William F. Davis, Iii v. RAPHAEL WILLIAMS, Warden

BLD-015 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2602
___________
WILLIAM F. DAVIS, III,
Appellant
v.
RAPHAEL WILLIAMS, Warden; FIRST CORRECTIONAL MEDICAL;
DR. BOSTON; BRIAN CASEY; CORRECTIONAL OFFICER DAVIES;
CAPTAIN EMMIT; CORRECTIONAL OFFICER REGINALD MAYES;
DEBRA MUSCARELLA; NURSE JEREMEY; OFFICER FRED WAY
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 05-cv-00067)
District Judge: Honorable Sue L. Robinson
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Possible
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 16, 2009
Before: MCKEE, RENDELL AND CHAGARES, Circuit Judges
(Opinion filed: December 8, 2009)
_________
OPINION
_________
PER CURIAM.
William F. Davis, III, a Delaware inmate, appeals from the District Court’s final
judgment in this pro se action under 42 U.S.C. § 1983. For the reasons that follow, we

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will summarily affirm.
I.
Davis filed this suit in the United States District Court for the District of Delaware
asserting violations of his Eighth Amendment rights while incarcerated on the mental
health tier, or “1D Pod,” at the Howard R. Young Correctional Institution (“HRYCI”). In
May 2004, an inmate on the same unit, Brian Casey, pushed or shoved Davis in the face
on two occasions during basketball games played with numerous other inmates in the
yard. Davis asserts that two Corrections Officers witnessed these incidents but failed to
report them and took no action against Casey. Davis alleges that he had on several
occasions told defendant Deborah Muscarella, his counselor on the mental health tier, that
Casey had been falsely calling Davis a “child molester.” On May 31, 2004, about two
weeks after the basketball shoving incidents, Casey and Davis were in the dining hall
waiting in the breakfast line for second servings. Casey tried to get ahead of Davis in line
and once again called Davis a child molester. After the two argued, Davis turned away, at
which time Casey punched Davis in the face, fracturing his jaw. In this suit, Davis claims
that certain of the named defendants failed to protect him from Casey’s assault, and that
certain defendants were indifferent to his medical needs by delaying treatment for his
broken jaw.
The District Court granted a motion to dismiss filed by defendant First
Correctional Medical (“FCM”), explaining that Davis never mentions FCM in his

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The names of defendants Emig and Mays are misspelled in the case caption as1
“Emmit” and “Mayes.”
Nurse Jeremy’s name is misspelled in the case caption as “Jeremey.” The docket2
also reflects that the United States Marshal’s service of process on Jeremy was returned
unexecuted because Jeremy no longer worked at HRYCI.
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complaint or amended complaint, and that there is no allegation even suggesting that
FCM violated Davis’s rights. The District Court also dismissed defendants Dr. Boston
and Brian Casey (the alleged inmate assailant) because Davis failed to respond to an order
to show cause as to why these defendants should not be dismissed for failure to provide
information to allow timely service of process.
Defendants Williams, Davies, Emig, and Mays filed a motion for summary1
judgment, in which defendant Way joined. The District Court entered summary judgment
in favor of these defendants, holding as follows: (i) claims against these prison officials
in their official capacities are barred by Eleventh Amendment immunity; (ii) Warden
Williams was not personally involved in the alleged wrongs and cannot be held liable
under § 1983 on a theory of respondeat superior; (iii) Davies and Mays, the Corrections
Officers who allegedly witnessed the basketball shoving incidents in the yard, cannot be
said to have known of or disregarded an excessive risk to Davis’s safety; (iv) Davis fails
to show that any defendant, including Nurse Jeremy and Corrections Officer Way, acted2
with deliberate indifference based on the eleven-day gap between the date of injury and
the date surgery was performed to repair his broken jaw; and (v) the claim against Emig, a
Captain/Facility Investigator charged with investigating serious incidents at HRYCI, for

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We have fully considered Davis’s “Informal Brief” in reaching this disposition.3
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allegedly failing to ask the Attorney General to prosecute Casey fails given the absence of
a duty to seek prosecution of an inmate who injures a fellow inmate. The District Court
granted Davis’s motion for leave to file an amended complaint against the lone remaining
defendant, Muscarella.
Rather than amend, Davis moved for summary judgment on his failure to protect
claim. Muscarella also moved for summary judgment. The District Court granted
Muscarella’s motion, concluding that her alleged failure to protect Davis amounts, at
most, to negligence, not a deliberate indifference to a serious risk to Davis’s safety.
Davis timely filed this appeal.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of
the District Court’s orders entering summary judgment. See Fed. Home Loan Mortgage
Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). We view the underlying
facts, and all reasonable inferences therefrom, in a light most favorable to the
non-movant. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir. 2005). After a careful review
of the record, we will summarily affirm the District Court’s judgment in accordance with
Third Circuit Internal Operating Procedure Chapter 10.6.3
III.
a. Failure-to-protect claim

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As the District Court fully explained, “[a] prison official’s deliberate indifference
to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”
Farmer v. Brennan, 511 U.S. 825, 828 (1994). “Deliberate indifference can be shown
when a prison official knows of and disregards an excessive risk to inmate health or
safety.” Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997) (quotation marks omitted).
“[T]o survive summary judgment on an Eighth Amendment claim asserted under 42
U.S.C. § 1983, a plaintiff is required to produce sufficient evidence of (1) a substantial
risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3)
causation.” Id. at 746.
Davis failed to produce sufficient evidence to survive summary judgment on his
claims that Mays, Davies, and Muscarella acted with deliberate indifference to his safety.
Davis alleges that Mays supervised the first basketball game in which Casey shoved
Davis’s face, and that Davies supervised the second game. Davis’s claims against these
two defendants are based on their having witnessed the alleged shoving incidents. Davis
concedes that both basketball games were aggressively played by all involved, and Davis
himself considered the pushing incident in the first game to be inconsequential. Davis
suffered no injury in either incident, and, clearly, any alleged fear of harm from Casey
was not such that it prevented Davis from voluntarily participating in basketball games
with Casey. There is no evidence that Casey called Davis a child molester during either
game, and no evidence that Mays or Davies knew prior to the basketball games that Casey

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Although Davis asserted at deposition that Mays was aware that Casey had been4
calling Davis a child molester, Davis could not recall when he told Mays, and there is no
evidence of record that he told Mays prior to the first basketball shoving incident.
Davis contends that he suffers from learning disabilities, depression, and bipolar5
disorder, but he testified that he was taking medication for his mental heath issues at the
time of the incidents at issue in this case.
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had called Davis a child molester. On this record, viewing the evidence in a light most4
favorable to Davis, a reasonable jury could not conclude that Mays or Davies knew of, or
consciously disregarded, an excessive risk to Davis’s safety.
As to defendant Muscarella, a mental health counselor at HRYCI, Davis contends
that he told Muscarella on several occasions prior to the basketball shoving incidents that
Casey had accused him of being a child molester. According to Davis, Muscarella
advised that “she was basically going to take care of it ... don’t worry about it.” There is,
however, no evidence that Davis ever complained to Muscarella about a specific threat of
harm, and it is undisputed that Davis never requested protection. Further, despite Casey’s
presence, Davis chose to remain housed in the 1D Pod for mental health treatment when
he could have sought a transfer from the unit at any time. In addition, Davis does not5
dispute that he had a history of horseplay and altercations with other inmates, and that in
the past he had displayed an ability to defend himself, not a vulnerability to attack.
Muscarella had counseled Davis on ways to avoid confrontation.
We agree with the District Court that, at most, Muscarella’s actions might reflect
negligence in failing to protect Davis from an environment in which he had been falsely

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labeled a child molester and had encountered an inmate (Casey) who had displayed
hostility toward Davis. But this evidence does not reflect that Muscarella knew of and
disregarded a substantial risk of serious harm to Davis. See Whitley v. Albers, 475 U.S.
312, 319 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith,
that characterize the conduct prohibited by the Cruel and Unusual Punishments
Clause[.]”). Muscarella flatly denies ever being aware of a substantial risk of harm to
Davis, or of being indifferent to his need for protection, and the evidence of record does
not support a reasonable inference to the contrary. Accordingly, summary judgment was
appropriately entered.
b. Claim based on medical needs
After the altercation with Casey in the dining hall, defendant Way took Davis to
the infirmary, where he was examined by Nurse Jeremy. Davis was given gauze for his
bleeding, as well as Motrin and ice, and returned to his unit. Davis was again examined
by a nurse later the same day. At the time, Davis remained able to open his mouth and
talk. The next day, when Davis was again examined, he was unable to open his mouth
and his jaw was swollen. Davis was taken that day to a hospital for an x-ray, which
revealed a “bilateral mandibular fracture.”
Davis was returned to HRYCI and housed in the infirmary for three days before
returning to his cell. After five days in his cell, Davis returned to the infirmary, and, after
a total of eleven days following the assault, he was taken to an outside hospital where

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We note that defendants also argued before the District Court that Davis failed to6
exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). Although the
District Court expressly declined to address this issue, we find the defendants’ argument
well-taken. The record is undisputed that Davis filed a single grievance regarding the
altercations with Casey, indicating that he “would like someone to look into this matter
to see why Officer Daves [sic] and Maze [sic] didn’t do anything to Mr. Casey and why
this Incident wasn’t documented.” Davis also stated that he “would like to press charges
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surgery was performed to repair his jaw. Davis spent the night at the hospital, and then
another three weeks in the prison infirmary upon his return.
At bottom, Davis complains about the length of time between the date of injury
and the date of the surgery on his jaw. “To act with deliberate indifference to serious
medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v.
Kearney, 571 F.3d 318, 330 (3d Cir. 2009). “Deliberate indifference may be shown by
intentionally denying or delaying medical care.” Id. (quotation marks omitted). “Where a
prisoner has received some medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.” United States ex rel. Walker v.
Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979) (quotation marks omitted). We
agree with the District Court that, as a matter of law, Davis failed to raise a claim that
defendants intentionally delayed appropriate care, or that a reasonable jury could
conclude that defendants’ actions amounted to deliberate indifference to Davis’s medical
needs. Consequently, the District Court properly entered summary judgment on this
claim.6

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on Casey.” Davis raised no claim that the medical treatment for his broken jaw was
inadequate. His grievance was denied at the first level of review by the Institutional
Grievance Chair, who advised that Davis could not seek disciplinary action against staff
and should direct his complaint to the staff member’s supervisor. Davis was also told
that the action he requested was inappropriate or not complete, and that he must make an
actual request. Davis did not file a new grievance or appeal the ruling given because, he
testified, he was “satisfied with the answer they gave me.” Because Davis clearly did not
exhaust administrative review on the claims raised in this suit, his suit was subject to
dismissal for that reason, as well.
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IV.
Davis’s remaining claims were properly dismissed for the reasons fully explained
by the District Court. Because we conclude that this appeal presents “no substantial
question,” 3d Cir. IOP Ch. 10.6, the District Court’s judgment will be affirmed.

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