ALD-108                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-2885
                                       ___________

                                   AARON L. HENRY,
                                              Appellant

                                             v.

         WARDEN JAMES T. VAUGHN CORRECTIONAL CENTER;
    MARC RICHMOND; ROBERT COUPE; DR. MUNOS, Mental Health Director;
           DR. RICHARDS, Correction Officer, Mental Health Director
                  ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                         (D.C. Civil Action No. 1-17-cv-00436)
                      District Judge: Honorable Gregory M. Sleet
                      ____________________________________

       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
                                  February 21, 2019
              Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges

                              (Opinion filed March 1, 2019)
                                     ___________

                                        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.
       Aaron L. Henry is an inmate at James T. Vaughn Correctional Center in Smyrna,

Delaware. In April 2017, he filed a pro se civil rights complaint under 42 U.S.C. § 1983

against the prison warden and several other defendants. Henry alleged that he has a

number of medical conditions and is disabled from a prior accident, and that he has been

losing weight since December 2015. He stated that his condition is worsening, and that

the defendants denied him adequate medical and mental health care. He later

supplemented his complaint, stating, among other things, that he waited seventy-two

hours after a PTSD breakdown before he was seen by the defendant Dr. Paola Munoz,

and that he was placed in isolation with unclean confinement conditions. As relief,

Henry sought prompt medical and mental health care, firing of the defendants and

transfer to a different correctional facility where he received better medical care, and

damages.

       In June 2017, the District Court granted Henry’s motion for leave to proceed in

forma pauperis and screened the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) and

§ 1915A(b)(1). The District Court evaluated whether the complaint stated a cognizable

Eighth Amendment violation concerning inadequate medical care and concluded that the

complaint was deficient as presented. The District Court explained that the allegations of

wrongdoing did not identify any particular defendants or specify that the defendants

named in supervisory positions were personally responsible for Henry’s injuries. The

District Court also noted the lack of relevant dates and detail regarding the allegations.

Accordingly, the District Court dismissed the complaint for failure to state a claim upon

which relief may be granted but provided leave for Henry to file an amended complaint.

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         In July 2017, Henry filed a response containing additional allegations, which the

District Court treated as his amended complaint. Henry provided supplemental materials,

including prison grievance documents. As with the initial complaint, the District Court

found that the amended complaint materials did not reference any of the named

defendants. The District Court again dismissed the complaint for failure to state a claim

and granted Henry one final opportunity to amend his pleading by December 18, 2017,

warning that the case would be closed if Henry did not file a second amended complaint.

The District Court also denied Henry’s motion to reconsider an order requiring filing fee

payments, noting that the in forma pauperis statute obligates prisoners to pay the fee

under the provisions of § 1915(b)(1). Henry requested and received two additional

periods to comply, with February 12, 2018 being the final deadline.

         Henry did not file a second amended complaint but continued to file motions for

medical document production and a motion for waiver of the filing fees. In July 2018,

Henry also filed a motion for injunctive relief, stating that, despite receiving a

colonoscopy, medication for a bacterial issue, blood laboratory testing, and a prescription

for a “weight-gainer” medication, he continued to lose weight. In an attachment to the

motion, Henry stated that he went on a hunger strike for fourteen days, in an effort to

obtain medical attention and to test whether prison food was causing his weight loss.1

Henry stated that unnamed defendants failed to provide a correct diagnosis for his illness

or provide him with proper treatment or access to outside specialists. Upon direction by



1
    Henry stated that he weighed 154 pounds, down from 242 pounds in December 2015.
                                              3
the District Court, the prison warden filed a response to the motion for injunctive relief.

The warden also provided an affidavit by Dr. Awele Maduka-Ezeh, an employee of the

Delaware Department of Correction in the Bureau of Correctional Healthcare Services,

who reviewed Henry’s medical file and summarized his history of medical testing and

treatment2 since Henry reported weight loss in May 2016. The District Court concluded

that Henry did not demonstrate a likelihood of success on his claims and thus denied his

motion for injunctive relief. Further, because Henry still had not filed an amended

complaint, the District Court directed the court clerk to close the case. Also, the District

Court denied the motion to waive the filing fee and denied the remaining motions as

moot. Henry appeals. He has filed a counsel motion and a letter in support of his appeal.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Because Henry has

been granted in forma pauperis status pursuant to § 1915, we review this appeal for

possible dismissal § 1915(e)(2)(B). We may summarily affirm under Third Circuit LAR

27.4 and I.O.P. 10.6 if the appeal lacks substantial merit. We exercise plenary review

over the District Court’s § 1915(e)(2)(B)(ii) dismissal of Henry’s complaint. See Allah

v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To survive dismissal, a complaint must

“state a claim to relief that is plausible on its face” by including facts which “permit the

court to infer more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S.

662, 678–79 (2009). While we review a district court’s ultimate denial of a preliminary


2
  The affidavit lists the following: esophago-gastro-duodenoscopy, colonoscopy, stomach
and small intestine biopsy, treatment of H. Pylori infection, abdominal ultrasound,
barium swallow, bloodwork, and testing for HIV, hepatitis C, tuberculosis, syphilis, and
thyroid function.
                                              4
injunction for abuse of discretion, we review factual findings for clear error and examine

legal conclusions under a de novo standard. See Brown v. City of Pittsburgh, 586 F.3d

263, 268 (3d Cir. 2009).

       For substantially the same reasons given by the District Court, we conclude that

the District Court did not err in dismissing Henry’s complaint for failure to state a claim

or in denying preliminary injunctive relief. To state an Eighth Amendment claim based

on inadequate medical treatment, a plaintiff must allege that the defendants were

deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97,

104–105 (1976). He can plead “deliberate indifference” by alleging that the defendants

were “aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and [that they] also [drew] the inference.” Farmer v. Brennan,

511 U.S. 825, 837 (1994). Because this is an action under § 1983, Henry cannot rely

solely on respondeat superior as a theory of liability; rather, he must show that the

defendants were personally involved in his medical treatment by alleging personal

direction, actual knowledge, or acquiescence. See Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988).

       Upon review of Henry’s documents filed with his complaint and amended

complaint, we see no facts alleging that any of the defendants were personally involved

in his medical treatment, with the exception of Dr. Munoz. In a supplement to his initial

complaint, Henry alleged that Dr. Munoz provided treatment while he was in isolation

custody, but he did not allege that she intentionally denied, delayed, or interfered with his

medical treatment. See Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017).

                                              5
Henry did not file a second amended complaint to allege the defendants’ involvement in

his claims, despite receiving extensions of time to do so.

       Months after the deadline passed for filing a second amended complaint, Henry

filed his motion for injunctive relief, together with a supplement. Even considering the

allegations in this filing, the result is the same. Henry did not identify any personal

involvement by the named defendants. Also, based on his own allegations, he had a

number of studies performed, including a colonoscopy, blood laboratory studies, as well

as a throat study, and he was prescribed medication for his weight loss. Henry insisted

that medical staff should be doing more for him, such as arranging for specialist care or

transfer to the hospital for additional testing.3 However, even if Henry had alleged the

requisite personal involvement by the defendants, allegations of negligent medical

treatment are not sufficient to state an Eighth Amendment claim. See Durmer v.

O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993).

       For similar reasons, we discern no error in the District Court’s denial of

preliminary injunctive relief. To obtain this “extraordinary remedy,” the moving party

must establish: “(1) a likelihood of success on the merits; (2) that [he] will suffer

irreparable harm if the injunction is denied; (3) that granting preliminary relief will not

result in even greater harm to the nonmoving party; and (4) that the public interest favors

such relief.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). The



3
  Henry stated that he had undertaken a fourteen-day hunger strike, both to call attention
to his weight loss and also to rule out whether prison food was the source of his medical
issues.
                                              6
District Court addressed only the first element, that Henry failed to establish a likelihood

of success on the merits, which is sufficient. See Ferring Pharms., Inc. v. Watson

Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014) (“The failure to establish any element . . .

renders a preliminary injunction inappropriate.”) (internal quotation marks and citations

omitted).

       Finally, because the provisions of the in forma pauperis statute obligates prisoners

to pay the full amount of the filing fee, in the manner described in § 1915(b)(1), we agree

with the District Court’s denial of Henry’s motion for a waiver of the fees.

       Accordingly, we will we will affirm the District Court’s judgment. Henry’s

motion for appointment of counsel is denied.




                                              7
