                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3369
                                       ___________

                           VERNON EARL MCGINNIS, JR.,
                                             Appellant

                                             v.

                   MARK HAMMER, Physician's Assistant;
                    STEPHANIE WOOD, C.H C.A./R.N.;
                   SUPERINTENDENT MARK CAPPOZA;
                   CORRECT CARE SERVICE LLC, CCS;
          CARROL SCIRE, Superintendent's Assistant/Grievance Coordinator
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-15-cv-00398)
                      District Judge: Honorable Joy Flowers Conti
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 7, 2018

             Before: VANASKIE, COWEN and NYGAARD, Circuit Judges

                           (Opinion filed: September 11, 2018)
                                      ___________

                                        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.
      Pro se appellant Vernon Earl McGinnis, Jr., a Pennsylvania state prisoner

proceeding in forma pauperis, appeals from the District Court’s order granting the

defendants’ motions to dismiss. For the reasons discussed below, we will affirm.

                                            I.

      Because we write primarily for the parties, who are already familiar with this case,

we include only those facts necessary to reach our conclusion.

      McGinnis alleges that in late 2014, while incarcerated at SCI Pittsburgh, he

experienced severe pain in his left knee after jogging. On December 29, 2014, McGinnis

was seen by Mark Hammer, a Physician’s Assistant employed by Correct Care Service

LLC. McGinnis alleges that Hammer did not touch or examine him, but that Hammer

did diagnose a knee sprain, prescribe ibuprofen, and advise McGinnis to “use common

sense.” Hammer did not order x-rays or an MRI, or prescribe crutches, a knee brace, or

an ace wrap.

      For the following two weeks, McGinnis walked with a painful limp. The limp

caused him to fall once on the F Block steps on January 13, 2015. McGinnis was put in a

wheelchair and examined by medical personnel, but has not alleged that he suffered any

injuries from the fall. He was given crutches and a follow up appointment was

scheduled.

      Because he was unsatisfied with his initial treatment from Hammer, McGinnis

submitted a request slip to Stephanie Wood, a Corrections Health Care Administrator,

advising of his ongoing knee pain and requesting an MRI. McGinnis subsequently

informed Carol Scire, the Grievance Coordinator, and Mark Capozza, the Superintendent,



                                            2
of his need for additional medical treatment. On January 13, 2015, McGinnis filed a

grievance against Hammer, Wood, and Capozza, on the grounds that he was being denied

necessary medical treatment. McGinnis alleges that these defendants conspired together

to turn a “blind eye” to his knee problem, and that Wood was improperly assigned to

review the grievance. Wood denied the grievance and found that McGinnis was

“receiving the community standards of medical care.”

       On January 16, 2015, McGinnis was examined by Physician’s Assistant Meredith

George. George examined McGinnis’ leg and concluded that he had ligament damage.

McGinnis requested an MRI, but was allegedly told by George “[I]t does not work like

that, if the medical [department] fixed everyone in prison, the state would be bankrupt.”

George provided better crutches, ordered x-rays, and prescribed physical therapy.

       McGinnis was seen by Hammer again on February 16, 2015. McGinnis told

Hammer that he could not walk and that his left knee was getting worse. After

examining McGinnis, Hammer determined that his ligaments were “laxed,” ordered a

hinged knee brace, and prescribed leg-strengthening exercises. When McGinnis asked

how Hammer could make a diagnosis and prescribe treatment without an MRI, Hammer

allegedly accused McGinnis of “faking” and said that “[y]ou will not get an M.R.I., and

fixing your knee is an elective procedure…they do not have to make you a world class

athlete.” McGinnis then informed Hammer that the ibuprofen was not alleviating his

pain. Hammer responded by canceling the prescription, without prescribing any other

pain medication. McGinnis alleged that “this is in retaliation, he is aware of the prison

grievance I filed on him.” McGinnis has not alleged that he requested any other pain



                                             3
medication at that time. On March 5, 2015, McGinnis was seen again by Meredith

George, who prescribed naproxen. McGinnis alleged that the naproxen “is less than what

I was getting with the [ibuprofen] and I was still in constant and severe pain.”

          McGinnis then filed his complaint in the District Court, alleging violations of his

Eighth Amendment rights. Following a hearing on June 9, 2015, the District Court

ordered the defendants to schedule an MRI of McGinnis’ knee and to have the knee

evaluated by an orthopedic surgeon. The MRI was completed and a board-certified

orthopedic surgeon diagnosed tendonitis of the abductor muscle, which did not require

surgery. McGinnis does not allege that the diagnosis required any alternative course of

treatment, and states that by November 2015, his knee had healed to the point where he

could walk normally and resume weightlifting.

          In late November 2015, McGinnis experienced pain and swelling in his lower

abdomen. He did not seek treatment for this issue until April 2016. In the following

months, McGinnis was seen by several physicians and eventually had surgery to repair a

hernia.

          The District Court granted McGinnis leave to file an amended complaint, which

he filed on November 16, 2015. The defendants then filed a motion to dismiss. After

responding, McGinnis sought and was granted leave to file his Second Amended

Complaint. The defendants again filed a motion to dismiss, and on December 19, 2016,

the Magistrate Judge recommended dismissing the complaint. McGinnis filed objections

to the Magistrate’s report and, without seeking leave, filed the Third Amended

Complaint, which the District Court permitted to stand. The defendants then filed



                                                4
motions to dismiss the Third Amended Complaint for failure to state a claim. The

Magistrate Judge again recommended granting the defendants’ motions and dismissing

the Third Amended Complaint with prejudice. The District Court adopted the Magistrate

Judge’s report and entered a judgment in favor of the defendants. This appeal ensued.

                                              II.

       We have jurisdiction under 28 U.S.C. § 1291. We review de novo 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). We first “outline the elements a plaintiff must

plead to state a claim for relief,” then “peel away those allegations that are no more than

conclusions and thus not entitled to the assumption of truth,” and assuming the veracity

of the well-pled factual allegations that remain, “‘determine whether they plausibly give

rise to an entitlement to relief.’” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

                                              III.

       In order to state a claim under 42 U.S.C. § 1983 that prison officials have violated

his Eighth Amendment rights, “a plaintiff must make (1) a subjective showing that ‘the

defendants were deliberately indifferent to [his] medical needs’ and (2) an objective

showing that ‘those needs were serious.’” Pearson v. Prison Health Serv., 850 F.3d 526,

534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)); see also

Estelle v. Gamble, 429 U.S. 97 (1976).



                                               5
       With respect to the second prong, “this Court has defined a medical need as

serious if it has been diagnosed by a physician as requiring treatment.” Atkinson v.

Taylor, 316 F.3d 257, 266 (3d Cir. 2003). Here, McGinnis has sufficiently alleged that

he had serious medical needs requiring treatment for his knee and hernia.

       With respect to the first prong, we have recognized that “there is a critical

distinction ‘between cases where the complaint alleges a complete denial of medical care

and those alleging inadequate medical treatment.’” Pearson, 850 F.3d at 535 (quoting

United States ex. rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)).

       To state a claim for inadequate medical treatment, the plaintiff must allege that the

treatment violated professional standards of care, in addition to alleging that the

defendant acted “with the requisite state of mind [deliberate indifference] when providing

that inadequate care.” Pearson, 850 F.3d at 535. “[M]ere disagreement as to the proper

medical treatment” is insufficient to state an adequacy of care claim, Monmouth Cty.

Corr. Inst. v. Lanzaro, 834 F.2d 326, 346 (3d. Cir. 1987), and we “presume that the

treatment of a prisoner is proper absent [an allegation] that it violates professional

standards of care.” Pearson, 850 F.3d at 535 (citing Brown v. Borough of Chambersburg,

903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is well established that as long as a physician

exercises professional judgment his behavior will not violate a prisoner's constitutional

rights”)).

       In contrast, to state claim based on the delay or denial of medical treatment, “since

there is no presumption that the defendant acted properly, it lacks the objective, propriety

of medical treatment, prong of an adequacy of care claim,” and the plaintiff need only



                                              6
allege that the defendant delayed or denied treatment with deliberate indifference.

Pearson, 80 F.3d at 537. This Court has “found deliberate indifference in a variety of

contexts including where (1) prison authorities deny reasonable requests for medical

treatment, (2) knowledge of the need for medical care is accompanied by the intentional

refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons,

and (4) prison authorities prevent an inmate from receiving recommended treatment for

serious medical needs.” Pearson, 850 F.3d at 538 (citing Lanzaro, 834 F.2d at 347); see

also Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (Eighth Amendment violated

where denial of care “exposes the inmate to undue suffering or the threat of tangible

residual injury”).

       Here, McGinnis argues that he has stated a claim based on the delay or denial of

medical treatment by Defendant Hammer on two occasions: December 29, 2014, and

February 16, 2015. With respect to Hammer’s examination of McGinnis on December

29, 2014, McGinnis has failed to state a delay or denial claim, because the complaint

makes clear that Hammer diagnosed a knee sprain and prescribed ibuprofen on that date.

Cf. Pearson, 850 F.3d at 538 (no denial of care claim where defendant diagnosed and

treated prisoner, even if inadequately—in which case proper claim would be for

inadequate care); see also Parkell v. Danberg, 833 F.3d 313, 338 (3d Cir. 2016) (mere

“brusqueness” insufficient to suggest that delay of treatment was deliberate and for non-

medical reasons, where defendant “did not ignore” plaintiff’s medical needs).

       Neither has McGinnis stated a claim for delay or denial of medical treatment on

February 16, 2015, when Hammer canceled McGinnis’ prescription for ibuprofen,



                                             7
allegedly in retaliation for the prison grievance that McGinnis had filed against Hammer.

McGinnis’ allegation is not plausible because—in the same paragraph of the complaint

where McGinnis makes his sole allegation of retaliation—he also alleges that Hammer

examined his knee, prescribed a hinged knee brace, and canceled the ibuprofen

prescription only after McGinnis told Hammer that the ibuprofen had been ineffective.

McGinnis has not alleged that he requested alternative pain medication or otherwise

made any plausible allegation that Hammer had retaliatory motives.1 McGinnis’

conclusory allegation that Hammer denied the ibuprofen in retaliation for the grievance,

rather than for the reasons apparent on the face of the complaint, fails to state a plausible

claim to relief. See Twombly, 550 U.S. at 570 (2007).2


1
  The same is true with respect to Physician’s Assistant George’s alleged comment that
“if the medical [department] fixed everyone in prison, the state would be bankrupt.”
McGinnis has alleged that this indicates that the MRI was denied based on cost. But in
the same paragraph where McGinnis makes this allegation, he also alleges that George
treated McGinnis, provided better crutches, and ordered x-rays and physical therapy.
Moreover—despite this Court’s having ordered the parties to brief the significance of the
MRI that McGinnis eventually received—McGinnis has failed to argue that any
alternative treatment was necessary based on the MRI. McGinnis has thus failed to
plausibly allege that his MRI was denied for non-medical reasons or that he experienced
“undue suffering or the threat of tangible residual injury” based on the delayed MRI.
Spruill, 372 F.3d at 235.
2
  For similar reasons, to the extent that the District Court should have construed
McGinnis’ allegation as raising a retaliation claim under the First Amendment, McGinnis
has failed to state such a claim. McGinnis must allege that the conduct provoking the
alleged retaliation was constitutionally protected, that he suffered some “adverse action”
at the hands of the prison officials “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights,” and that the constitutionally protected conduct was
a substantial motivating factor in the defendants' conduct. Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001) (alteration in original) (internal quotation marks omitted). McGinnis’
conclusory allegation that his grievance was a substantial motivating factor in Hammer’s
decision to deny ibuprofen fails to “reflect ‘more than a sheer possibility that a defendant
has acted unlawfully.’” Oliver v. Roquet, 858 F.3d 180, 192 (3d Cir. 2017) (quoting


                                              8
       Because McGinnis has failed to state a claim for delay or denial of medical care,

we next address whether he has stated an adequacy of care claim. We agree with the

District Court’s determination that he has not. McGinnis’ adequacy of care claims fail

because we “presume that the treatment of a prisoner is proper absent [an allegation] that

it violates professional standards of care.” Pearson, 850 F.3d at 535 (citing Brown, 903

F.2d at 278 (“[I]t is well established that as long as a physician exercises professional

judgment his behavior will not violate a prisoner's constitutional rights”)). McGinnis has

failed to allege how his treatment fell below any professional standard of care.3 To the

extent McGinnis alleges that he should have received x-rays or an MRI sooner, he

eventually received both tests, and has not alleged that those tests indicated that any

additional or alternative treatment was required. In fact, McGinnis alleges that by

November 2015, he had recovered to the point where he could walk normally and lift

weights.4


Iqbal, 556 U.S. at 678). Moreover, we note that we ordered the parties to brief whether
McGinnis has stated a First Amendment retaliation claim. McGinnis failed to make any
argument in support of this claim against Hammer, and to the extent he raises other First
Amendment claims against other defendants, the claims are meritless.
3
  Moreover, even if Hammer’s treatment could be considered negligent, McGinnis’ claim
would still fail because he did not sufficiently allege deliberate indifference. See Rouse,
182 F.3d at 197 (“Neither negligence nor medical malpractice is sufficient to state a
claim for deliberate indifference”). McGinnis failed to allege that Hammer was “aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists’” and that Hammer “‘also draw the inference.’” Pearson, 850 F.3d at 538 (quoting
Farmer v. Brennan, 511 U.S. 825, 835–37 (1994)).
4
  Similarly, McGinnis failed to allege how the treatment of his hernia fell below any
professional standard of care. McGinnis’ filings indicate that he has received extensive
treatment for his hernia, including surgery. Furthermore, McGinnis has not named as a
defendant any individual involved in the treatment of his hernia. To the extent McGinnis
claims that the treatment of his knee injury caused him to suffer a hernia, that claim lacks


                                              9
       We also agree with the District Court’s determination that McGinnis failed to state

an Eighth Amendment claim against the remaining defendants. Defendants Wood,

Cappoza and Scire are not physicians. A non-medical prison official is not charged with

deliberate indifference for withholding adequate medical care from a prisoner being

treated by medical personnel absent “a reason to believe (or actual knowledge) that

prison doctors or their assistants are mistreating (or not treating) a prisoner.” Spruill, 372

F.3d at 236. Defendant Correct Care Service LLC, as a corporation providing health

services to inmates, may be liable if its custom or policy causes a constitutional violation.

See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003). Here, as

discussed above, McGinnis has failed to allege a constitutional violation, let alone one

that the non-medical officials had a reason to be aware of, or that Correct Care Service

caused as a result of its custom or policy.5

       Finally, we agree with the District Court that granting leave to further amend

would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). The District Court allowed McGinnis to amend his complaint three times




facial plausibility—McGinnis alleged that his knee had recovered and he had resumed
lifting weights before he suffered the hernia. See Twombly, 550 U.S. at 570.
5
  We agree with the District Court that, to the extent McGinnis alleged a conspiracy
among these defendants, his conclusory allegations fail to state a claim. See Twombly,
550 U.S. at 570; see generally 42 U.S.C. §§ 1985(3), 1986. Similarly, McGinnis’
allegations regarding the processing of his medical grievances fail to state a plausible
claim under 42 U.S.C. § 1983 that any constitutional right was violated.


                                               10
over the past two years. Permitting further amendment would be inequitable to the

defendants, and McGinnis has not shown that further amendment would be fruitful.6

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

motion for entry of default is denied.




6
  We note that McGinnis submitted two declarations in opposition to the motions to
dismiss. To the extent those declarations raise new claims which are unrelated to—and
occurred subsequent to—the allegations in the Third Amended Complaint, we agree with
the District Court’s determination that McGinnis should pursue these claims through
separate litigation and after proper administrative exhaustion.


                                           11
