ALD-261                                             NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                             No. 11-2460
                            ____________

                    JUSTICE RASIDEEN ALLAH,
                                        Appellant,
                               v.

       GEORGE HAYMAN, COMMISSIONER NEW JERSEY
         DEPARTMENT OF CORRECTIONS; MICHELE R.
          RICCI, ADMINISTRATOR NEW JERSEY STATE
               PRISON; JEFFREY BELL, ASSISTANT
         ADMINISTRATOR NEW JERSEY STATE PRISON;
        JASON PUGH, ADMINISTRATOR CORRECTIONAL
       MEDICAL SERVICES NEW JERSEY STATE PRISON;
           J. BETHEA, NURSE MEDICAL OMBUDSMAN
          CORRECTIONAL MEDICAL SERVICES; AHAB
       GABRIEL, PHYSICIAN CORRECTIONAL MEDICAL
       SERVICES; DEFILLIPPO, SUPERVISOR OF MENTAL
          HEALTH SERVICES FOR NEW JERSEY STATE
           PRISON AND OR CORRECTIONAL MEDICAL
      SERVICES AND OR UNIVERSITY OF MEDICINE AND
      DENTISTRY; STECKEL, HEAD OF SOCIAL SERVICES
         NEW JERSEY STATE PRISON; CRYSTAL RAUPP,
        SOCIAL WORKER FOR MANAGEMENT CONTROL
        UNIT; FARBER, PSYCHOLOGIST CORRECTIONAL
         MEDICAL SERVICES AND OR UNIVERSITY OF
          MEDICINE AND DENTISTRY; SUE STINGLER,
          NURSE; CORRECTIONAL MEDICAL SERVICES
               __________________________________

            On Appeal from the United States District Court
                   for the District of New Jersey
                    (D.C. Civ. No. 08-cv-01177)
                 District Judge: Anne E. Thompson
              __________________________________

 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
                           August 11, 2011

   Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges
                              (Opinion filed: August 25, 2011 )
                                      ____________

                                          OPINION
                                        ____________


PER CURIAM

       Appellant Justice Rasideen Allah, a New Jersey State prisoner, appeals the District

Court’s dismissal of his amended complaint. For the reasons that follow, we will dismiss

the appeal as lacking an arguable basis in fact or law, 28 U.S.C. § 1915(e)(2)(B)(i).

       Allah filed a civil action in the United States District Court for the District of New

Jersey against numerous defendants, alleging that his federal and state constitutional and

civil rights, and rights under New Jersey’s Administrative Code, had been violated.

Allah complained generally that Correctional Medical Services (“CMS”), which has

since been replaced as the health care provider for New Jersey’s state prisons, conducted

medical tests in dirty, open areas, and conducted medical interviews in public areas and

without regard to patient confidentiality. Allah alleged that his rights were specifically

violated when the defendants failed to provide him with his medical records, tried to

administer a tuberculosis skin test at his cell door, delivered lab test results to him at his

cell door and tried to talk to him about them, failed to properly monitor his high blood

pressure, and failed to treat his possible chronic kidney disease.

       Allah alleged that, between June 30, 2006 and December 30, 2006, he submitted

numerous requests to medical personnel for his medical records, which were ignored. On

May 22, 2007, Ms. Butler, a medical secretary, visited his cell and gave him a copy of his

lab results. She asked if he had any questions for her; Allah refused to discuss his

medical issues through his cell door. In late 2007 or early 2008, Dr. Allan Martin
                                             2
examined him and put him on blood pressure medications. Dr. Martin allegedly told

Allah that he had been diagnosed with high blood pressure much earlier, in 2002, and that

the physician who diagnosed the condition ordered that it be monitored. That same Dr.

Martin, however, ignored lab results that indicated that Allah might be suffering from

chronic kidney disease. Allah sought $1 million in compensatory damages, and

$10,000,000 in punitive damages.

       The CMS defendants moved to dismiss the amended complaint, see Fed. R. Civ.

Pro. 12(b)(6). In his opposition to that motion, Allah noted that he had received a letter

containing a copy of his medical Chart Summary from a Housing Unit Officer, which had

been torn open. Allah contended that providing medical records to him in this manner

was an example of how his right to confidentiality had been repeatedly violated.

       The District Court granted the CMS defendants’ motion to dismiss the amended

complaint in part. Dr. Ahab Gabriel was dismissed from the action entirely, and Allah’s

Eighth, Ninth, and Fourteenth Amendment claims against Jawana Bethea and CMS also

were dismissed. In pertinent part, the court determined that Allah had not alleged that

Bethea was deliberately indifferent to a serious medical need, that is, his high blood

pressure, see Farmer v. Brennan, 511 U.S. 825, 837 (1994). He alleged only that she did

not respond adequately to his general request for his medical records. This allegation

failed to state a claim under the Eighth Amendment, because the request for the medical

records was unrelated to Allah’s high blood pressure. In addition, Allah’s claim

concerning the administration of a TB skin test at the door of his prison cell did not

implicate the Eighth Amendment, because conducting such a test did not demonstrate

deliberate indifference to a serious medical need, see Estelle v. Gamble, 429 U.S. 97, 104

                                             3
(1976). Last, Allah did not allege any facts to demonstrate a policy on the part of CMS

to deny necessary medical care, see Natale v. Camden County Correctional Facility, 318

F.3d 575, 583-84 (3d Cir. 2003) (corporation cannot be held liable for acts of its

employees under doctrine of respondeat superior).

       The District Court also rejected the plausibility of Allah’s privacy claims under the

Fourteenth and Ninth Amendments. Noting that prisoners have a right to keep their

medical information private, but that the right is “subject to substantial restrictions and

limitations in order for correctional officials to achieve legitimate correctional goals and

maintain institutional security,” Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001), the court

determined that Allah’s assertion that he was forced to take a medical test through the

food tray slot in his cell door, and that prison medical personnel tried to talk to him about

his health through his cell door, did not implicate any constitutional right of privacy.

Allah had refused to discuss his medical conditions. Therefore, no confidential medical

information was disclosed. Moreover, merely conducting a TB skin test in view of other

prisoners does not result in the disclosure of confidential medical information. Last,

there were no allegations in the Amended Complaint that CMS ever disclosed any

confidential medical information without Allah’s consent.

       The state Department of Corrections (“DOC”) defendants then moved for

judgment on the pleadings, see Fed. R. Civ. Pro. 12(c), and the CMS defendants moved

to dismiss the claims against them under New Jersey’s Constitution, Civil Rights Act,

and Administrative Code. The District Court granted both motions. In pertinent part, the

court reasoned that New Jersey’s civil rights laws generally were co-extensive with 42

U.S.C. § 1983, and thus Allah’s state constitutional and civil rights claims, which were

                                              4
based on the same underlying conduct, were subject to dismissal for the same reasons the

court dismissed his section 1983 and federal constitutional claims.

       The District Court further determined that the CMS defendants had not violated

the state administrative code. Section 10A:5-2.23(a), which requires daily visits to

inmates in the Management Control Unit, a closed custody unit, during the business

week, did not provide a basis for liability because Allah did not allege the necessary facts

to support such a claim. Section 10A:5-2.25(a)-(c) requires treatment programs, social

workers, psychologists, counseling sessions, and interview rooms for inmates housed in

the MCU, but Allah did not allege that he had been denied access to any of these things.

Section 10A:4-3.1(a)(1) provides that inmates in the MCU be treated respectfully and

fairly by correctional personnel, but there was no factual basis in the amended complaint

to support a claim under this provision. Allah’s amended complaint showed that the

medical defendants responded to his complaints, provided him with medical treatment,

and behaved in a professional manner toward him. The District Court dismissed the state

DOC defendants for the same reasons the court dismissed the medical defendants, and, in

an order entered on June 2, 2011, the District Court dismissed the remaining defendant

under Fed. R. Civ. Pro. 4(m).

       Allah appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted

him leave to appeal in forma pauperis and advised him that the appeal was subject to

summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third

Cir. LAR 27.4 and I.O.P. 10.6.

       We will dismiss the appeal as frivolous. An appellant may prosecute his appeal

without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute

                                             5
provides that the Court shall dismiss the appeal at any time if the Court determines that it

is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

“[To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (internal quotations removed). The complaint must allege

facts that, if true, “give rise to an entitlement to relief.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 557 (2007). The standards governing Rule 12(c) motions are the same

ones that govern motions to dismiss under Rule 12(b)(6). Spruill v. Gillis, 372 F.3d 218,

223 n.2 (3d Cir. 2004).

       The District Court properly granted the defendants’ motions. To state a claim

under the Eighth Amendment, a prisoner must show that the defendants acted with

deliberate indifference. Estelle, 429 U.S. at 104-05. To act with deliberate indifference

is to recklessly disregard a substantial risk of serious harm. Farmer, 511 U.S. at 836. We

have carefully reviewed the briefs Allah filed in the proceedings below, and, of course,

his amended complaint. It is plain to us that Allah sought his medical records so that he

could independently review them, but mere disagreements over proper medical treatment

do not give rise to an Eighth Amendment violation. Spruill, 372 F.3d at 235. Allah

alleged that Dr. Martin, although he properly treated Allah’s high blood pressure,

incorrectly determined that certain lab results, which Allah thought indicated chronic

kidney disease, did not require treatment. See Amended Complaint, at ¶ 73 (“Although

Dr. Martin advised Plaintiff in December of 2007 that he reviewed his medical chart and



                                               6
saw nothing that would cause alarm, the January 27, 2006 Lab report … would seem to

render Dr. Martin’s analysis incorrect.”).

         This and other similar allegations only serve to illustrate that the deliberate

indifference standard was not met here. Allah was not exposed to undue suffering or the

threat of injury. Spruill, 372 F.3d at 235. He simply takes issue with the amount and

kind of medical care he received during the relevant time period. The deliberate

indifference standard requires much more. As to the delay in treating his high blood

pressure, which we agree was serious, Allah failed to assert that treatment was delayed or

denied with a culpable state of mind, see Farmer, 511 U.S. at 837. In addition, we note

the rule that allegations of medical malpractice are not sufficient to establish a

Constitutional violation, see Spruill, 372 F.3d at 235.

         With respect to his privacy claims, no defendant was alleged to have disclosed any

of Allah’s medical information. Allah himself steadfastly refused to discuss his medical

issues where others could listen in. Not surprisingly, given his strong views on the issue

of patient confidentiality, he apparently also refused the TB skin test. See Amended

Complaint, at ¶ 59-60.1 Therefore, we need not address whether information concerning


1
    Allah asserted:

         59. On July 14, 2008, Defendant Spingler appeared at Plaintiff’s cell door and
         ordered him to stick his entire arm out the dirty food port slot to submit to TB
         testing. She was advised by Plaintiff that, conducting medical testing in this
         manner violated several State and Federal laws. Plaintiff requested to be taken out
         his cell and brought to the prison’s medical department for such testing; or the
         appropriate area designated by the DOC. Defendant Spingler stated emphatically:
         stick your arm out the food port or you won’t be tested for TB. Plaintiff refused.
         60. Defendant Spingler instructed Plaintiff to sign a document stating that he was
         refusing medical care. (Based solely on his refusal to bend over and stick his
         entire arm out a dirty food slot opening to be injected with a needle for TB
         testing)[.]
                                                7
Allah’s high blood pressure and his other conditions, is information of the personal kind

that a prisoner has an interest in protecting from disclosure, see Doe, 257 F.3d at 317.

Similarly, we need not decide whether the mere administration of a TB skin test, where

others can look on, implicates a prisoner’s right to medical privacy. However, we

seriously doubt that merely conducting a TB skin test in view of other prisoners results in

a disclosure of confidential medical information sufficient to rise to the level of a

constitutional violation.

       Last, we agree with the District Court’s analysis of the state law issues. Moreover,

we note also that J.D.A. v. N.J. Dep’t of Corrections, 915 A.2d 1041 (N.J. 2007), which

Allah cited in the proceedings below, holds that the DOC “has a non-delegable duty to

assure adequate medical care to inmates. That duty includes notifying them, not only of

life-threatening conditions, but also of any serious condition requiring treatment;

maintaining and making available to inmates complete and accurate medical records; and

providing a procedure by which inaccurate medical records can be corrected.” Id. at

1043. That duty does not appear to us to have been violated here.

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).




       61. Plaintiff refused to sign such a document. Plaintiff did however, take the
       refusal document and placed this civil action complaint number on it and a brief
       note that his rights were being violated, and he was not refusing medical care or
       treatment.

Amended Complaint, at ¶¶ 59-61.
                                              8
