David Serrano v. Superintendent LOUIS FOLINO

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2107
DAVID SERRANO,
Appellant
v.
Superintendent LOUIS FOLINO; THOMAS JACKSON, Deputy Superintendent; MS.
DIANE MANSON, Health Care Administrator; DR. STAN FALOR, SCI Greene
Medical Director; DR. JEFFREY A. BEARD, Secretary of the Department of
Corrections; MS. SHARON BURKS, Chief Grievance Officer; DR. PAUL NOEL,
Regional Medical Director; JOHN DOE I; JOHN DOE II, Correctional Officer;
WARDEN HARRY E. WILSON; LINDA D. HARRIS; ROBERT TRETINIK
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 05-1118)
District Judge: Honorable Gary L. Lancaster
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 27, 2009
Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges
(Opinion filed: July 29, 2009)
OPINION
PER CURIAM
David Serrano, a prisoner incarcerated at SCI-Camp Hill in Camp Hill,

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The parties do not dispute that Serrano exhausted this grievance as to the SCI-Greene1
defendants.
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Pennsylvania, appeals from an order of the United States District Court for the Western
District of Pennsylvania, granting certain defendants’ motions to dismiss and the
remaining defendants’ motions for summary judgment on Serrano’s Eighth Amendment
claim.
Serrano was initially incarcerated at SCI-Greene. According to the complaint,
Serrano suffers from a torn lateral meniscus due to a car accident that occurred prior to
his incarceration. This condition causes knee pain. Serrano alleges that his left knee
buckles frequently, limits his ability to ambulate and often appears swollen and bruised.
He alleges that the examining physician at SCI-Greene, Dr. Stan Falor, determined that he
should receive knee surgery, but then never followed through with his recommendation.
As a result, no knee surgery was ever scheduled. Serrano filed a grievance, No. 92689, in
which he complained that prison officials had improperly withheld necessary medical
care. Defendants contend that, to their knowledge, no medical personnel has ever1
recommended surgery for Serrano. Instead, prison medical staff decided to treat
Serrano’s knee condition with physical therapy and a knee brace with metal rods.
Serrano was eventually transferred to SCI-Fayette and placed in the Long-Term
Segregation Unit (“LTSU”). Prison officials removed the metal rods from Serrano’s knee
brace for security reasons and instead provided him with a plastic brace, which Serrano

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refused to accept. Prison officials assured Serrano that a metal brace would be available
for his use during yard activities, but explained that he would be required to use the
plastic brace while in his cell. Serrano filed several grievances regarding his medical
care, including two addressing the perceived inadequacy of his knee brace, Nos. 108139
and 109268.
On August 25, 2005, Serrano filed a complaint against Jeffrey A. Beard, Secretary
of the Department of Corrections; Louis Folino, Superintendent; Thomas Jackson, Deputy
Superintendent at SCI-Greene; Sharon Burks, Chief Grievance Officer; Dr. Paul Noel;
Dr. Stan Falor; Diana Manson, a Corrections Health Care Administrators (CHCA) at SCI-
Greene; and two unknown correctional officers. Serrano later added Harry E. Wilson,
Superintendent at SCI-Fayette; Linda Harris, Deputy Superintendent at SCI-Fayette;
Diana Manson and Robert Tretinik, a CHCA at SCI-Fayette. Serrano asserted that he was
denied knee surgery for non-medical reasons, namely, cost and security.
Serrano alleged that Beard, Folino, Jackson and Burks had actual knowledge of his
medical condition and failed to prevent the violation of his constitutional rights. Serrano
asserted similar allegations against Wilson and Harris in his supplemental complaint.
Serrano alleged that Dr. Falor lied to him by telling him that he would recommend
surgery and then neglecting to make such a recommendation. Serrano alleged that
unnamed individuals removed from his medical file any documentation regarding Dr.
Falor’s initial recommendation. He asserted that Dr. Noel similarly denied him proper

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medical care and then falsely claimed that no one had ever recommended surgery for
Serrano. Serrano also asserted that Manson and Tretinik, CHCAs at SCI-Fayette, violated
his civil rights by failing to respond to his requests for medical care.
All defendants, except for Wilson, Harris and Tretinik, who were added
subsequently, moved to dismiss the complaint. Serrano opposed dismissal as to Folino,
Beard and Burks on the basis that he had informed each of them about his medical
problems, such that they had actual knowledge of the prison medical staff’s failure to
provide him with adequate medical care. Specifically, Serrano alleged that his then-
attorney wrote to Beard expressly to solicit his attention regarding Serrano’s medical
condition. (See Compl., Ex. V.) Instead of alleging unconstitutional mistreatment by
prison medical officials, the letter sought information so that the attorney could determine
if Serrano had an Eighth Amendment claim. (Id.) The Magistrate Judge thus determined
that Serrano’s claims against the non-medical defendants are barred. The District Court
adopted this recommendation and dismissed the complaint against Burks, Folino and
Beard without discussing leave to amend.
At the close of discovery, the remaining defendants moved for summary judgment.
Wilson, Harris, Manson and Tretinik sought summary judgment on the basis of their
status as non-medical officials who lacked the authority to order or recommend surgery
for Serrano. These defendants maintained that Serrano had not exhausted his grievances
regarding the inadequacy of his knee brace, and therefore, they offered no arguments as to

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We have jurisdiction under 28 U.S.C. § 1291. We review a District Court’s summary2
judgment de novo, applying the same standard as the District Court should have applied
to determine whether summary judgment was appropriate. State Auto Prop. & Cas. Ins.
Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Our review of a District Court’s
order dismissing claims under Fed. R. Civ. P. 12(b)(6) is plenary. Monroe v. Beard, 536
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the merits of that claim.
In opposition to summary judgment, Serrano submitted his medical records, copies
of his grievances and declarations from himself and a fellow inmate. In his declaration,
he stated that Dr. Falor told him he was going to recommend surgery because it was
“needed” to treat “continues [sic] instability and muscle atrophy of the knee.” (Pl.’s
Opp’n Mot. Summ. J., Ex. 11, ¶ 7.) He also contended that Dr. Noel gave him an
inadequate brace that offered no support for his knee, and that the remaining defendants
were aware of his problems, but did nothing to help him. (Id. at ¶ 20.)
The Magistrate Judge recommended granting summary judgment in favor of all
defendants, not on the basis of exhaustion, but on the merits of Serrano’s claims. The
Magistrate Judge determined that Serrano had not demonstrated any factual dispute as to
whether any prison medical official believed that Serrano needed knee surgery. She also
determined that Serrano had refused to accept the knee brace offered to him, and he could
not show that, in offering this knee brace, defendants were deliberately indifferent to his
serious medical needs. The District Court adopted this recommendation, awarded
summary judgment to the remaining defendants and closed the case. Serrano timely
appealed.2

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F.3d 198, 205 (3d Cir. 2008).
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On appeal, Serrano primarily argues that the District Court erred in dismissing his
complaint against non-medical defendants without granting him leave to amend and in
granting summary judgment to the remaining defendants. Serrano asserts that he suffers
from a painful knee condition that limits his ability to ambulate. He asserts that
defendants deprived him of necessary knee surgery and an appropriate knee brace for
non-medical reasons, i.e., to save money and to abide by the security constraints of the
LTSU.
Summary judgment was proper on Serrano’s claims against the medical
defendants. To state a claim under the Eighth Amendment, a prisoner must allege that the
defendants were deliberately indifferent to the plaintiff’s serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 103 (1976). Here, Serrano’s submissions in opposition to
summary judgment do not raise a genuine factual dispute as to the medical defendants’
intent. The record indicates that Serrano received frequent medical attention, including
an MRI, a recommendation that he receive physical therapy, and an assessment by a team
of physicians, including an orthopedic specialist. (Deft’s Mot. Summ. J., Ex. 15.)
Serrano’s claim that knee surgery was improperly withheld rests entirely on his allegation
that Dr. Falor promised to recommend knee surgery and did not do so. The evidence
suggests that Dr. Falor evaluated Serrano, requested his signature so that he could obtain

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The record suggests that Dr. Falor pressed Serrano to provide him with information3
necessary to determine if surgery was indicated. (See Deft’s Mot. Summ. J., Ex. 15,
Entry dated 11/22/04 by Dr. Stan Falor) (indicating, “request again: 1- Release of
Information form 2 - Hospital City and State 3- Insurance company 4 - Claim number”).
However, the record does not indicate whether Serrano ever provided this information to
Dr. Falor.
Serrano raises a number of other arguments, namely, that the District Court erred in4
denying him counsel, not ordering a medical evaluation by an outside physician, denying
his motion to alter or amend the judgment and overlooking parts of his complaint
purportedly alleging excessive force. We have reviewed these claims and determine that
they are unpersuasive.
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past medical records, and ultimately fit Serrano with a brace. Serrano has not identified3
record evidence indicating that anyone recommended surgery to him or denied him
necessary treatment.
Similarly, Serrano’s claim regarding the inadequacy of his knee brace fails because
he has not come forward with evidence to indicate that defendants offered this brace with
disregard for any substantial harm that might befall him. Monmouth County Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Serrano asserts that the plastic
rods rendered the brace unsupportive and inadequate. However, prison officials provided
a metal brace for him during yard activities; the LTSU’s security regulations precluded
them from providing a metal brace for use in his cell. (Deft’s Mot. Summ. J., Ex. 16.)
The record suggests that, whenever possible, and consistent with security regulations,
prison officials provided an adequate brace to Serrano. As a result, Serrano has4
established only that he disagrees with the prison’s choice of knee brace for him, not that
any officials deliberately disregarded a serious medical need.

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Because summary judgment was proper as to Serrano’s claims against the medical
defendants, his claims against the non-medical defendants also fail. As we have
previously held, “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 v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (emphasis added).
While Spruill does not absolutely bar a claim against a non-medical prison official, it
allows such a claim only if the non-medical official has actual knowledge of
unconstitutional treatment and fails to remedy the violation. Absent viable claims that the
medical defendants violated his constitutional rights, Serrano cannot state a claim against
the non-medical defendants for failing to cure the medical defendants’ conduct.
Accordingly, these claims were properly dismissed without leave to amend by the District
Court.
For the foregoing reasons, we will affirm the order of the District Court.

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