CLD-070                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3746
                                       ___________

                                     JAMES DAVIS,
                                              Appellant

                                             v.

    SUPERINTENDENT SOMERSET SCI; DEPUTY SUPERINTENDENT GEHLMAN;
       HEALTH CARE ADMINISTRATOR DENISE THOMAS; HEALTH CARE
        ADMINISTRATOR GERALD PUSKAR; DR. MASON (P.T.); MICHELE
      SWANHART, R.N.; ALL DEFENDANTS EMPLOYED BY PENNSYLVANIA
       DEPARTMENT OF CORRECTIONS AT SOMERSET; JOHN DOE PUBLIC
                    EMPLOYEE INSURANCE PROVIDER
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-14-cv-00024)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

        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
                                  December 23, 2014
        Before: FUENTES, GREENAWAY, JR. and VANASKIE, Circuit Judges

                             (Opinion filed: January 7, 2015)
                                       _________

                                        OPINION*

                                        _________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       James Davis appeals from the District Court’s dismissal of his complaint with

prejudice. Because his appeal does not present a substantial question, we will summarily

affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Davis’s amended complaint, removed from state court, alleged violations of his

rights under the First and Eighth Amendments. According to Davis, he was an inmate at

the State Correctional Institution at Somerset (“SCI Somerset”) on December 17, 2011,

when he slipped and fell on ice at the entrance to his housing unit. Davis suffered

injuries to his right knee and right shoulder and was taken to the Somerset Hospital for

treatment. He alleged that the hospital recommended he be immediately referred to an

orthopedic physician and returned to the hospital to have an M.R.I., but SCI Somerset’s

Health Care Administrator “chose an alternative treatment,” including physical therapy

with Defendant Mason. Davis alleged that Mason prescribed weightlifting exercises that

caused Davis further injury, and that although Davis told Mason that the weightlifting

was extremely painful to him, Mason nevertheless insisted that Davis continue the

exercises. Davis further alleged that he told Defendant Nurse Swanhart that he was in

extreme pain, but she refused him treatment. Davis then submitted to prison officials a

written request to be seen by the doctor, but the request slip was returned to him with a

note from Defendant Puskar, who instructed Davis to wait for a response to a grievance

that Davis had earlier filed. Davis alleged that Puskar’s response was made in retaliation

for Davis’s grievance.
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       After Defendant Mason and Defendants Gehlmann, Thomas, Puskar, and Rozum

filed motions to dismiss, the Magistrate Judge recommended that the complaint be

dismissed as to all defendants for failure to state a claim. The District Court adopted the

Magistrate Judge’s Report and Recommendation and concluded that Davis’s amended

complaint had failed to allege even negligence as to any defendant, much less deliberate

indifference. The District Court ordered that the complaint be dismissed without further

leave to amend.

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

dismissal for failure to state a claim under a plenary standard. See Lazaridis v. Wehmer,

591 F.3d 666, 670 (3d Cir. 2010) (per curiam). Dismissal is appropriate where the

pleader has not alleged “sufficient factual matter, accepted as true, to state a claim that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We may affirm on

any basis supported by the record. See Brown v. Pa. Dep’t of Health Emergency Med.

Servs., 318 F.3d 473, 475 n.1 (3d Cir. 2003).

       To state a claim for deliberate indifference to a serious medical need in violation

of the Eighth Amendment, a plaintiff must show 1) deliberate indifference by prison

officials to 2) the prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97,

106 (1976). “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). In order to find deliberate indifference, “the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious harm

                                               3
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Where 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). Claims of negligence or medical malpractice do not constitute deliberate

indifference. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

       We agree with the District Court that the allegations contained in Davis’s

complaint do not plausibly state a claim that the defendants acted with deliberate

indifference to Davis’s medical needs. With respect to the non-medical defendants

Thomas, Rozum, and Gehlmann, Davis failed to allege that these defendants were

personally involved with or had knowledge of his medical care. Davis apparently sought

to impose liability based solely on these defendants’ supervisory positions, but liability in

a civil rights action must be predicated upon personal involvement, not on the basis of

respondeat superior. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981).

       With respect to Puskar, his sole involvement appears to be in reviewing Davis’s

note requesting to see the doctor and referring him to the grievance process. As

nonmedical personnel, Puskar is entitled to presume the competence of medical staff in

treating a prisoner, meaning that his conduct cannot, without much more, amount to

“deliberate indifference.” See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).




                                              4
       Davis also failed to state a retaliation claim against Puskar. “A prisoner alleging

retaliation must show (1) constitutionally protected conduct, (2) an adverse action by

prison officials sufficient to deter a person of ordinary firmness from exercising his

constitutional rights, and (3) a causal link between the exercise of his constitutional rights

and the adverse action taken against him.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.

2003) (internal quotation marks and citations omitted). Davis has arguably engaged in

conduct protected by the First Amendment by filing a grievance concerning the medical

care he was receiving.1 However, the alleged retaliation – Puskar’s advising Davis to

await the outcome of his ongoing grievance before filing a repetitive request – does not

plausibly rise to the level of “adverse action” because it would not be sufficient to deter a

person of ordinary firmness from exercising his First Amendment rights. See McKee v.

Hart, 436 F.3d 165, 170-71 (3d Cir. 2006).

       We also agree with the District Court’s decision to dismiss Davis’s claims against

medical defendants Mason and Swanhart. Davis’s allegations regarding the weightlifting

regime prescribed by Mason constitute at most a disagreement with the type of care he

was provided and do not support a claim of deliberate indifference. See Monmouth Cnty.

Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). With respect to

Swanhart, Davis’s allegation that she did not sufficiently react to his complaint of pain

1
  In recommending the dismissal of Davis’s retaliation claim, the Magistrate Judge relied
on the lack of a causal link between Davis’s grievance and Puskar’s response. We need
not decide that question here but observe that timing can be suggestive enough to supply,
for purposes of 12(b)(6), the required causal link. See Jalil v. Avdel Corp., 873 F.2d 701,
708 (3d Cir. 1989).
                                              5
does not substitute for a plausible allegation that she actually knew Davis required

medical treatment other than that which he was already receiving. See Schieber v. City

of Phila., 320 F.3d 409, 421 (3d Cir. 2003).

       With regard to Davis’s claims against Rozum and Gehlmann concerning the

maintenance of the walkways, Eighth Amendment liability requires “more than ordinary

lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312,

319 (1986). Here, the allegations contained in the amended complaint, taken as true,

assert a simple negligence claim at most, and thus do not state a claim of a constitutional

violation under the Eighth Amendment.

       Finally, under the circumstances presented here, where the plaintiff has already

amended his complaint once, the District Court was not obliged to give Davis additional

leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).




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