                                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 11-2178
                                ___________

                            THERESE AFDAHL,
                                       Appellant

                                      v.

   DR. FRANK CANCELLIERI, Dentist; KIESHA WILLIAMS, Dental Assistant;
         DR. LOUIS COLELLA, Chief of Dental Services for the NJDOC;
        SHELLY WILSON-HOWARD, Hospital Services Administrator for
    Correctional Medical Services; CORRECTIONAL MEDICAL SERVICES
                  ____________________________________

                On Appeal from the United States District Court
                         for the District of New Jersey
                     (D.C. Civil Action No. 09-cv-01332)
                  District Judge: Honorable Mary L. Cooper
                 ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                             February 23, 2012

           Before: AMBRO, FISHER and NYGAARD, Circuit Judges

                          (Filed: February 24, 2012)
                                 ___________

                                 OPINION
                                ___________

PER CURIAM
          Therese Afdahl appeals pro se from the District Court’s dismissal of her civil

rights action brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will

affirm.

          In March 2009, Afdahl initiated the underlying action, alleging violations of her

constitutional rights in connection with dental treatment that she received while

incarcerated at the Edna Mahan Correctional Facility (“EMCF”). In particular, Afdahl

alleged that, in violation of the Eighth Amendment, the defendants acted callously and

with reckless disregard by delaying a root canal procedure despite having personal

knowledge of the pain and suffering she had been experiencing. She also asserted that

her treatment was delayed in retaliation for her having previously complained about the

manner in which dental care was provided, thus violating her First Amendment rights.

She named the following as defendants: Dr. Frank Cancellieri; Kiesha Williams, Dental

Assistant; Dr. Louis Colella, the Director of Dental Services at the New Jersey

Department of Corrections; Shelly Wilson-Howard, Hospital Services Administrator for

Correctional Medical Services; and Correctional Medical Services (“CMS”).

          The timeline regarding Afdahl’s dental issue is important, so we set it out in some

detail here. Afdahl developed a toothache on August 24, 2008, and thereafter submitted a

Health Services Request Form. She was seen by a medical department nurse on

August 27, 2008, given ibuprofen for pain, and informed that she would be scheduled for

a dental appointment. On August 29, 2008, Afdahl was seen by Dr. Cancellieri and

Dental Assistant Williams. An x-ray was taken and Afdahl was told that she needed a

                                               2
root canal. Dr. Cancellieri prescribed 800 milligrams of ibuprofen, three times a day for

pain, and asked Dental Assistant Williams to schedule the root canal procedure.

       Because of continuing pain, Afdahl submitted a second Request Form on

September 3, 2008, seeking an expedited scheduling of the root canal. Afdahl asserted

that Wilson-Howard, the Hospital Services Administrator for CMS, was notified about

her “pain and suffering” on September 4, 2008. Shortly thereafter, Dental Assistant

Williams informed Afdahl that her root canal treatment would not be scheduled for at

least another week and that she would not receive any additional ibuprofen. Afdahl

claims that she was called to the dental department on September 8, 2008. At that time,

Dental Assistant Williams told Afdahl that she would not receive ibuprofen following the

root canal procedure if she chose to take more while she was waiting for treatment to

begin. Afdahl opted for the pain relief medication to help her cope. On September 9,

2008, Afdahl was seen by the attending physician in the medical department and was

prescribed Vicodin because of a concern over possible side effects from the amount of

ibuprofen she had been taking. The next day, Afdahl wrote a letter to Dr. Colella, asking

for intervention and assistance in obtaining treatment for what she believed had become

“an emergency medical situation.” On September 15, 2008, Afdahl spoke to a prison

official, asking for assistance in being treated by the dental department, and she

submitted yet another Request Form.

       Dr. Cancellieri began the root canal procedure on September 16, 2008, and told

Afdahl that the area being worked on was infected. According to Afdahl, Dr. Cancellieri

                                             3
did not prescribe oral antibiotics, but apparently did apply medication and a temporary

filling to the affected tooth. Afdahl was called back for further root canal work on

October 15, 2008. During the procedure, Dr. Cancellieri observed pus in the infected

area, but again did not prescribe oral antibiotics. Afdahl wrote a second letter to Dr.

Coletta “begging for intervention.” On October 19, 2008, Afdahl began to experience

extreme pain. The next day, Afdahl observed swelling in her face. The medical

department was contacted and Afdahl was again given ibuprofen. She also submitted

another Request Form.

       Afdahl showed her swollen face to a nurse on October 21, 2008, and was seen by a

dentist later that day. An x-ray revealed that a cyst had formed over the infected tooth,

and she was prescribed oral antibiotics. Her root canal treatment continued on

October 30, 2008. By November 24, 2008, most of the temporary filling that had been

put into place had come out and Afdahl submitted another Request Form seeking dental

attention. Afdahl’s root canal treatment was completed on November 26, 2008.

       In screening Afdahl’s complaint, the District Court dismissed Afdahl’s First

Amendment claims sua sponte under 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1),

concluding that Afdahl’s concern about the mere possibility that the defendants would




                                             4
engage in retaliatory behavior failed to state a claim upon which relief could be granted.1

Afdahl’s Eighth Amendment claims were permitted to proceed. The defendants

responded to the complaint by filing motions to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). In a Memorandum Opinion and Order entered on December 22,

2009, the District Court dismissed the claims brought against CMS and Dr. Colella in his

official capacity, but denied the motions to the extent they concerned claims against Dr.

Cancellieri, Dental Assistant Williams, Wilson-Howard, and Dr. Colella in his individual

capacity. With respect to Afdahl’s contention that CMS should be liable for its failure to

establish a scheduling system ensuring that emergency cases receive priority

consideration, the District Court concluded that respondeat superior cannot be a basis for

§ 1983 liability. The District Court also held that Afdahl failed to allege a custom or

policy on the part of CMS permitting a delay between the determination that treatment

was necessary and the actual start of treatment.

       At the close of discovery, the defendants filed motions for summary judgment. In

a Memorandum Opinion and Order entered on April 4, 2011, the District Court granted

the defendants’ motions and entered summary judgment in their favor. The District

Court concluded that the record evidence established that Afdahl was provided with

       1
         Although we afford Afdahl’s filings a liberal construction, we conclude that she
has waived any challenge to the District Court’s dismissal of her retaliation claim
because she failed to meaningfully raise this issue in her opening brief. United States v.
Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to
identify or argue an issue in his opening brief constitutes waiver of that issue on
appeal.”).


                                              5
dental care throughout the entire period at issue in her complaint. “Although the speed of

that care was, undoubtedly, less than exemplary,” the District Court found that “the

delays asserted by [Afdahl] cannot amount to anything more than a claim of medical

malpractice or negligence.” Since the dental care provided by Dr. Cancellieri and

Williams was found not to have offended constitutional standards, the District Court

concluded that it need not reach Afdahl’s claims regarding Wilson-Howard’s and

Colella’s supervisory obligations to direct speedier treatment.2 This timely appeal

followed.

       We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions

regarding both summary judgment and dismissal for failure to state a claim under the

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826

(3d Cir. 2011). “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 omitted). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine


       2
        The District Court also determined that the defendants’ actions in prescribing
800 milligrams of ibuprofen, three times a day, did not violate Afdahl’s constitutional
rights. We will not address this issue, however, because Afdahl makes clear that she had
no intention of presenting such a claim, but merely referenced the amount of ibuprofen
she was taking daily and the adverse effects it was causing her in an attempt to
demonstrate the amount of pain she was in throughout the period in question. See
Appellant’s Informal Br., 5.


                                                6
dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir.

2006).

         Pursuant to the Eighth Amendment’s prohibition on cruel and unusual

punishment, prison officials are required to provide basic medical treatment to inmates.

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). In order to show a violation of the

Eighth Amendment’s ban on cruel and unusual punishment, a prisoner must show that

prison officials were deliberately indifferent to the prisoner’s serious medical needs.

Estelle v. Gamble, 429 U.S. 97, 104 (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). 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).

         It is not disputed that Afdahl’s dental condition presented an objectively serious

medical condition. Nevertheless, we agree with the District Court that the conduct of the

defendants does not amount to deliberate indifference. The record demonstrates that

Afdahl received ongoing treatment for her dental condition from the date that she

                                               7
reported a toothache (August 24, 2008) until the root canal procedure was completed

(November 26, 2008). During that period, she was treated by prison medical personnel

numerous times. For instance, on August 27, 2008, Afdahl was seen by a nurse, given

ibuprofen, and scheduled for a dental appointment. That appointment occurred two days

later, at which time Dr. Cancellieri took x-rays, directed that Afdahl be scheduled for a

root canal procedure, and prescribed more ibuprofen. Ten days later, Dental Assistant

Williams provided Afdahl with more ibuprofen. The next day, September 8, 2008, an

attending physician prescribed Vicodin because of Afdahl’s continued complaints about

pain and the side effects from the ibuprofen. The root canal procedure began on

September 16, 2008, continued on October 15 and October 30, 2008, and was completed

on November 26, 2008. In between the procedures, Afdahl’s complaints about pain and

swelling were promptly addressed through appointments with additional dentists, further

x-rays, and prescriptions for ibuprofen and oral antibiotics.3

       In addition, Afdahl’s complaints about delayed treatment are belied by Dr.

Cancellieri’s sworn affidavit. In that affidavit, Dr. Cancellieri stated that the “care

provided to Ms. Afdahl was time consuming, and required numerous visits.” Indeed,

upon diagnosing the need for a root canal, Dr. Cancellieri informed Afdahl that the

“treatment involves multiple treatments and can be time consuming.” According to Dr.

       3
         Although Afdahl claims that these were “the first antibiotics ever prescribed in
the over fifty-seven (57) days since infection was first evident due to pain experienced,”
she conceded that Dr. Cancellieri applied medication and a temporary filling directly to
the affected tooth.


                                              8
Cancellieri, “[a]ny perceived delays are typical in a dental setting,” “[i]mmediate dental

treatment, unlike other medical conditions, generally do[es] not result in death,” and

“discomfort is merely a universal symptom of a dental issue.” Under these

circumstances, and viewing the undisputed facts in the light most favorable to Afdahl, we

find no evidence to show that Dr. Cancellieri and Dental Assistant Williams recklessly

disregarded a serious risk to Afdahl’s health.

       Because the care provided by Dr. Cancellieri and Dental Assistant Williams did

not offend constitutional standards, we agree that Dr. Colella and Wilson-Howard did not

have an obligation to direct a different or speedier course of treatment. We add only the

following. According to the complaint, Wilson-Howard, the Hospital Services

Administrator for CMS, was notified by prison medical personnel about Afdahl’s “pain

and suffering” on September 4, 2008. Notably, however, Afdahl failed to allege that

Wilson-Howard had reason to believe that her condition was not being treated. Where, as

here, “a prisoner is under the care of medical experts . . ., a non-medical prison official

will generally be justified in believing that the prisoner is in capable hands.” Spruill v.

Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

       Dr. Colella, the Director of Dental Services at the New Jersey Department of

Corrections, likely cannot be classified as a non-medical prison official. Nevertheless,

Dr. Colella explained in a declaration that he does not perform any dental work on

patients and that, while he can make suggestions as to the proper course of treatment, he

is not authorized to give binding orders to CMS staff. Afdahl claimed that she wrote to

                                              9
Dr. Colella seeking his help in obtaining dental treatment. But, contrary to Afdahl’s

assertion that Dr. Colella failed to act upon her complaints, Dr. Colella stated that upon

receiving Afdahl’s letter, he reviewed her medical file and observed that “the course of

treatment that addressed [her] complaints had already begun.” Dr. Colella noted this fact

in a letter to Afdahl. Thus, we conclude that the District Court properly granted summary

judgment in favor of Dr. Colella.4 See Inmates of Allegheny Cnty. Jail v. Pierce, 612

F.2d 754, 762 (3d Cir. 1979) (courts will “disavow any attempt to second-guess the

propriety or adequacy of a particular course of treatment . . . (which) remains a question

of sound professional judgment.” (citations omitted)).

       The District Court also properly rejected Afdahl’s claims against CMS, Dr.

Colella, and Wilson-Howard. In her complaint, Afdahl alleged that CMS, the contractor

that provided medical care at the prison, failed to establish a scheduling system to ensure

that emergency cases are properly prioritized. As the District Court explained, however,

liability under § 1983 cannot be based solely upon the doctrine of respondeat superior.

See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (2003). To establish

       4
         In addition, the District Court properly dismissed the claims brought against Dr.
Colella in his official capacity. It is well-settled that state officials acting in their official
capacities, like states themselves, are not amenable to suit for damages under § 1983.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 & n.10 (1989); see also Fitchik
v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 660 (3d Cir. 1989) (“federal litigants
cannot get damages from the state treasury by suing a state officer in his or her official
capacity”). In addition, to the extent that Afdahl sought a declaration that Dr. Colella
violated her constitutional rights, her claim must fail because it is based on alleged past
violations. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993).


                                                10
liability on the part of CMS, Afdahl would have to demonstrate that it had an established

policy or custom that resulted in the alleged constitutional violations at issue. Id. at 583-

84. Because Afdahl did not allege that CMS imposed any such policy or custom, the

District Court properly dismissed her claims against CMS.

       For the foregoing reasons, we will affirm the judgment of the District Court.5




       5
         We grant the motion filed by Appellees Dr. Cancellieri, Dental Assistant
Williams, and Wilson-Howard for leave to file Volume II of the Supplemental Appendix
under seal. To the extent that Afdahl challenges the District Court’s denial as moot of
her motion to compel discovery and to impose sanctions, there was no abuse of
discretion.


                                             11
