DLD-167                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3668
                                       ___________

                               GREGORY ALTENBACH,
                                               Appellant
                                       v.

           TONI IANUZZI, Nurse Practitioner; PHYSICIAN JOHN LISIAK;
                          PHYSICIAN JOSE BOGGIO;
              PHYSICIANS ASSISTANT NICHOLLE BOGUSLAW;
    KAREN HOLLY, Registered Nurse Supervisor; PHYSICIAN ANDREW J. DANCHA;
                  PHYSICIANS ASSISTANT MARIA LEAHY;
          WEXFORD HEALTH SOURCES INC, Prison Healthcare provider
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-14-cv-01932)
                      District Judge: Honorable Robert D. Mariani
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    March 3, 2016
        Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges


                              (Opinion filed: April 7, 2016)
                                      _________

                                        OPINION*
                                        _________
PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Gregory Altenbach appeals from the judgment of the United

States District Court for the Middle District of Pennsylvania in his § 1983 action. As the

appeal does not present a substantial question, we will summarily affirm the decision of

the District Court.

                                              I.

       Altenbach initiated this § 1983 action in 2014 against various medical personnel

from SCI-Mahanoy and SCI-Benner Township, alleging that these Defendants denied

him adequate medical care in connection a shoulder injury he suffered while exercising.

       Altenbach claims that he was initially treated at sick call on May 22, 2013 by

Defendant Nurse Practitioner Tony Ianuzzi, complaining of pain, stiffness, and weakness

in his right shoulder resulting from an exercise injury. Altenbach claims that he had a

fist-sized depression in his shoulder, and that Ianuzzi diagnosed it as a strain and

prescribed muscle rub and Naprosyn. Altenbach returned to sick call on June 12, 2013

with his shoulder “feeling worse” and requested stronger medication, treatment by a

doctor, and an order that he be handcuffed only in the front. Altenbach claims Ianuzzi

denied all of these requests, stating they were “not needed.”

       Altenbach returned again on June 27, 2013, and was seen by Defendant Physician

Jose Boggio. Altenbach claims that Boggio denied the same requests he made two weeks

earlier to Ianuzzi, but that Boggio acknowledged that his shoulder has “either atrophied

or shriveled up somewhere it shouldn’t be.” Altenbach returned two days later and was

seen this time by Defendant Physician Assistant Nicholle Boguslaw, at which time he
                                              2
offered the same complaints and requests previously made to Boggio and Ianuzzi.

Boguslaw noted that his shoulder “may have a deformity” and indicated he would be

“pulled out to triage for further evaluation.”

       On July 7, 2013, Altenbach was treated again by Ianuzzi, at which time Altenbach

renewed his complaints of pain and stiffness and also renewed his previous requests.

Ianuzzi allegedly advised him that there was “no need” for these requests because he

would be x-rayed soon and provided stronger medication. Altenbach was x-rayed five

days later and the report indicates the presence of “bone demineralization,” but concludes

that “there is no radiographic evidence of acute disease in the right shoulder.” Ten days

after the x-rays, Altenbach was again seen by Ianuzzi, at which time Ianuzzi allegedly

denied Altenbach’s renewed requests and advised him that the x-rays did not reveal a

trauma injury. Ianuzzi administered a steroid injection the following day.

       Four days after receiving the injection, on July 27, 2013, Altenbach was seen by

Defendant Physician John Lisiak and advised Lisiak of his increasing pain, his belief that

currently prescribed medications were not working, and his desire to be handcuffed only

in the front. Lisiak examined Altenbach’s shoulder and noted an “apparent atrophy . . .

below the scapula,” and also increased Altenbach’s dose of Naprosyn.

       Less than two weeks later, Altenbach was seen again by Ianuzzi, who again denied

his previous requests, but advised Altenbach that he might be referred to physical

therapy. The next day Ianuzzi prescribed a liquid pain-killer. Four days later, Dr. Lisiak

re-examined Altenbach and allegedly advised him that potential treatments were limited
                                                 3
because the injury was “months old,” and that an MRI, not an x-ray, should have been

ordered because the “problem was related to muscle, not the bone.” This statement is not

present in the medical records.

       A week later, on August 17, 2013, Altenbach was treated again by Boguslaw, who

observed a “muscular deformity of [the] scapular region” and noted that “PT [was]

ordered though RHU states is difficult to transport.” She also noted: “consider MRI if

atrophy not improved [with] PT.” On August 25, 2013, Boguslaw noted that “PT has

been denied per inmate” and prescribed Altenbach Trixacin, a pain-relieving cream.

Altenbach was transferred to SCI-Benner Township on September 2, 2013.

       Ten days after arriving, Altenbach went to sick call and was seen by Defendant

Physician Andrew Dancha, who noted a “concave defect in scapular region” and

indicated he would review Altenbach’s records with Defendant Physician Assistant Maria

Leahy. The next day Altenbach was examined by Leahy, who observed “muscle

atrophy” and recommended physical therapy and a possible MRI. According to

Altenbach, she also advised him that “because [SCI] Mahanoy didn’t actually do

anything to treat the problem . . . the length of time that’s passed since the actual injury . .

. severely limits treatment.” There is no record of this statement in the medical records.

       About forty days later, on October 23, 2013, Altenbach was seen by a physical

therapist, who observed “obvious muscle atrophy,” and issued Altenbach a physical

therapy plan. Three weeks later, Altenbach went to sick call and advised Defendant

Physician Assistant Laura Dunkle that the physical therapy was ineffective. Dunkle
                                               4
advised him he would be referred to an orthopedic specialist and for stronger pain meds.

A week later, on November 21, 2013, Altenbach was again seen by Dancha, who

allegedly advised Altenbach that his injury was permanent, but prescribed Prednisone and

Nortriptyline, an anti-depressant. Dancha also administered a pain-killing injection on

December 12, 2013.

       On February 14, 2014, Altenbach was seen again by Leahy, who advised

Altenbach to continue the physical therapy regimen and allegedly advised him “the range

of motion will possibly correct itself.” On March 17, Dunkle prescribed Zostrix cream

for pain and advised Altenbach that “some discomfort is likely no matter what pain meds

are issued.” On April 9, 2014, Dancha examined Altenbach and noted the depression in

his shoulder was still present and prescribed Motrin for pain. Dancha saw Altenbach

again on May 18, 2014, and Dancha noted that the Nortriptyline was helping his

discomfort.

       On July 1, 2014, Dancha ordered an MRI, which was performed on July 7, 2014.

The radiologist reviewing the MRI found that “the supraspinatus muscle is moderately

severely atrophied.” Altenbach alleges that Dancha later reported, after reviewing the

MRI results, that he had an “uncommon” nerve injury in his shoulder, and his treatment

prognosis would have been better had the injury been detected earlier. This statement is

not present in any of the medical records. On July 22, 2014 Dancha ordered another

physical therapy consultation, and on August 20, 2014, Altenbach was seen by a physical

therapist, who allegedly advised him that his “shoulder looked better than the first time.”
                                             5
On October 30, 2014, Dancha referred Altenbach for an Electromyogram study, which

was performed on January 7, 2015. The report concluded that “this study is consistent

with a significant, active right suprascapular neuropathy, especially involving the branch

to the infraspinatus muscle.”

       In the meantime, on July 4, 2013, Altenbach began filing numerous grievances

related to his medical treatment, many of which Defendant Resident Nurse Supervisor

Karen Holly denied. Altenbach does not allege that Holly was otherwise personally

involved in his treatment, or treatment decisions.

       On September 25, 2015, the District Court granted Holly’s 12(b)(6) motion to

dismiss, finding, among other things, that she lacked sufficient personal involvement in

the complained-of conduct. In the same order, the Court also granted the Medical

Defendants’1 motion for summary judgment, finding that they provided Altenbach

substantial care and that his claims amount to an improper attempt to second-guess the

adequacy of treatment. Altenbach filed a timely notice of appeal from this order on

October 29, 2015.2

                                            II.

        We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

dismissal under Rule 12(b)(6) using the same test that the District Court should have

applied and ask whether the complaint contains “sufficient factual matter; accepted as

1
 “Medical Defendants” refers to all defendants except Karen Holly.
2
 Altenbach delivered his notice to prison officials at SCI-Camp Hill on October 23,
2015.
                                             6
true; to state a claim to relief that is plausible on this face.” Fantone v. Latini, 780 F.3d

184, 186-193 (3d Cir. 2015) (citing Ashcroft v. Iqbal; 556 U.S. 662 678 (2009)). We also

exercise plenary review over the District Court’s award of summary judgment and apply

the same test the District Court should have utilized – whether the record “shows that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). In

applying this test, we must accept evidence presented by the non-movant as true and

draw all justifiable factual inferences in his favor. Id. We may summarily affirm any

decision of the District Court where “it clearly appears that no substantial question is

presented or that subsequent precedent or a change in circumstances warrants such

action.” 3d Cir. I.O.P. 10.6 (2015).

       The District Court accurately observed that the complaint fails to set forth any

specific allegations against Defendant Holly, let alone allegations that she was personally

involved in any of Altenbach’s treatment, or treatment decisions. To the extent that

Altenbach’s claim is based on Holly’s failure to direct or supervise subordinate medical

staff, the District Court correctly dismissed it as an improper theory of liability. See

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held

liable for the unconstitutional conduct of their subordinates under a theory of respondeat

superior.”). To the extent that his claim is based on Holly’s alleged failure to

satisfactorily resolve his grievances, the District Court was similarly correct in dismissing

it. See Rogers v. United States, 696 F. Supp. 2d 472, 488 (W.D. Pa. 2010) (citing Rode
                                               7
v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988)) (“If a grievance official's only

involvement is investigating and/or ruling on an inmate's grievance after the incident

giving rise to the grievance has already occurred, there is no personal involvement on the

part of that official.”). Having determined that Holly lacks sufficient personal

involvement in Altenbach’s medical treatment claim, we conclude that the District Court

properly declined to exercise supplemental jurisdiction over Altenbach’s state law claim

against her.

       In granting the Medical Defendants’ motion for summary judgment, the District

Court accurately observed that Altenbach received substantial medical treatment for his

shoulder injury at both correctional facilities and accurately characterized his claim as

“nothing more than his subjective disagreement with that medical care.”

       Regarding the adequacy of the treatment, Altenbach received a number of

continuous and responsive medical interventions for more than a year including pain

medications, steroid injections, x-rays, an MRI, physical therapy, and ultimately an

Electromyogram, which revealed a nerve injury. These responses were predicated on the

reasonable professional opinions of the Defendants, seemingly confirmed by the MRI

results, that Altenbach’s injury was only muscular in nature. To the extent Altenbach

claims that this particular course of treatment was ineffective, this amounts to “[m]ere

disagreement as to the proper course of medical treatment,” which is insufficient to state

an Eighth Amendment claim. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (citing

Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
                                              8
Cir.1987)); See also Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978) (“Where the

plaintiff has received some care, inadequacy or impropriety of the care that was given

will not support an Eighth Amendment claim.”).

       Concerning the timeliness of the interventions, the gist of Altenbach’s claim is that

if his nerve injury had been detected earlier along, his treatment plan, and prognosis,

might have been different. Altenbach acknowledges, however, that the purported nerve

injury revealed by the Electromyogram was “uncommon,” so the failure of the

Defendants to recognize the possibility of such an injury, and order an Electromyogram

study to diagnose it, amounts, at worst, to medical malpractice, which is not actionable

under the Eighth Amendment. Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993)

(“[M]edical malpractice does not become a constitutional violation merely because the

victim is a prisoner.”).

       The earliest indication of a nerve injury in the medical records is found in the

Electromyogram study report issued on January of 2016. Even if we credit Altenbach’s

unsubstantiated allegation that Dancha reported the possibility of a nerve injury in July of

2014 – about four months before he ordered the Electromyogram study – his claim would

still fail because he has offered no “verif[ied] medical evidence . . . to establish the

detrimental effect of [the] delay,” as he must do to support a delayed treatment claim.

Hill v. Dekalb Rg'l Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994) (overruled

on other grounds). He has offered, instead, only bare allegations that his prognosis might

have been different had the injury been earlier detected. Such speculation, without
                                               9
additional evidentiary support, is insufficient to survive a motion for summary judgment. 3

See Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (“[A] non-moving

party may not avert summary judgment by baldly contesting his adversary's factual

allegations.”); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968)

(Plaintiff cannot rest on his allegations to get to a jury without “any significant probative

evidence tending to support the complaint.”).

       Regarding the denial of Altenbach’s requests to be cuffed only in the front, we

find no error in the District Court’s determination that he failed to establish a serious

medical need in connection with this request. As the District Court accurately observed,

several medical notes indicated that he had full range of motion and was exercising and

doing pushups at the time of the requests. Having determined that the District Court

properly dismissed the Eighth Amendment claim against the Medical Defendants, we

conclude that the Court properly declined to exercise jurisdiction over Altenbach’s state

law claim.

3
  In the District Court, Altenbach cited LeMarbe v. Wisneski, 266 F.3d 429, 440 (6th Cir.
2001) for the proposition that a “failure to make timely referral to [a] specialist or tell [a]
patient to seek one out” constitutes deliberate indifference. LeMarbe, however,
addressed a physician’s failure to immediately refer a prisoner to a specialist, following
gallbladder surgery, when the physician observed five liters of bile in the prisoner’s
abdomen. In addition, the plaintiff there submitted an affidavit in opposition to
defendant’s motion for summary judgment from a physician who swore that “anyone
with a medical education and [ ] most lay people who encountered five liters of bile in a
patient's abdomen would have known that the bile in LeMarbe's abdomen was due to a
leak and that such condition posed a substantial risk of serious harm to LeMarbe if the
leak was not closed or stopped before permanent damage occurred.” Id. at 438 (emphasis
in original). Altenbach has submitted no similar evidence here to indicate such a pressing
need for immediate referral.
                                              10
Accordingly, we will summarily affirm the decision of the District Court.




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