NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O S . 03-2947 & 04-4312

JOSEPH EDWARD MILLER,

Appellant

v. SUSAN L. MAURER; THOMAS FARRELL; ROY L. HENDRICKS;

CAROL HOLT; GEORGE ACHEBE; RAYMUNDO T. TAGLE;

RIZAWANA HAMID; MARY V. THOMAS; ELLEN WARNER

O n Appeal From the United States District Court

F o r the District of New Jersey

(D .C . Civ. No. 02-cv-00004)

D is tric t Judge: Honorable Anne E. Thompson

S u b m itte d Under Third Circuit LAR 34.1(a)

J u ly 5, 2005

B E F O R E : ROTH, McKEE and ALDISERT, CIRCUIT JUDGES

(F ile d April 6, 2006)

O P IN IO N

P E R CURIAM J o s e p h Miller appeals the District Court's January 13, 2003, February 25, 2003, a n d October 22, 2004, orders. The procedural history of this case and the details of a p p e lla n t's claims are well-known to the parties and need not be discussed at length.

Briefly, Miller alleged that appellees were deliberately indifferent to his serious medical n ee d s of rectal bleeding and knee pain. The State appellees filed a motion for summary ju d g m e n t which the District Court granted. The medical appellees then filed a motion for su m m a ry judgment. The District Court denied Miller's motion for an extension of time to f ile a response and granted the medical appellees' motion for summary judgment. Miller f ile d a notice of appeal which was docketed at C.A. No. 03-2947. After outstanding c ro s s -c la im s were resolved, Miller filed a notice of appeal from the District Court's order d e n yin g his "Motion for leave to oppose summary judgment nunc pro tunc" which was d o c k e te d at C.A. No. 04-4312. The appeals were consolidated.

We have jurisdiction under 28U.S.C. § 1291. We exercise plenary review over th e District Court's order granting appellees' motion for summary judgment. Gallo v. C ity of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). A grant of summary judgment w ill be affirmed if our review reveals that "there is no genuine issue as to any material f ac t and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P.

5 6 (c). We review the facts in a light most favorable to the party against whom summary ju d g m e n t was entered. See Coolspring Stone Supply, Inc. v. American States Life Ins.

C o ., 10 F.3d 144, 146 (3d Cir. 1993). In order to state a claim for denial of medical care, M ille r must show that the appellees were deliberately indifferent to his serious medical n e e d s. Estelle v. Gamble, 429 U.S. 97 , 104 (1976). A medical need is serious if it is one " th a t has been diagnosed by a physician as requiring treatment or one that is so obvious th a t a lay person would easily recognize the necessity for a doctor's attention." M o n m o u th County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3rd Cir. 1 9 8 7 ). With respect to medical decisions, "prison authorities are accorded considerable la titu d e in the diagnosis and treatment of prisoners." Durmer v. O'Carroll, 991 F.2d 64, 6 7 (3d Cir. 1993). Courts will "disavow any attempt to second-guess the propriety or a d e q u ac y of a particular course of treatment . . . (which) remains a question of sound p rof essio n al judgment." Inmates of Allegheny Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1 9 7 9 ) (citations omitted).

A f te r a review of the voluminous appellate pleadings, we agree with the District C o u rt that the medical appellees were entitled to summary judgment. While there was s o m e time between the recommendations for procedures and when they were performed, M ille r has not shown that these time periods rose to the level of deliberate indifference.

While he focuses on the details of the medical treatment he received over the two-year p e rio d in question, Miller has not demonstrated that there are material issues of disputed f a ct preventing summary judgment. For example, while Miller contends that the stool s a m p le s he provided in March 2001 were discarded, he does not explain what further a n a lys is the medical appellees should have performed on the samples. We note that by th a t time a colonoscopy and endoscopy had already been performed on Miller. A m is p la c ed orthopedic consult and a scheduling error for a colonoscopy do not rise to the leve l of deliberate indifference. The District Court did not err in granting summary ju d g m e n t to the state appellees. Because they are not doctors, the state appellee prison o f f ic ia ls cannot be held to be deliberately indifferent merely because they did not respond to the medical complaints of a prisoner who was already being treated by the prison m ed ical staff. Durmer, 991 F.2d at 69. The District Court did not err in denying Miller's m o tio n for leave to oppose summary judgment nunc pro tunc.

M ille r also challenges the District Court's denial of his motion for an extension of tim e to respond to the medical appellees' motion for summary judgment. In his appellate b rie f , he argues that his lack of legal training, ongoing medical operations and lost legal m a te ria l provided a basis for an extension of time. However, in his motion filed in the D is tric t Court, Miller only argued that the medical appellees' summary judgment motion w a s complex and that he was also preparing an appeal of the grant of summary judgment to the state appellees. The District Court did not abuse its discretion in denying the m o tio n .

For the above reasons, as well as those set forth by the District Court, we will af firm the District Court's judgment. The medical appellees' motion to strike appellant's b rie f and appendix is denied as moot and their motion to file a supplemental appendix is g r a n te d .