On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-09-cv-01551) District Judge: Honorable Sylvia H. Rambo
The opinion of the court was delivered by: Fisher, Circuit Judge.
Opinion Issued March 11, 2013
Panel Rehearing Granted April 2, 2013
Before: FUENTES, FISHER and COWEN, Circuit Judges.
Haddrick Byrd, a prisoner at SCI-Frackville, filed a pro se complaint under 42 U.S.C. § 1983 in the Middle District of Pennsylvania alleging that various Pennsylvania Department of Corrections ("DOC") employees violated his Eighth Amendment rights and were negligent under state law. Byrd appeals the District Court‟s order granting summary judgment to DOC employees V. Stanishefski, Jack Robinson, and H. Spencer on his Eighth Amendment claims. Byrd also appeals the District Court‟s decision to decline reconsideration of its order granting a motion to dismiss for DOC employees Robert Shannon and Dorina Varner. In addition, Byrd appeals the District Court‟s decision to decline supplemental jurisdiction over his state law negligence claims.
Instead of paying a docketing fee on appeal, Byrd filed a motion to proceed in forma pauperis ("IFP"). We appointed counsel to act as amicus curiae and address the issue of whether Byrd was eligible to proceed IFP. Thereafter, we initially determined that Byrd was ineligible for IFP status. However, after granting amicus‟s petition for panel rehearing, we have decided to grant Byrd‟s request to proceed IFP. As such, we will reach the merits of Byrd‟s appeal, and we will affirm the District Court‟s order granting summary judgment, along with its decision to decline reconsideration of its previous order, and its decision to decline supplemental jurisdiction over Byrd‟s state law claims.
At all times relevant to this appeal, Byrd was an inmate at SCI-Frackville. Byrd‟s pro se complaint of August 13, 2009 named the following defendants: (1) Robert Shannon, the Superintendent of SCI-Frackville; (2) V. Stanishefski, the Corrections Health Care Administrator at SCI-Frackville; (3) Jack Robinson, the Supervising Nurse at SCI-Frackville; (4) H. Spencer, a Nurse at SCI-Frackville; and (5) Dorina Varner, the Chief Grievance Officer for the DOC. Byrd specifically alleges that these DOC employees showed deliberate indifference to his serious medical needs by failing to provide him with prescription eye drops for his glaucoma, thus depriving him of his Eighth Amendment rights and committing negligence under state law.
The relevant events began in early 2008. On January 4, 2008, Byrd indicated to Spencer that he was experiencing delays in receiving his prescription eye drops, Timolol and Travatan. On February 7, 2008, Byrd informed Shannon that he was still experiencing delays in receiving his eye drops. Byrd‟s medical records indicate that he was given one month‟s supply of Timolol on both January 4, 2008 and February 8, 2008, and that he was given one month‟s supply of Travatan on both January 9, 2008 and February 6, 2008. After receiving one month‟s supply of Travatan on March 3, 2008, Byrd wrote to Stanishefski about the delays. On March 6, 2008, Robinson responded on behalf of Stanishefski as follows:
"We can not give you the eye drops if the pharmacy does not send them to us. Also you were on the call out on 3/5/08 and did not show up for your drops. You are now on the call out for 3/9/08." Supp. App. at 33.
Byrd was subsequently given one month‟s supply of both Timolol and Travatan on the following dates over the next five months: April 3, May 1, May 29, June 25, and July 24. The prescription for Byrd‟s eye drops expired on July 31, 2008. Byrd did not notify Stanishefski regarding the expiration of his prescription until September 16, 2008. The prescription was renewed on September 22, 2008, and Byrd was given one month‟s supply of Timolol and Travatan the next day. However, Byrd experienced further delays. On October 29, 2008, Byrd wrote to Stanishefski about not being called out to pick up his eye drops earlier that week. Robinson responded on behalf of Stanishefski as follows:
"Medical does not give you them. We can only give them to you when the pharmacy ships them to us. I will check what the problem is so to try and avoid this in the future." Supp. App. at 33.
Byrd, on November 3, 2008, filed a grievance regarding the delays. The grievance named Shannon, Robinson, Stanishefski, and Varner, but did not name Spencer. Robinson responded on behalf of Stanishefski as follows:
"This a summary of my findings regarding your grievance #248753. Your concern is you did not receive your eye drops for glaucoma. A review of your medical record reveals your eye drop medication prescription expired on July 31, 200. You participate in the self- medication program. The self-medication permits you to be responsible for your health care needs. You never attempted to access sick call when you knew the eye drops had expired. In addition you were also seen by the optometrist three times since July 2008 and never requested eye drops from him. You have an eye condition that will require eye drop medication for the rest of your life. I strongly encourage you to be an active participant in your care. This grievance including monetary requests is denied."
Byrd was subsequently given his eye drops on the following dates in 2008: November 5 (Timolol), November 8 (Travatan), December 2 (both), and December 31 (both).
Byrd was seen by an optometrist on the following dates in 2008: March 19, April 16, July 9, October 1, October 29, November 19, and December 8.
Byrd filed a complaint in the District Court on August 13, 2009. He was granted IFP status on September 9, 2009. The District Court, on February 22, 2010, granted defendants‟ motion to dismiss in part, dismissing Shannon and Varner due to their lack of involvement in Byrd‟s medical care. On February 28, 2011, the District Court granted the remaining defendants‟ motion for summary judgment. The District Court specifically held that Byrd failed to exhaust his administrative remedies against Spencer and that Stanishefski and Robinson were not deliberately indifferent to Byrd‟s serious medical needs. The District Court declined to exercise supplemental jurisdiction over Byrd‟s remaining state law negligence claims.*fn1
On April 5, 2011, Byrd filed a motion to proceed IFP on appeal. That same day, the Clerk‟s Office notified Byrd that he had "three strikes" under 28 U.S.C. § 1915(g) and had to file a motion showing that he was in imminent danger of serious physical injury in order to be eligible for IFP status. Byrd‟s three potential strikes included two actions that were clearly dismissed for failure to state a claim: (1) Byrd v. Parris, No. 99-cv-00769 (E.D. Pa. Oct. 15, 1999) and (2) Byrd v. City of Philadelphia, No. 06-cv-01957 (E.D. Pa. Aug. 10, 2006). The other potential strike, Byrd v. Gillis, C.A. No. 01-3868 (3d Cir. July 30, 2002), was an appeal that was dismissed by this Court under 28 U.S.C. § 1915(e)(2)(B) because it was "without merit." In response to the notification by the Clerk‟s Office, Byrd did not file a motion alleging imminent danger; instead, he submitted a response on April 19, 2011, arguing that the Clerk‟s Office made a mistake in determining that he had three strikes. Byrd noted that, although he brought two prior actions that were dismissed for failure to state a claim, he did not proceed IFP in those actions.
In the January 12, 2012 order appointing amicus curiae, this Court instructed amicus to address whether dismissals of non-IFP actions and appeals can count as strikes under § 1915(g) or whether only IFP actions and appeals can count as strikes. The Court also stated that "[a]micus counsel may wish to address the relevance, if any, of the fact that 28 U.S.C. section 1915(e) and section ...