” See Brooks v. Kyler,

, 108 n.7 (3d Cir. 2000) (quotation marks and alterations omitted). If, as

Pinson alleged, Magyar and Stahl denied her surgery for these reasons, a jury could

conclude that they violated her Eighth Amendment rights. See Durmer v. O’Carroll, 

, 67-69 (3d Cir. 1993) (reversing in part district court’s judgment on the ground

that genuine issue of material fact existed as to whether physician-in-charge knew that

prisoner should receive physical therapy and deliberately failed to provide it for non-

medical reasons). And, while prison administrators like Magyar generally cannot be

charged with deliberate indifference to a prisoner’s medical needs due to their lack of

                                             10
personal involvement in the medical decisions, see Spruill v. Gillis, 

, 236

(3d Cir. 2004), in this case Pinson averred that Magyar himself told Pinson that he denied

the request for non-medical reasons. See Rode v. Dellarciprete, 

, 1207 (3d

Cir. 1988).

       B.     FTCA Claim

       The FTCA “provides a mechanism for bringing a state law tort action against the

federal government in federal court.” In re Orthopedic Bone Screw Prod. Liab. Litig.,

, 362 (3d Cir. 2001). The “extent of the United States’ liability under the

FTCA is generally determined by reference to state law.”

In this case, because the allegedly tortious conduct occurred in Pennsylvania, the Court

refers to Pennsylvania tort law to assess Pinson’s negligence claim. Under Pennsylvania

law, in order to establish a cause of action for negligence, the plaintiff must prove the

following elements: (1) a duty or obligation recognized by law; (2) a breach of that duty;

(3) a causal connection between the conduct and the resulting injury; and (4) actual

damages.” Nw. Mut. Life Ins. Co. v. Babayan, 

, 139 (3d Cir. 2005).

       Pinson claimed that one of the correctional officers at the prison, Officer Frei, was

negligent for leaving a razor with her while aware that her gender dysphoria might lead

her to harm herself. In their motion for summary judgment, the defendants argued that

Pinson failed to establish a negligence claim because extensive efforts were used to

monitor Pinson’s psychological state and Pinson was not on razor restrictions or suicide

                                             11
watch on May 25, 2016. The defendants noted that during the days leading up to the

incident, Pinson was not on any razor restrictions because there was no clinical indication

of a risk of self-harm or suicide. The defendants argued that Officer Frei could not have

left a razor with Pinson before the incident because he did not work on May 24 and did

not arrive at the prison until after the incident on May 25.11 Officer Frei stated in his

affidavit that Pinson never told him that she wanted to cut out her testicles, and that he

never told her that he did not care if she did.

       In her declaration, Pinson averred that she was given a razor every day because

Dr. Stahl had instructed staff that she should be permitted to shave daily. She stated that

Officer Frei gave her a razor on May 24, 2016, and that she refused to give it back

because she was suicidal and felt like hurting herself. According to Pinson, Officer Frei

did not try to recover the razor—instead, he told her that “he did not care if [she] hurt

herself because he would go home at the end of his shift regardless.” Decl. ¶¶ 27-28,

ECF No. 47-1. Pinson further averred that she had advised her psychologists that she

was suicidal several times before the May 25, 2016 incident—on April 21 and 25, and on

May 2, 9, 15, 17, 18, 19, and 24.

For these reasons, Pinson

claimed that Officer Frei was negligent for allowing her to keep her razor.




11
  The defendants also noted that while Pinson now alleges that she obtained the razor on
May 24, 2016, she stated in her administrative tort claim that she obtained it on May 25,
2016.
                                              12
       The District Court recognized that the parties disputed the date on which Pinson

received the razor and who gave it to her, but concluded that either way, there was no

reason for the SHU staff to preclude Pinson from having a razor because she was not on

razor restrictions or suicide watch. Therefore, the District Court granted summary

judgment in the defendants’ favor.

       We conclude that the District Court erred by improperly weighing the evidence

and discrediting Pinson’s declaration. See Marino v. Indus. Crating Co., 

,

247 (3d Cir. 2004) (“[I]n considering a motion for summary judgment, a district court

may not make credibility determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence is to be believed[,] and all justifiable inferences

are to be drawn in his favor.” (internal quotations omitted)). At the summary judgment

stage, Pinson’s sworn testimony, standing alone, was sufficient to establish genuine

issues of material fact as to whether the United States acted negligently in allowing, or

failing to prevent, Pinson from having access to a razor on May 25, 2016.12 See Paladino




12
   The District Court further concluded that to the extent that Pinson claimed that Officer
Frei was negligent for failing to collect the razor, such claim was unexhausted because, in
her administrative tort claim regarding the incident, she claimed only that a staff member
was negligent for providing her with a razor. See 28 U.S.C. § 2675(a) (providing that an
action may not be instituted against the United States under the FTCA unless the claimant
first presented the claim to the appropriate federal agency and the claim was finally
denied by the agency). We think these allegations are sufficiently related to deem the
claim exhausted.
                                             13
v. Newsome, 

, 209-10 (3d Cir. 2018) (concluding that inmate’s sworn

deposition testimony, even though self-serving, created a genuine issue of material fact).

                                            III.

       Accordingly, we will vacate the grant of summary judgment and the denial of the

motion for reconsideration and remand for further proceedings consistent with this

opinion.




                                            14