Dwight Whetstone v. R.S. ELLERS, Dir. M.H.C. Serv. (Pa. Doc.)

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BLD-294 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1518
___________
DWIGHT WHETSTONE,
Appellant
v.
R.S. ELLERS, Dir. M.H.C. Serv. (Pa. Doc.); DR. STANLEY STANISH;
STANLEY BOHINSKI, M. Dir.; PATRICIA GINOCCHETTI, C.H.C.H.;
EVELYN SMITH, R.N.; JAMES WYNDER, S. SCID R;
EDGAR KNEISS, D.S. SCID R
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 08-cv-02306)
District Judge: Edwin M. Kosik
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 22, 2011
Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: October 5, 2011)
_________
OPINION
_________
PER CURIAM
Inmate Dwight Whetstone was badly injured after attempting to bench-press a

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substantial amount of weight in the prison gym. As was eventually discovered,
Whetstone‟s left pectoral had completely separated from a prominent shoulder muscle
and, as a result, the shoulder muscle had rolled down into Whetstone‟s chest area.
Whetstone sued several administrators and medical personnel employed at or associated
with SCI-Dallas—his place of confinement—principally claiming that they were
deliberately indifferent to his medical needs related to the weightlifting injury. The
District Court granted the motion to dismiss of several defendants, and granted summary
judgment in favor of the remaining defendants. We will summarily affirm.
According to his hundred-page complaint (including attachments), brought
pursuant to 42 U.S.C. § 1983, Whetstone immediately went to the prison infirmary after
the injury occurred, where he was given “ice with iodine” and had his blood pressure
taken by defendant Evelyn Smith, a Registered Nurse. Nurse Smith then contacted
defendant Dr. Stanley Bohinski, the prison‟s Medical Director, and she informed him of
Whetstone‟s injury and high blood pressure. Dr. Bohinski “prescribed a pill to get the
pressure down,” “ordered overnight observation,” and attended to Whetstone the
following day. Dr. Bohinski ordered an x-ray of Whetstone‟s left shoulder and chest
area.
Two days after the injury, Whetstone was seen by defendant Dr. Stanley Stanish,
the Regional Health Director for prisoner health services. Dr. Stanish “gave [Whetstone]
several dosages of non-aspirin.” Still in pain the next day, Whetstone returned to the
prison infirmary, where he “was told to sign up for sick call.” Six days later (nine days

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after the injury occurred), Whetstone “was taken to Kingston, Pa., for an orthopedic
consultation” and was told that he “was in great need of a corrective surgery.” The
following week the results of Whetstone‟s x-ray were in. Twelve days later Whetstone
“was taken to Wilkes-Barre Imaging Center for an M.R.I.” The following week
Whetstone was prescribed 500 milligrams of Acetaminophen, and he was given
additional pain-relievers over the course of the next two months.
Fourteen weeks after his injury occurred, Whetstone underwent surgery to repair
the muscle damage. Complaining of “lumpage [sic] in his chest” one month later,
Whetstone sought assistance from prison medical staff, including Dr. Stanish, who
“concurred [that] surgery was not successful.” Whetstone received “another chest
exam,” and was eventually told by Dr. Bohinski that a second surgery would not be
performed. Whetstone instead was prescribed an alternative treatment plan of physical
therapy. Whetstone found that he “was unable to do even the bare minimum of
movement” during the physical therapy sessions.
Whetstone believes that the medical care he received was insufficient and that it
was provided in an untimely fashion. In particular, Whetstone alleges that the failure to
provide him with a second surgery was cruel and unusual punishment, and possibly
discrimination against him based on the fact that Whetstone is serving a life sentence.
Whetstone challenged his medical care using the inmate grievance system, but he was
ultimately unsuccessful. He then filed this suit.
By order entered September 24, 2009, the District Court: denied without

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prejudice Whetstone‟s motions for appointment of counsel; granted the motion to dismiss
of defendants Dr. R.S. Ellers, James Wynder, Edgar Kneiss, and Patricia Ginocchetti;
denied the motions to dismiss of Dr. Stanish, Dr. Bohinski, and Nurse Smith; and ordered
those three to answer Whetstone‟s complaint. In its opinion the District Court reasoned
that Whetstone failed to state a claim against Dr. Ellers because he failed “to plead with
particularity the conduct, time, and place that provides the base for [his] claim.” The
District Court noted that “Dr. Ellers‟ position as Director of the Bureau of Health Care
Services is not enough personal involvement to sustain a cause of action.” As for the
non-medical defendants (Wynder, Kneiss and Ginocchetti), the District Court similarly
determined that Whetstone had failed to state a claim because he “allege[d] no fact that
could plausibly form a claim of liability” against those defendants. The District Court
also determined that Whetstone‟s complaint “fails to state an Equal Protection claim
based upon his status as a „lifer‟ because he fails to allege that (1) non-lifers who received
surgery or other medical care were similarly situated to Whetstone and (2) there was no
rational basis to support SCI-Dallas‟s decision to deny the second surgery.”
After a period of discovery conducted under the supervision of a Magistrate Judge,
Drs. Stanish and Bohinski, and separately Nurse Smith, moved for summary judgment.
By order entered January 31, 2011, the District Court adopted the recommendation of the
Magistrate Judge that the motions for summary judgment be granted. The District Court
agreed with the Magistrate Judge that Nurse Smith and Drs. Stanish and Bohinski were
entitled to judgment as a matter of law on Whetstone‟s Eighth Amendment medical

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neglect claim. In particular, the District Court noted that Whetstone “has received
continuous care since injuring himself in a weightlifting accident. He has been examined
by numerous medical professionals, received medications, MRI scans, consultations,
physical therapy, and has even had surgery all in an effort to remedy his injury.” And
noting that Whetstone‟s claims against Drs. Bohinski and Stanish were premised on a
dissatisfaction with the course of treatment prescribed, the District Court cited Brown v.
Borough of Chambersburg, 903 F.2d 274 (3d Cir. 1990), for the proposition that “the
exercise by a doctor of his professional judgment is never deliberate indifference” to an
inmate‟s medical needs. See id. at 278 (“While the distinction between deliberate
indifference and malpractice can be subtle, it is well established that as long as a
physician exercises professional judgment his behavior will not violate a prisoner‟s
constitutional rights”). Whetstone timely appealed.
We have jurisdiction under 28 U.S.C. § 1291, and our review is plenary.
See Howley v. Mellon Fin. Corp., 625 F.3d 788, 792 (3d Cir. 2010) (plenary review of
orders granting summary judgment); Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 163 (3d Cir. 2010) (plenary review of order granting motions under
Fed. R. Civ. P. 12(b)(6)). We may summarily affirm a district court judgment if the
appeal fails to present a substantial question. See LAR 27.4; I.O.P. 10.6.
An inmate‟s constitutional right to adequate medical care is violated if his serious
medical need is met with deliberate indifference from prison officials. See Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). An inmate‟s allegations

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of medical malpractice or negligence are insufficient to meet that standard, as are “mere
disagreements” concerning the proper course of treatment. Spruill v. Gillis, 372 F.3d
218, 235 (3d Cir. 2004); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326,
346 (3d Cir. 1987). A prison official can rebut a prima facie demonstration of deliberate
indifference by establishing that, having learned of the inmate‟s serious medical need,
reasonable steps were taken to prevent further harm to the inmate‟s health or safety.
Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001).
For substantially the reasons given in the District Court‟s September 24, 2009 and
January 31, 2011 opinions, we will summarily affirm the judgment of the District Court.
That Whetstone‟s injury constitutes a “serious medical need” is not debated. See
Lanzaro, 834 F.2d at 347 (“A medical need is „serious,‟ . . . if it is „one that has been
diagnosed by a physician as requiring treatment or one that is so obvious that a lay person
would easily recognize the necessity for a doctor‟s attention”) (citations omitted). But
whether the conduct of the defendants in this case is susceptible to a deliberate
indifference characterization—and we conclude that it is not—fails to present a
substantial question. Cf. Durmer v. O‟Carroll, M.D., 991 F.2d 64, 68 (3d Cir. 1993)
(noting that deliberate indifference may exist where “prison authorities prevent an inmate
from receiving recommended treatment,” or “where knowledge of the need for medical
care [is accompanied by the] intentional refusal to provide that care”). In addition, there
is no factual basis in the record to support Whetstone‟s equal protection claim. Finally,
we agree with the District Court that Whetstone failed to state a claim against Wynder,

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Kneiss, Ginocchetti, and Dr. Ellers. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988) (“A defendant in a civil rights action must have personal involvement in the
alleged wrongs”).

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