                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-25-2008

Ali v. Mcanany
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3283




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Recommended Citation
"Ali v. Mcanany" (2008). 2008 Decisions. Paper 1706.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1706


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                                                  NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT




                         No. 06-3283
                         _________


                  IMANUEL BASSIL ALI,

                                          Appellant

                               v.

JOHN MCANANY, Nurse Supervisor; TAMMY HOFFMAN, Nurse;
      LT. HAYWOOD; CPT. HALL, RHU Commander;
             DENISE HELVERDING, Nurse;
       SHARON D’ELETTO, Grievance Coordinator;
              L.S. FOLINO, Superintendent

                _________________________

        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                 (D.C. Civ. No. 06-cv-00096)
          District Judge: Hon. Donetta W. Ambrose

               __________________________

          Submitted under Third Circuit LAR 34.1(a)
                     on August 16, 2007


    Before: BARRY, CHAGARES and ROTH, Circuit Judges

                   (filed: January 25, 2008 )
                                         _________

                                        OPINION
                                         _________

PER CURIAM

       Appellant, Imanuel Bassil Ali, proceeding pro se and in forma pauperis, appeals an

order of the United States District Court of Western Pennsylvania dismissing Ali’s civil

rights claims. For the reasons stated below, we will affirm the District Court’s order in part,

vacate in part, and remand for further proceedings.

       Ali, an inmate at the State Correctional Institution at Greene (“SCI-Greene”) in

Waynesburg, Pennsylvania, filed suit under 42 U.S.C. § 1983 alleging violations of the First,

Eighth, and Fourteenth Amendments of the United States Constitution. The defendants

named in his original and amended complaints are prison nurses Tammy Hoffman and

Denise Helverding, Nurse Supervisor John McAnany, Corrections Officers Lt. Haywood and

Capt. Hall, Grievance Coordinator Sharon D’Eletto, and Superintendent L.S. Folino. In

January 2004, while incarcerated at SCI-Greene, Ali was ordered to undergo a blood

extraction procedure for the purpose of providing the Commonwealth with a DNA sample.

He alleges that difficulties arose during the course of this procedure because he is afflicted

with a medical condition known as rolling veins. According to Ali, Hoffman made two

attempts to draw blood by puncturing Ali’s right arm and left hand with a hypodermic needle.

After these attempts failed, Hoffman allegedly recommended the use of an oral swab to

obtain a DNA sample and stated to those present that no further attempts should be made to

                                              2
draw blood. McAnany allegedly disregarded Hoffman’s advice and tried two more times to

draw blood. The second attempt was successful. As a result of the repeated attempts to draw

blood, Ali claims that he suffered from severe pain and that visible injuries developed in the

area of his puncture wounds. He claims that McAnany violated the Eighth Amendment’s

prohibition against cruel and unusual punishment and that Hoffman, Lt. Haywood and Capt.

Hall also violated the Eighth Amendment by failing to intervene on Ali’s behalf during the

procedure. He also asserts an Eighth Amendment claim against Helverding for failing to

process his sick call request slips, and against D’Eletto and Folino for not appropriately

responding to his grievances regarding the medical care he was receiving for his injuries.1

          The Pennsylvania Department of Corrections, acting on behalf of McAnany,

Haywood, Hall, Helverding, D’Eletto and Folino, filed a motion to dismiss Ali’s Eighth

Amendment claims for failure to state a claim upon which relief may be granted; Hoffman

filed a separate motion to dismiss. The Magistrate Judge assigned to the case issued a Report

and Recommendation (“R&R”) advising the District Court to grant the motions to dismiss.

Over Ali’s objections, the District Court issued an order adopting the R&R in its entirety.

Ali timely appeals that decision.2


  1
   On appeal, Ali also challenges the constitutionality of the prison’s policy calling for the
use of a hypodermic needle rather than a swab kit to obtain a DNA sample. We will not
address this claim because he did not assert it in his amended complaint.
      2
     The order being appealed did not dispose of Ali’s First Amendment claims. Ali has
since successfully moved to withdraw his First Amendment claims, thereby rendering the
District Court’s order final and appealable. See Aluminum Co. of Am. v. Beazer East, Inc.,
124 F.3d 551, 557 (3d Cir. 1997) (“Even if the appeals court would have lacked jurisdiction

                                              3
       Our review of the District Court’s judgment is plenary. Curay-Cramer v. Ursuline

Acad., 450 F.3d 130, 133 (3d Cir. 2006). We must liberally construe a complaint filed by

a pro se litigant. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Furthermore, we

must “accept as true all allegations in the complaint and all reasonable inferences that can

be drawn therefrom, and view them in the light most favorable to the plaintiff.” Evancho v.

Fisher, 423 F.3d 347, 350 (3d Cir. 2005).

       First, we address Ali’s claim against Helverding, who is identified in the amended

complaint as the nurse responsible for collecting sick call slips from inmates residing in the

restricted housing unit at SCI-Greene. Ali claims that Helverding “exercised deliberate

indifference to Ali’s serious medical needs by continually refusing to accept/process his sick

call slips bearing his true surname in conjunction with his commit name and number.”

Amend. Compl. ¶ 29. Ali allegedly submitted a sick call slip to Helverding the day after the

blood extraction requesting medical attention for “excruciating pain, swelling,

inflam[m]ation, and skin breakage” in the area of his puncture wounds. Amend. Compl. ¶¶

16-17. He waited two days for a response before submitting a second sick call slip.

Helverding then allegedly informed Ali that the first request was discarded because he signed

the document with the surname “Ali” rather than his name of commitment and that she would

not process the second request for the same reason. Ali maintains that both slips bore his



at the time an appeal was filed, the court has jurisdiction if, as a result of subsequent events,
there are no longer any claims left to be resolved by the district court.”). We therefore have
jurisdiction under 28 U.S.C. § 1291.

                                               4
name of commitment in addition to “Ali,” and that Helverding had previously processed sick

call requests containing both surnames.

       We conclude that the amended complaint states a cognizable Eighth Amendment

claim against Helverding. A prison official violates the Eighth Amendment by denying or

delaying reasonable requests by an inmate for medical treatment, provided the challenged

conduct constitutes deliberate indifference to serious medical needs. See Estelle v. Gamble,

429 U.S. 97, 104 (1976); Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326,

346-47 (3d Cir. 1987). The allegations in the amended complaint indicate that Ali was

suffering from a serious medical need at the time he presented the sick call slips to

Helverding. See Spruill, 372 F.3d at 235-36. The allegations also suggest that Helverding

deliberately and arbitrarily refused to process Ali’s requests for medical attention. In

addressing the claim against Helverding, the Commonwealth does not cite to any prison

regulations that indicate that the form of Ali’s requests was improper. Nor does the

Commonwealth address the allegations regarding Helverding’s prior acceptance of sick call

slips bearing both of Ali’s surnames. We therefore do not find support in the record for the

Magistrate Judge’s determination that Ali, rather than Helverding, was responsible for the

delay in receiving medical care.

       As to the allegations against the remaining defendants, we conclude that the amended

complaint fails to state a claim upon which relief may be granted. First, the District Court

correctly ruled that the amended complaint does not state a congizable Eighth Amendment



                                             5
claim against McAnany. An Eighth Amendment violation occurs where a prison official

unnecessarily and wantonly inflicts pain on an inmate in a manner that offends contemporary

standards of decency. See Hudson v. McMillian, 503 U.S. 1, 8 (1992). The Eighth

Amendment is always violated “when prison officials maliciously and sadistically use force

to cause harm.” Id. at 9. The facts set forth in the original and amended complaints indicate

that McAnany made two attempts at obtaining a blood sample with a hypodermic needle and

that he ceased engaging in the offending conduct after his second attempt at drawing blood

proved successful. Because these allegations do not give rise to a reasonable inference that

McAnany inflicted the two puncture wounds for the purpose of causing Ali harm, we

conclude that the District Court correctly granted the motion to dismiss as to McAnany.

       Next, Ali argues that Hoffman, Haywood, and Hall acted improperly during the blood

extraction by failing to “intervene immediately to protect Ali from further injury by

McAnany.” Amend. Compl. ¶ 28. According to Ali, these parties had a duty to intervene

analogous to the duty of corrections officers to take reasonable steps to protect an inmate

from excessive force inflicted by another officer. See Smith v. Mensinger, 293 F.3d 641, 650

(3d Cir. 2002). As we noted in Smith, such a duty only arises where an officer is presented

with a “reasonable and realistic opportunity to intervene.” Id. We reject the claims against

Haywood and Hall because Ali has not pled facts indicating that these defendants had a

reasonable and realistic opportunity to protect Ali from the force inflicted by McAnany.

Specifically, there is no indication that the officers witnessed the alleged misconduct, had



                                             6
reason to know that excessive force was being used, or could have reasonably prevented

further harm through their intervention. The claim against Hoffman is also subject to

dismissal because she is not a corrections officer and thus did not have a duty to intervene

under the rule acknowledged in Smith.

       Ali also claims that D’Eletto and Folino violated the Eighth Amendment by not

immediately responding to his administrative grievance challenging the adequacy of the

medical care he was receiving for his injuries. In the grievance, which is attached to the

amended complaint, Ali admits that a physician’s assistant examined the injuries on two

occasions. Because Ali was clearly under medical care at the time he submitted the

grievance, D’Eletto and Folino did not exhibit deliberate indifference in violation of the

Eighth Amendment by failing to issue a suitable response to the grievance. See Spruill, 372

F.3d at 236; Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

       For the foregoing reasons, we will affirm the judgment in part, vacate the judgment

in part, and remand to the District Court for further proceedings consistent with this

opinion.3




  3
    Ali has filed a motion to dismiss Hoffman’s brief as untimely. Inasmuch as Hoffman’s
brief was filed in accordance with this Court’s scheduling order, we deny the motion. Ali
has also filed a motion requesting this Court to convert the motion to dismiss into a reply
brief. We grant this motion.

                                             7
