DLD-132                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3377
                                       ___________

                                  MAURICE HARPER,
                                             Appellant

                                             v.

           B. TRITT, Superintendant; DEPUTY SUPERNTD. MEINTEL;
          CHCA STANISHEFSKI; RALPH JOHNSON; KAREN HOLLY;
      DR. HARESH PANDYA; TONEY, Medical Staff Member; CHAD YORDY
                   ____________________________________

                    On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 3-16-cv-01640)
                   District Judge: Honorable William J. Nealon, Junior
                       ____________________________________

       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 22, 2018
            Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges

                              (Opinion filed March 1, 2018)
                                       _________

                                        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

       Maurice Harper appeals pro se from the District Court’s dismissal of his complaint

for failure to allege First, Eighth, and Fourteenth Amendment claims. We will summarily

affirm because no substantial question is presented by this appeal. See 3d Cir. L.A.R.

27.4; 3d Cir. I.O.P. 10.6.

       Maurice Harper, an inmate confined at the State Correctional Institution,

Frackville (“SCI-Frackville”), filed this pro se civil rights action pursuant to 28 U.S.C. §

1983 in August 2016, and filed an amended complaint in September 2016. Harper

alleged that prison staff at SCI-Frackville denied him adequate medical care, prevented

access to the Courts, and retaliated against him. All defendants filed motions to dismiss

the amended complaint in December 2016, and Harper filed briefs in opposition. On

October 19, 2017, the District Court granted the defendants’ motions to dismiss and

denied leave to amend. Harper appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s decision to grant a motion to dismiss. Fleisher v. Standard Ins.

Co., 679 F.3d 116, 120 (3d Cir. 2012). Dismissal is appropriate if the plaintiff is unable

to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). When considering a motion to dismiss, we

must accept all allegations in the complaint as true and draw all reasonable inferences in

the light most favorable to the nonmovant. Foglia v. Renal Ventures Mgmt., LLC, 754

F.3d 153, 154 n.1 (3d Cir. 2014). We review the denial of leave to amend for abuse of



                                               2
discretion. U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d

Cir. 2014).

       In his amended complaint, Harper alleged that he was provided constitutionally

inadequate medical care, related to what he characterizes as chronic back pain.

Specifically, Harper alleged that prison medical staff failed to provide him with pain

relief medication and a back brace.1

       To state an Eighth Amendment claim, a plaintiff must allege acts or omissions by

prison officials that indicate deliberate indifference to a serious medical need. Natale v.

Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). Generally, deliberate

indifference occurs when prison authorities deny reasonable requests for medical

treatment, thus exposing the inmate “to undue suffering or the threat of tangible residual

injury” or, knowing of the need for medical care, intentionally refuse to provide it.

Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)

(internal quotations omitted).

       We agree with the District Court that Harper’s allegations show that he received

medical care, and that the medical care “lack[ed] the requisite deliberate indifference to



1
 In Harper’s original complaint, he alleged that he was denied adequate treatment for his
diagnosis of Barrett’s disease. However, Harper did not repeat these allegations in his
amended complaint. In the District Court’s order granting Harper permission to file an
amended complaint, the Court specifically stated that “Plaintiff is reminded that an
amended complaint should ‘be a new pleading which stands by itself as an adequate
complaint without reference to the complaint already filed.’” Dkt # 8 (citing Young v.
Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992)). Therefore, the District Court was
correct to rely solely on the allegations asserted in Harper’s amended complaint in
granting defendants’ motions to dismiss.
                                             3
support a [§] 1983 claim.” Dkt # 44, at 12. Harper stated that he was seen by a prison

doctor, given a lumbar-sacral x-ray of his spine, diagnosed with a subcutaneous fascia/fat

herniation, and provided stretching exercises to relieve the pain and discomfort. Though

Harper clearly disagrees with the physician’s decisions in treatment, a mere disagreement

in treatment is not an actionable constitutional violation. See Lanzaro, 834 F.2d at 346.

Even if Harper’s allegations could rise to the level of negligence, simple negligence

cannot support an Eighth Amendment claim. See Estelle v. Gamble, 429 U.S. 97, 106

(1976).

       Harper further alleged several claims regarding medical co-payments that he was

required to pay for his medical services in SCI-Frackville. Harper alleged that these

payments violated the U.S. Constitution, constituted retaliation by prison staff, and

prevented him from accessing the courts.

       We agree with the District Court that Harper failed to establish either an Eighth or

a Fourteenth Amendment violation based on the prison’s medical co-pay requirement.

There is nothing unconstitutional about a prison program that requires an inmate to pay

for a small portion of his medical care so long as the provision of needed medical care is

not conditioned on an inmate’s ability or willingness to pay. See Reynolds v. Wagner,

128 F.3d 166, 174 (3d Cir. 1997). Harper does not allege, and the record does not

indicate, that medical services were withheld for failure to pay. In fact, Harper was seen

by medical personnel, diagnosed, and provided treatment.

       We similarly agree with the District Court that Harper failed to allege a claim of

retaliation. He had to show: (1) that he was engaged in a constitutionally protected

                                             4
activity; (2) that he “suffered some ‘adverse action’ at the hands of the prison officials”;

and (3) that the protected activity was “a substantial or motivating factor” in the prison

officials’ decision to take the adverse action. Rauser v. Horn, 241 F.3d 330, 333-34 (3d

Cir. 2001). The burden then shifts to the prison officials to prove “that they would have

made the same decision absent the protected conduct for reasons reasonably related to a

legitimate penological interest.” Id. at 334. Harper failed to allege any facts that

demonstrate that defendants’ actions were retaliatory. The co-payments were imposed

pursuant to the Department of Corrections’ co-pay policy. Since Harper was not

diagnosed with a chronic condition, he was not excused from paying the co-pay, per the

Department of Corrections’ policy.

       Finally, Harper has similarly failed to allege an access to the courts claim. Harper

had to allege that his efforts to pursue a legal claim were hindered and he suffered an

actual injury. Lewis v. Casey, 518 U.S. 343, 351 (1996). Though the District Court did

not squarely address this claim, we conclude that Harper has failed to state a claim for

relief as he has not alleged any “actual injury.” See id. at 351–54.2

       Because Harper’s appeal lacks arguable merit we deny his motion for appointment

of counsel, see Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993), and will affirm the

judgment of the District Court.




2
 We have considered Harper’s remaining arguments and conclude that they are
meritless.
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