                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2007

Mendez v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3097




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BLD-47                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3097
                                   ________________

                                  SAMUEL MENDEZ,

                                                 Appellant,

                                            v.

     PENNSYLVANIA DEPARTMENT OF CORRECTIONS; PRISON HEALTH
              SERVICES; DR. MARK BAKER; DR. FRAIDER
                ____________________________________

                     On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                                (D.C. Civ. No. 05-cv-00035)
                      District Judge: Honorable Sean J. McLaughlin
                     _______________________________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  November 16, 2006

           Before:    MCKEE, FUENTES AND ROTH, CIRCUIT JUDGES

                                   (Filed: May 8, 2007)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Samuel Mendez, an inmate at the State Correctional Institution at Albion,

Pennsylvania, appeals an order of the United States District Court for the Western District
of Pennsylvania dismissing his civil rights complaint. For the following reasons, we

conclude that the appeal is meritless and we will dismiss it under 28 U.S.C. §

1915(e)(2)(B).

       Mendez injured his right arm and shoulder while employed moving rugs in the

prison medical department. Shortly after the injury occurred, he was examined by several

physicians including Dr. Conrad Fraider, an orthopedic specialist contracted by Prison

Health Services (“PHS”). Dr. Fraider concluded that Mendez’s injury was cosmetic in

nature and self-healing, and decided not to take an x-ray of the afflicted area or administer

an MRI. Mendez alleges that he visited another physician several months later for a

second opinion, and at that time received an x-ray that revealed a ruptured bicep tendon,

rotator cuff problems, bone spurs in the right shoulder, and problems with the shoulder

ball and socket. Mendez states that he continues to experience pain and that corrective

surgery is no longer a viable option. He claims that he would not be experiencing these

problems had he received proper treatment from prison medical personnel.

       In 2005, Mendez filed suit under 42 U.S.C. § 1983 against the Pennsylvania

Department of Corrections (“DOC”), PHS, Dr. Fraider, and Dr. Mark Baker, another

physician affiliated with PHS, alleging that each defendant violated Mendez’s Eighth

Amendment rights by exhibiting deliberate indifference to his serious medical needs.

Each defendant moved to dismiss the complaint. Mendez then filed a motion to amend

his complaint to include more specific allegations against Dr. Baker, who allegedly

examined Mendez’s injury prior to Dr. Fraider. The matter was referred to a Magistrate

                                             2
Judge, who issued a Report and Recommendation (“R&R”) advising the District Court to

deny Mendez’s motion to amend as futile and grant the defendants’ motions to dismiss.

The District Court adopted the R&R in its entirety and ordered the case dismissed.

Shortly thereafter, Mendez submitted untimely objections to the Magistrate Judge’s

findings, which the District Court considered and rejected. Mendez then filed a “motion

to sustain complaint,” which was denied by the District Court. Mendez has appealed the

District Court’s order adopting the R&R. We have jurisdiction under 28 U.S.C. § 1291.

Because this Court has granted Mendez leave to proceed in forma pauperis, we must

dismiss the appeal if it lacks an arguable basis in law or fact. See 28 U.S.C. §

1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because Mendez is

proceeding pro se, we will liberally construe his pleadings. Alston v. Parker, 363 F.3d

229, 234 (3d Cir. 2004).

       We agree with the R&R that the Eighth Amendment claims against Dr. Fraider and

Dr. Baker fail because Mendez’s allegations fall short of demonstrating deliberate

indifference. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Mendez does not

allege that the defendants intentionally refused to provide treatment or failed to exercise

medical judgment; he merely disputes the correctness of the medical decisions that were

made during the course of his treatment. At most, the alleged conduct evidences

professional negligence, which is not actionable as a constitutional violation. See

Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d

Cir. 1987) (“[M]ere allegations of malpractice do not raise issues of constitutional import

                                             3
. . . [n]or does mere disagreement as to the proper medical treatment support a claim of an

eight amendment violation.”). The R&R also correctly concluded that Mendez has not

stated a claim against PHS because the complaint does not indicate that this party had any

direct involvement in the alleged wrongful conduct, and respondeat superior is not a

recognized basis for liability under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988). Finally, Mendez’s claim against the DOC fails because a state

agency is not a proper party in a § 1983 action. See Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 71 (1989); Latessa v. New Jersey Racing Comm’n, 113 F.3d 1313,

1316 n.2 (3d Cir. 1997). Moreover, the Eleventh Amendment precludes Mendez from

recovering money damages from a state agency such as the DOC. See Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).

       Because Mendez has failed to set forth allegations sufficient to state an Eighth

Amendment claim, the District Court correctly dismissed the entire complaint and denied

Mendez’s motion to amend. Thus, his appeal lacks merit and we will dismiss it under 28

U.S.C. § 1915(e)(2)(B)(I).




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