BLD-439                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 13-2454
                                  ___________

                           GREGORY L. GOULD, JR.,
                                         Appellant

                                        v.

  JOHN WETZEL, D.O.C. Sec. of Cor.; Super. MARIROSA LAMAS; DORINA
VARNER, Grievance Officer; T. WILLIAMS, Head of Rockview Medical Department;
                   JEREMY TIPTON, Physicians Assistant
                 ____________________________________

                  On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (M.D. Pa. Civil No. 1:12-cv-00853)
                  District Judge: Honorable William W. Caldwell
                   ____________________________________

  Submitted for Possible Dismissal for Lack of Jurisdiction and 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
                                September 26, 2013

    Before:   HARDIMAN, GREENAWAY, JR., and SCIRICA, Circuit Judges

                         (Opinion filed: October 21, 2013)
                                    _________

                                    OPINION
                                    _________
PER CURIAM


       Gregory L. Gould, Jr., appeals pro se from the District Court’s order granting a

motion to dismiss filed by Secretary John Wetzel, SCI-Rockview Superintendent

Marirosa Lamas, Chief Grievance Officer Dorina Varner, and Corrections Health Care

Administrator T. Williams (the “DOC Defendants”) and another filed by Physician

Assistant Jeremy Tipton. Because the appeal presents no substantial question, we will

summarily affirm the District Court’s judgment.

                                              I.

       Gould, a prisoner at SCI-Rockview in Bellefonte, Pennsylvania, filed a pro se civil

rights complaint in the District Court against the DOC Defendants and Tipton. He

asserted that he suffers from three hernias which cause him physical and mental pain.1

Gould asserted that he has had to change his diet as a result of the hernias in order to

avoid defecating blood or having gas (which causes him pain). Gould further asserted

that he is constantly sick, claiming that the hernias are compromising his immune system,

and that he is in fear for his life. Gould, without providing any specific dates, further

asserted that an incident occurred where he bled from his rectum for two days,

necessitating a visit to sick call. During this visit, Gould asserted that Tipton “put his

finger into the plaintiff’s anus, nowhere near plaintiff’s hernias, charged the plaintiff $5,


1
  Gould stated that he has a hernia in his stomach the size of a baseball, one in the left
side of his intestines the size of a handball, and a smaller one forming on the right side of
his intestines.
                                              2
and told the plaintiff he was alright!” In his complaint, which invoked 42 U.S.C. § 1983,

Gould asserted that the DOC Defendants and Tipton were liable for violating his Eighth

Amendment rights.

       After the submission of the motions to dismiss, Gould filed responses which

contained additional factual assertions. The District Court entered a memorandum and

order granting the motions to dismiss. It concluded that Gould had failed to state a viable

claim that the DOC Defendants knew or should have known that the medical treatment he

was receiving was somehow improper. As for Tipton’s motion to dismiss, the District

Court noted that Gould’s specific factual assertions concerned only one incident of

treatment at a single visit. The District Court concluded that Gould’s description of

events on that one occasion failed to state a viable claim. The District Court further held

that on the larger issue of Tipton’s alleged indifference to the treatment of Gould’s

hernias over the course of Gould’s incarceration, Gould also failed state a claim. The

District Court noted that Gould did not allege that his current medical treatment was

unacceptable or made with disregard to his health due to Tipton’s budgetary concerns.

The District Court provided Gould until April 18, 2013, to amend his complaint

regarding his allegations against Tipton. On May 15, 2013, without having amended his

complaint, Gould timely appealed the District Court’s order.

                                            II.

       As Gould did not amend his complaint within the time given by the District Court

and instead sought to appeal its dismissal, we have appellate jurisdiction pursuant to 28
                                             3
U.S.C. § 1291. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992).

We exercise plenary review over the District Court’s order granting a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In conducting this

review, we accept the truth of Gould’s well-pleaded factual allegations and draw

reasonable inferences in his favor. See Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184

(3d Cir. 2009) (per curiam). However, a complaint must still “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

                                              III.

       The District Court correctly granted both motions to dismiss. As to the DOC

Defendants, Gould failed to allege that any of them were personally involved in his

medical treatment. Rather, Gould sought to impose liability on account of the DOC

Defendants’ supervisory or managerial roles. However, liability under § 1983 requires a

“personal involvement” in the deprivation of a constitutional right. See, e.g., Argueta v.

U.S. Immigration & Customs Enforcement, 643 F.3d 60, 76 (3d Cir. 2011).

Additionally, prison officials who are not physicians are entitled to defer to the medical

judgment of staff physicians that they know are treating a prisoner. See Durmer v.




                                               4
O’Carroll, 992 F.2d 64, 69 (3d. Cir. 1993). Thus, the District Court properly granted the

DOC Defendants’ motion to dismiss.2

       To state a viable Eighth Amendment claim against Tipton, Gould needed to allege

deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106

(1976).3 “To act with deliberate indifference to serious medical needs is to recklessly

disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d

Cir. 2009). For instance, a plaintiff may make this showing by establishing that the

defendants “intentionally den[ied] or delay[ed] medical care.” Id. (quotation marks

omitted). However, “[w]here a prisoner has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims which sound in state tort

law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)

(internal quotation marks omitted).

       Gould has failed to allege sufficient facts to state a plausible claim. His

allegations concerning the one specific incident referred to in the complaint do not

suggest deliberate indifference. Gould simply offered no reason why the digital

examination of Gould was a medically inappropriate response to his complaints of rectal


2
  We further agree with the District Court decision to not provide Gould an opportunity to
amend his complaint with regard to the DOC Defendants, as any amendment would be
futile.
3
  We assume without deciding that Gould’s hernias constitute a serious medical need.
Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987).
                                              5
bleeding. Gould’s allegations regarding Tipton’s treatment on this single visit failed to

state a plausible claim of medical indifference.

       On the larger question of Tipton’s treatment of Gould throughout his

incarceration, the complaint also failed to allege sufficient facts to state a plausible claim.

In Gould’s response to Tipton’s motion to dismiss, Gould made vague assertions that

budgetary concerns improperly influenced Tipton’s choice of treatment for Gould’s

hernias. However, Gould did not provide any facts concerning what treatment he has

received. Additionally, the mere assertion that Tipton considered cost in treating Gould’s

hernias does not suffice to state a claim, as prisoners do not have a constitutional right to

limitless medical care. See Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir. 1997).

Further, Gould failed to assert sufficient facts to suggest that his concerns are more than a

mere disagreement over Tipton’s choice of treatment or, at most, allegations of

negligence or medical malpractice, which cannot constitute “deliberate indifference.”

See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Singletary v. Pa. Dep't of Corr.,

266 F.3d 186, 193 (3d Cir. 2001).

       The District Court properly gave Gould the opportunity to amend his complaint to

aver additional facts that would suggest that Tipton acted with deliberate indifference.

Gould chose instead to stand on his complaint. In the absence of more facts suggesting

constitutional indifference to his needs, the District Court was right to dismiss Gould’s

claim. See Fayette Cnty., 599 F.2d at 575 n.2.


                                               6
       For the reasons given, the District Court correctly granted the DOC Defendants’

and Tipton’s motions to dismiss. Because this appeal presents us with no substantial

question, we will summarily affirm the judgment of the District Court. See 3rd Cir. LAR

27.4 and I.O.P. 10.6.




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