Myzel Frierson v. St. Francis Medical Center

CLD-178 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2684
___________
MYZEL FRIERSON,
Appellant
v.
ST. FRANCIS MEDICAL CENTER;
CORRECTIONAL MEDICAL SERVICES, INC.;
NURSE PRACTITIONER FRAN GREEN;
DR. STEPHEN HOEY;
DR. MAURICE ROSMAN;
NURSE PRACTITIONER LISA RENEE KUNTZ;
CHARMAINE IFILL
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:07-cv-03857)
District Judge: Honorable Renee M. Bumb
____________________________________
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
March 28, 2013
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 24, 2013)
_________
OPINION
_________
PER CURIAM

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Pro Se Appellant Myzel Frierson, appeals from an order of the United States
District Court for the District of New Jersey granting Appellees’ motions for summary
judgment for his civil rights complaint pursuant to 42 U.S.C. § 1983, from an order
denying his motion requesting that the District Court re-enter a prior order dismissing
certain defendants from the case, and from an order denying his motion for additional
time to serve process. Because this appeal does not present a substantial question, we
will summarily affirm. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
I.
Because we primarily write for the parties, we need only recite the facts necessary
for our discussion. Frierson’s claims concern the medical treatment he received while he
was incarcerated in the New Jersey penal system between 2002 and 2007. Specifically,
Frierson alleged that on December 18, 2002, he was sent to St. Francis Medical Center
(“St. Francis”)1 from South Woods State Prison after suffering a high fever, muscle pain,
joint pain and swollen hands. At St. Francis, Frierson was diagnosed with Systemic
Lupus Erythematosus (“Lupus”), which he claimed was a misdiagnosis. Frierson alleged
that his request to be retested for Lupus was denied. To treat his condition, doctors
prescribed the steroid prednisone. Frierson alleged that St. Francis did not disclose the
long-term risks of taking prednisone to him, including avascular necrosis, which is the
reduction of blood supply to the end of long bones, causing death to bone tissue. On

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January 3, 2003, Frierson was discharged from St. Francis and sent back to South Woods.
St. Francis did not provide any follow-up care to Frierson with respect to his Lupus.
Thereafter, Correctional Medical Services (“CMS”) was in charge of Frierson’s medical
care.
In March 2003, two rheumatologists from the University of Medicine and
Dentistry of New Jersey, hired by the Department of Corrections to conduct a medical
evaluation of Frierson, informed Frierson of the risk of organ and joint damage associated
with prednisone. The rheumatologists sent Dr. Stephen Hoey of CMS a letter,
recommending that Frierson’s prednisone dosage be tapered. Frierson received the
prednisone in the reduced dosage and frequency as recommended by the rheumatologists.
Frierson alleged that Drs. Hoey and Rosman, and Nurse Practitioner Lisa Renee Kuntz,
all placed prednisone orders for him, but none of them warned him of the drug’s side
effects. Frierson alleged that as a result of taking the prednisone, he experienced steroid
acne and he developed avascular necrosis, which caused him to endure severe pain and
require serious narcotic medication. Frierson alleged that he repeatedly requested to be
retested for Lupus from the doctors and nurse practitioners at CMS, but these requests
were denied.
Frierson also alleged that there was a two-week period from May 22 to June 5,
2007, when he did not receive his pain medication for his avascular necrosis. Frierson
1 St. Francis is a private medical center that had a contract with the New Jersey
Department of Corrections to provide medical services to New Jersey inmates during the

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alleged that Nurse Charmaine Ifill discontinued his medication in contravention to
doctor’s orders.
During his incarceration, the prisons had a grievance procedure available to
Frierson. Frierson did not follow the proper grievance procedure regarding his claims
that his requests to be retested for Lupus were denied, that no one informed him of the
side effects of prednisone, or that he was denied pain medication.
Frierson claims that he received inadequate medical treatment in violation of his
Eighth Amendment rights. He brought claims against St. Francis, CMS, Nurse
Practitioners Green and Kuntz, Drs. Hoey and Rosman, and Nurse Ifill. The District
Court granted summary judgment as to all defendants on August 4, 2011, in part because
Frierson failed to exhaust his administrative remedies and because Frierson did not have
valid claims under the Eighth Amendment.2 Frierson appealed, but we dismissed the
appeal on the grounds that there were certain cross-claims pending. Thereafter, the
District Court issued an order on January 20, 2012, noting that the cross-claims were
moot and noting that nurse practitioner Kuntz had never been served with process and
had never entered her appearance. The District Court ordered Frierson to inform the
relevant time period.
2 The District Court also denied Frierson’s motion to re-enter its prior order dismissing
with prejudice defendants “ New Jersey Department of Corrections and Department
Officials.” We conclude that the District Court properly denied this motion, as Frierson
has not alleged claims against these parties, and to the extent that there were claims
against George W. Hayman, Commissioner of the Department of Corrections, the record
shows that the claims against Hayman were dismissed with prejudice by joint stipulation
on September 17, 2009.

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Court whether he conceded the claims against Kuntz, and if not, to show cause as to why
the Court should not dismiss them in light of his failure to timely serve Kuntz under
Federal Rule of Civil Procedure 4(m). On April 23, 2012, Frierson filed a motion for
extension of time to serve Kuntz. The District Court denied the motion, dismissed the
claims against Kuntz without prejudice and ordered the Clerk to re-close the file.
Frierson timely filed this appeal.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s grant of summary judgment. Howley v. Mellon Fin. Corp., 625 F.3d
788, 792 (3d Cir. 2010). In considering the record, we “apply[] the same standard that
the court should have applied.” Id. Summary judgment is only proper where no genuine
issue exists as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). We review the dismissal pursuant to Rule 4(m) for abuse of
discretion. Boley v. Kaymark, 123 F.3d 756, 757 (3d Cir. 1997). We may summarily
affirm on any basis supported by the record if the appeal does not present a substantial
question. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
III.
Section 1983 provides private citizens with a means to redress violations of federal
law committed by state officials. See 42 U.S.C. § 1983. To establish a claim under §
1983, a plaintiff “must establish that she was deprived of a federal constitutional or
statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).

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Frierson alleges that CMS, Drs. Hoey and Rosman, and Nurse Practitioner Green
violated his Eighth Amendment rights by denying his requests to be retested for Lupus,
failing to inform him of the side effects of prednisone, and denying him pain medication.
However, we agree with the District Court that Frierson failed to exhaust his
administrative remedies with respect to these claims.3
Under the Prison Litigation Reform Act (“PLRA”), inmates must exhaust their
administrative remedies before filing a suit alleging specific acts of unconstitutional
conduct by prison officials. 42 U.S.C. § 1997e(a). A prisoner must exhaust these
remedies “in the literal sense;” no further avenues in the prison’s grievance process
should be available. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). “[I]t is the
prison’s requirements, and not the PLRA, that defines the boundaries of proper
exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
The record shows that during Frierson’s incarceration at South Woods, where he
was treated by Drs. Hoey, Rosman, and Nurse Practitioners Green and Kuntz, Frierson
was required to exhaust a four-step inmate grievance and tracking program and then file a
complaint with the Office of the Corrections Ombudsman to address any outstanding
concerns or complaints. Frierson conceded that he did not file any grievances regarding
3 When Frierson was treated by nurse Ifill, he was incarcerated at Northern State Prison.
While there is no evidence that Frierson filed a proper grievance with respect to his
claims against nurse Ifill, and thus did not exhaust his administrative remedies, the
Inmate Handbook for Northern State Prison is not part of the record. Accordingly, we
will summarily affirm the District Court’s judgment with respect to the claims against
Ifill on other grounds, as discussed infra.

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his claim that his requests to be retested for Lupus were denied. Moreover, Frierson did
not file any grievances regarding his claim that the defendants failed to inform him of the
side effects of prednisone. To the extent that Frierson did file grievances with respect to
his medical treatment, the record shows that Frierson did not file any appeal of the
outcome of any of these initial grievances, as required by the grievance procedure. Thus,
we conclude that the District Court properly granted Drs. Hoey’s, Rosman’s, and Nurse
Practitioner Green’s motion for summary judgment because Frierson failed to properly
exhaust his administrative remedies.4
With respect to Frierson’s claims against Nurse Ifill, in the context of Eighth
Amendment claims based on medical care, he must demonstrate deliberate indifference to
a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). “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). For instance,
a plaintiff may make this showing by establishing that the defendants “intentionally
den[ied] or delay[ed] medical care.” Id. (quotation marks omitted). However, “[w]here 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.
4 Nurse Practitioner Kuntz has not been served process and the District Court denied
Frierson’s motion for extension of time to serve Kuntz. We conclude that the District
Court did not abuse its discretion in dismissing Kuntz because an extension would have
been futile, in light of the fact that Frierson failed to exhaust his administrative remedies.

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Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal quotation marks omitted).
Frierson alleged that Nurse Ifill directed Dr. Hochberg to stop his pain medication, but
the record shows that Dr. Hochberg did prescribe Frierson pain medication during the
relevant time period. 5 Moreover, there is nothing in the record to support Frierson’s
speculation that Nurse Ifill told Dr. Hochberg to stop his pain medication. Therefore, we
agree with the District Court that there is nothing in the record to support the claim that
Nurse Ifill acted with reckless disregard to Frierson’s medical needs.6
Frierson also has claims against St. Francis and CMS. These entities may be liable
based on a suit brought pursuant to § 1983 only if “the alleged constitutional
transgression implements or executes a policy, regulation or decision officially adopted
by the governing body or informally adopted by custom.” Beck v. City of Pittsburgh, 89
F.3d 966, 971 (3d Cir. 1996) (citation omitted). Frierson alleged that with respect to
CMS, it had a policy of refusing treatment, appointments and medication. With respect
to St. Francis, Frierson alleged that it had a policy of failing to monitor its patients after
they were discharged from the hospital. We agree with the District Court that there is
5 Dr. Hochberg is not a defendant in this suit.
6 We also agree with the District Court that Frierson does not have a valid Eighth
Amendment claim for inadequate medical treatment against Drs. Hoey, Rosman, and
Nurse Practitioner Green, because their failure to retest Frierson and warn him of the
effects of prednisone does not amount to deliberate indifference. Because we conclude
that Frierson’s claims with respect to these defendants are barred because he did not
exhaust his administrative remedies, there is no need to analyze the merits of the Eight
Amendment claim further.

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nothing in the record to support these allegations and conclude that Frierson’s claims
against CMS and St. Francis fail as a matter of law.
IV.
For the foregoing reasons, no substantial question is presented and we will
summarily affirm the judgment of the District Court. Appellant’s outstanding motions
are denied.

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