DLD-052                                                      NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 12-3556
                                        ___________

                                 SOLOMON JOHNSON,
                                            Appellant

                                            v.

     BRIAN V. COLEMAN, WARDEN; DR. HERBICK, MEDICAL DIRECTOR;
                         ROBERT TRETINIK, R.N.
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2:11-cv-01376)
                      District Judge: Honorable Joy Flowers Conti
                      ____________________________________

         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
                                  November 29, 2012

               Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed: December 13, 2012 )
                                  _________________

                                         OPINION
                                     _________________

PER CURIAM

       Solomon Johnson appeals pro se from the District Court’s order dismissing his

complaint. Because the appeal presents no substantial question, we will summarily

affirm the District Court’s order.
                                             I.

       In 2008, Johnson filed a civil rights complaint in the United States District Court

for the Western District of Pennsylvania. In the complaint, he alleged that Defendants

Dr. Herbick, Brian Coleman, and Robert Tretinik were deliberately indifferent to his

serious medical condition in violation of the Eighth Amendment to the Constitution.

       The medical condition from which Johnson suffers is known as deep vein

thrombosis. Prior to his incarceration, he was given a treatment plan consisting of

“lifetime annual ultrasound therapy in conjunction with blood thinners . . . .” Johnson

received this treatment while imprisoned at the State Correctional Institution at Albion in

September 2007. After being transferred to the State Correctional Institution at Fayette,

he requested his annual treatment for 2008. Herbick, the Medical Director, refused to

continue with the yearly ultrasound therapy, telling Johnson that ultrasound therapy was

only necessary if he was having pain. Herbick also arranged for Johnson to consult with

a vascular surgeon via videoconference, and it appears that the vascular surgeon agreed

with Herbick’s decision to forego Johnson’s annual ultrasound therapy.

       At some point in 2009, Johnson developed pain and a lump in his left leg. After

he expressed concern that he was experiencing clotting in his legs, he was visited by

medical personnel. It appears that, during his medical examination, Johnson received

anti-inflammatory medicine and an X-ray, which came out negative for signs of the lump.

Because Johnson was unable to consult the vascular surgeon again or receive ultrasound

therapy, he filed a grievance regarding his treatment. Tretinik, the Chief Health Care
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Administrator, responded to Johnson’s grievance with a letter reiterating the treatment

that Johnson received.

          According to Johnson’s complaint, Herbick demonstrated deliberate indifference

to Johnson’s serious medical condition by failing to comply with Johnson’s pre-

incarceration medical treatment plan and failing to consult the vascular surgeon after

Johnson complained of the lump and pain in his left leg. Johnson also claimed that his

grievance put Tretinik and Coleman, the Warden, on notice that he suffered from a

serious medical condition and was not receiving adequate medical treatment in the

prison.

          The Magistrate Judge recommended dismissing Johnson’s complaint against all

three defendants, reasoning that (1) Johnson’s claim against Herbick was time-barred; (2)

Johnson failed to allege facts establishing that Herbick acted with deliberate indifference;

and (3) Johnson failed to allege facts establishing that Coleman and Tretinik had actual

knowledge that Johnson was not receiving adequate medical treatment. Despite

Johnson’s objections to the Report and Recommendation, the District Court agreed

substantially with the Magistrate Judge and issued a memorandum order dismissing

Johnson’s complaint. Johnson timely appealed to this Court.

                                              II.

          We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a

district court’s order granting a motion to dismiss for failure to state a claim is plenary.

Dique v. N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010). To survive a motion to
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dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must contain “factual

content that allows the court to draw the reasonable inference that the defendant[s are]

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). We may summarily affirm a judgment of the District Court

on any basis supported by the record if the appeal does not raise a substantial question.

See I.O.P. 10.6; see also Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011).

       A. Dismissal of the claim against Herbick

       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 establish a constitutional

violation, 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). A finding

of deliberate indifference requires proof of subjective knowledge, not objective

knowledge, “meaning that the official must actually be aware of the existence of the

excessive risk; it is not sufficient that the official should have been aware.” Beers-

Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). Deference is given to prison

medical authorities in the diagnosis and treatment of patients, and courts “disavow any

attempt to second-guess the propriety or adequacy of a particular course of treatment . . .

(which) remains a question of sound professional judgment.” Inmates of Allegheny

Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551
                                               4
F.2d 44, 48 (4th Cir. 1977)). We have found deliberate indifference where a prison

official: “(1) knows of a prisoner’s need for medical treatment but intentionally refuses to

provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3)

prevents a prisoner from receiving needed or recommended treatment.” Rouse, 182 F.3d

at 197 (citing Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993)). However, we have

found that “no claim is stated when a doctor disagrees with the professional judgment of

another doctor.” White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).

       The District Court properly dismissed Johnson’s claim for failure to allege facts

establishing that Herbick knew of and ignored a risk to Johnson’s health. Although

Johnson alleged a serious medical condition, he did not allege that Herbick denied or

delayed necessary medical treatments. Instead, Johnson received treatment for his

condition in accordance with Herbick’s treatment plan, which Herbick apparently

developed via videoconference consultation with a vascular surgeon. It thus appears that

Johnson’s claim is fundamentally about his concern that Herbick’s treatment plan

differed from the treatment Johnson received prior to his incarceration at SCI-Fayette.

Because Johnson’s complaint alleged only a disagreement with the course of treatment he

received, we agree with the District Court that Johnson failed to state a claim that

Herbick was deliberately indifferent to his serious medical condition.

       B. Dismissal of the claim against Tretinik and Coleman

       The District Court properly dismissed Johnson’s claims against Tretinik and

Coleman for their roles as administrators. “If a prisoner is under the care of medical
                                             5
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). Thus,

“absent a reason to believe (or actual knowledge) that prison doctors or their assistants

are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be

chargeable with the Eighth Amendment scienter requirement of deliberate indifference.”

Id. Because Tretinik’s only alleged role was responding to Johnson’s administrative

complaint, we conclude that the District Court properly applied Spruill when it dismissed

Johnson’s claim against Tretinik.

       The District Court also properly dismissed Johnson’s claim against Coleman. “An

individual government defendant in a civil rights action must have personal involvement

in the alleged wrongdoing; liability cannot be predicated solely on the operation of

respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Here, because Johnson did

not allege that Coleman had any personal involvement in the alleged underlying

wrongdoing, he failed to state a claim against Coleman.

       Accordingly, this appeal presents us with no substantial question, and we will

summarily affirm the District Court’s order. See 3rd Cir. LAR 27.4 and I.O.P. 10.6.




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