BLD-139                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-4654
                                  ___________

                             JEFFREY D. TURNER,
                                               Appellant

                                        v.

          J. LEGGETT, Correctional Officer IV at SCI Fayette; DR. JIN;
         MICHELLE LUCAS; JOHN MCANANY, CRNS at SCI Greene;
    NEDRA GREGO, RN at SCI Greene; DORINA VARNER, Chief Grievance
        Coordinator at Central Office; DR. HERBIK, Doctor at SCI Fayette;
    R. TRETINIK, CHCA at SCI Fayette; CHRIS MYERS, Physican Assistant at
         SCI Fayette; S.BERRIER, CRNS at SCI Fayette; R .J. GODINES,
           Correctional Officer #1 at SCI Fayette; DR.RONALD LONG,
         Doctor st SCI-Smithfield; B. MALSCH, CO #1 at S.C.I. Fayette;
            C.O. VASBINDER, Correctional Officer I at S.C. I. Fayette;
              SGT. ASCENIO, Correctional Officer II at S.C.I. Fayette
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                           (D.C. Civil No. 09-cv-01568)
                District Judge: Honorable David Stewart Cercone
                   ____________________________________
      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 17, 2011
      Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                          (Opinion filed: April 6, 2011)
                                  _________

                                   OPINION
                                   _________
PER CURIAM

       Jeffrey Turner filed suit against the defendants for alleged violations of his civil

rights in state correctional institutions where he is or has been held as a prisoner. One set

of claims in his second amended complaint related to the medical treatment he received

for his broken toe. Another set of claims related to his treatment for a rash or hives.

Turner also complained about the cause and treatment of coughing, headaches, and pain

in his head. He made allegations about wrong, inadequate, and improperly administered

medications and treatments. He also contended that the defendants denied him food or a

prescribed “snack bag” to take with his medicine, which caused gas and similar

unpleasantries. Turner complained about not being permitted to see different specialists,

including the denial of his request to see an otolaryngologist again.

       Turner’s other allegations relate to his exposure to environmental tobacco smoke

(“ETS”). More specifically, on one day in November 2009, when Turner was in the

exercise yard, a guard smoked a cigarette. On another day in March 2010, two other

guards were smoking in the yard and refused to stop on Turner’s request. At one point,

instead of snuffing out their cigarettes, they tossed them, still-burning, on the ground. In

the course of setting forth his allegations, Turner mentioned that he had filed grievances

(and attached a few to his complaint); he claimed without factual support that one

defendant denied his grievances in a racially discriminatory manner.

       The defendants, proceeding in two groups, filed motions to dismiss the second

amended complaint. Ten correctional employees identifying themselves as the DOC
                                              2
defendants argued, among other things, that Turner failed to allege the personal

involvement of many of them, failed to state a claim upon which relief could be granted,

and failed to exhaust his administrative remedies. In support of their argument about

Turner’s failure to exhaust, they presented approximately 100 pages of declarations and

grievances and their resolutions. In their motion, the medical defendants argued that no

claims could survive against one defendant who was not alleged to be personally

involved and that Turner had failed to state a claim upon which relief could be granted

against any of them. Referring to the few grievances attached to the complaint and those

submitted by the DOC defendants, the medical defendants also argued that Turner’s

claims were barred by his failure to exhaust his administrative remedies.

       The Magistrate Judge reviewed all of the exhibits submitted by the DOC

defendants (including some additional exhibits that she had requested from them) and

concluded that any claims that Turner had not timely appealed to final review had been

defaulted. However, the Magistrate Judge also described the grievances found to be

exhausted, which largely corresponded to Turner’s medical claims described above.

Considering these claims and what the Magistrate Judge described as a record of

extensive medical treatment, the Magistrate Judge stated that Turner presented a case

about disagreements over the appropriate course of treatment, which is not an actionable

Eighth Amendment violation. The Magistrate Judge also recommended that the ETS

claim be dismissed for failure to state a claim. Turner objected to the report and

recommendation. In response to the failure to exhaust claim, he directed the District
                                             3
Court to the three grievances he had submitted with his complaint. He otherwise focused

on his ETS claim.

       The District Court overruled Turner’s objections and adopted the report and

recommendation as its opinion, augmenting it in the following respects. In dismissing

the complaint, the District Court emphasized that Turner had not alleged any facts that

rose to the level of a cognizable Eighth Amendment claim. The District Court held that

Turner’s allegations fell short of stating a plausible claim of deliberate indifference to a

serious medical need. The District Court also noted that Turner’s objections and exhibits

demonstrated the defendants’ attentiveness to his medical needs. The District Court also

further explained how Turner failed to state an ETS claim.

       Turner appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is

plenary. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Upon review, we will

affirm the District Court’s judgment because no substantial issue is presented on appeal.

See L.A.R. 27.4; I.O.P. 10.6.

       We first consider whether the District Court erred in converting the DOC

defendants’ motion to dismiss into a motion for summary judgment. To decide a motion

to dismiss, a court generally should consider “only the allegations in the complaint,

exhibits attached to the complaint, matters of public record, and documents that form the

basis of a claim.” Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004). If a court

considers other matters, a motion to dismiss should be converted to a motion for

summary judgment, see Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
                                              4
1192, 1197 (3d Cir. 1993), and the court must provide notice and an opportunity to

oppose the motion, see Hancock Industries v. Schaeffer, 811 F.2d 225, 229 (3d Cir.

1987). However, the failure to give notice is harmless error if there is no set of facts on

which a party may recover. See id.

       Here, the District Court explicitly considered “the record”: copies of Turner’s

grievances and appeals, the Department of Corrections’ responses to them, and

declarations submitted by the defendants. However, any error was harmless, because, as

the District Court explained in ruling on all the claims in the complaint (including those it

held to be procedurally defaulted), Turner did not state a claim upon which relief can be

granted.

       Turner’s Eighth Amendment claims were not actionable. The bar to plead an

Eighth Amendment violation is high – “[o]nly ‘unnecessary and wanton infliction of

pain’ or ‘deliberate indifference to the serious medical needs’ of prisoners [is] sufficiently

egregious to rise to the level of a constitutional violation.” Spruill v. Gillis, 372 F.3d

218, 235 (3d Cir. 2004). Violations include the intentional infliction of pain on a

prisoner; the denial of reasonable requests for medical treatment where the denial exposes

the prisoner to undue suffering or the threat of tangible residual injury; and the intentional

refusal to provide care in cases where the need for medical care is known. See id. The

medical condition must be serious; and the prison officials must be deliberately

indifferent to it. See id. at 236. However, neither allegations of medical malpractice nor


                                               5
a disagreement about a course of treatment establishes a constitutional violation. See id.

at 235.

          Turner, despite amending his complaint two times, did not meet the pleading bar.

Even if we assume that he described serious medical needs, he did not allege deliberate

indifference to them. Instead, he listed his disagreements with various courses of

treatment prescribed for him in prison. For instance, after conducting an exam and

ordering an X-ray, a doctor concluded that the proper course of treatment for Turner’s

broken toe was to allow it to set on its own. Turner disagreed with the doctor’s

conclusion; he apparently wanted it to be set in a cast. In relation to a rash, he disagreed

with a decision to discontinue an ointment and wanted a second special biopsy of his

skin. (Also, in relation to the biopsy, he seemingly wanted it more to show eligibility to

participate in some sort of class action suit than to address a medical need.) In other

claims, he said that he was receiving the “wrong treatment,” and explained how he

disagreed with doctors’ decisions to eliminate or change other medications. He also took

issue with medical decisions about visits to specialists. Turner did not sufficiently plead

that he has been denied medical care (despite some conclusory allegations that he was

denied care). Instead, in addition to showing that he based his claim on disagreements

about his treatment regimens, Turner’s allegations revealed many trips to prison

infirmaries and many visits with doctors (including at least one specialist) and other

medical personnel. In short, Turner did not allege that the defendants were deliberately

indifferent to any serious medical needs.
                                              6
       Turner also did not state a claim based on ETS exposure. Liability based on

exposure to ETS requires proof of (1) exposure to unreasonably high levels of ETS

contrary to contemporary standards of decency; and (2) deliberate indifference by the

authorities to the exposure to ETS. Helling v. McKinney, 509 U.S. 25, 35 (1993).

Turner complained of occasional ETS exposure in the outside recreational yard, which is

not an actionable claim. Compare, e.g., Helling, 509 U.S. at 35 (holding that bunking

with a cellmate who smoked five packs of cigarettes per day exposed an inmate to an

unreasonable risk of future harm from ETS exposure), and Atkinson v. Taylor, 316 F.3d

257, 259 (3d Cir. 2003) (holding that a prisoner who claimed that he had shared a cell

with constant smokers for many months stated a claim for a violation of a clearly

established right) with Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001)

(holding that sitting near some smokers sometimes is not an unreasonable exposure to

ETS) and Pryor-El v. Kelly, 892 F. Supp. 261, 267 (D.D.C. 1995) (dismissing an ETS

claim in which the plaintiff alleged “only that various unnamed inmates and prison

officials smoke ‘in the TV room, games room, and the letter writing room’”).

       In short, after reviewing all of the allegations in Turner’s complaint, including the

claims discussed in more detail above, we agree with the District Court’s conclusion that

Turner did not raise a plausible claim for relief. Accordingly, we will affirm the District

Court’s judgment.




                                             7
