                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 10-1728
                                   ____________

                               F. SCOTT WINSLOW,
                                            Appellant

                                         v.

                         PRISON HEALTH SERVICES (PHS);
                              (PA) JENNIFER PORTA;
                             DR. RENATO DIAZ, (MD);
                            STANLEY STANDISH, (MD)
                                   ____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                         (D.C. Civil No. 08-cv-00785)
                 District Judge: Honorable Sylvia H. Rambo
                                ____________

                    Submitted Under Third Circuit LAR 34.1(a)
                                January 11, 2011
                                 ____________

            Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                          (Opinion Filed: January 20, 2011)
                                   ____________

                                     OPINION
                                   ____________

BARRY, Circuit Judge

     F. Scott Winslow sued Prison Health Services (“PHS”) and several of its
employees, alleging that he received constitutionally inadequate medical treatment for a

hernia while incarcerated at SCI-Retreat, a Pennsylvania state prison. The District Court

dismissed part of Winslow’s case on Defendants’ motion to dismiss and disposed of the

remainder on Defendants’ motion for summary judgment. Winslow appeals both

decisions. We will affirm.

                                       I. Background1

                             A. Facts Prior to February 22, 2008

          On August 19, 2007, while working at SCI-Retreat, Winslow felt a “pop” and later

noticed a lump in his groin. Eight days later, after treating himself with Ibuprofen, he

reported to the medical staff. He was instructed to return the following day, and on

August 28, 2007, he was examined by Defendant Jennifer Porta, a physician’s assistant.

          Porta diagnosed Winslow with a left inguinal hernia. While she believed that the

hernia was reducible, she could not confirm this belief, as there was inadequate space for

Winslow to recline. She prescribed Motrin, instructed him to avoid strenuous activity,

and told him to sign up for sick call if his symptoms worsened.

          On September 7, 2007, a prison nurse evaluated Winslow before he was to be

placed in the Restricted Housing Unit (“RHU”). The nurse found no reason that he could

not be placed in the RHU, and the nurse’s notes are silent regarding pain or Winslow’s

hernia.


1
 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction
under 28 U.S.C. § 1291.
                                          2
       Several months elapsed before Winslow again sought treatment pertaining to the

hernia. Indeed, when he was examined by Defendant Dr. Renato Diaz on January 14,

2008, for complications relating to his asthma, Winslow made no mention of his hernia.

He did not again seek treatment for his hernia until January 18, 2008, when Porta saw

him, confirmed that the hernia was reducible, and scheduled an examination with

Defendant Dr. Stanley Stanish, sued here as Dr. Standish.

       Dr. Stanish saw Winslow on January 28, 2008. His notes from that visit indicate

that “since there is no evidence of incarceration or strangulation and when there is some

drop thru there is a reduction, there is no need for surgical repair at this time.” (App. 49.)

Dr. Stanish prescribed Motrin, various restrictions on physical activity, and a hernia belt,

noting that “[i]t is not what he wants but may be all he needs” and that “[b]y exam he is

not in need of anything further.” (Id. 50.) According to Winslow’s deposition, Dr.

Stanish informed him that “if you were on the street most HMOs and care facilities, they

wouldn’t address this situation [because] it’s too costly.” (Id. 140) Winslow further

stated that Dr. Stanish “went into some spiel about, you know, they don’t do that anymore

and the management healthcare and the costs.” (Id.)

       Winslow returned to pick up his hernia belt on January 28, 2008. The available

belt was too large, however, and so another was ordered. Before receiving his belt,

Winslow was examined by Dr. Diaz on February 11, 2008. Dr. Diaz agreed that the

hernia was reducible, and so he prescribed Motrin and ordered a scrotal support.


                                              3
Winslow was seen by Porta on February 19, 2008, as he was complaining of pain in the

left groin and difficulty with bowel movements. Porta prescribed Motrin and Metamucil.

Three days later, on February 22, 2008, Winslow received his hernia belt.

                       B. Facts After the Issuance of the Hernia Belt

        Because the District Court dismissed Winslow’s claims arising after he was issued

a hernia belt on Defendants’ motion to dismiss, it considered only the complaint’s

allegations pertaining to this period, the relevant portions of which are excerpted below:

        Following my family contacting the medical department I was finally issued
        a hernia belt that does nothing for the severe pain that I am in constantly.

        ...

        The Defendants in this case specifically told me that they would not do
        anything for me until I was either being “strangled to death” or the hernia
        moves into my scrotum.

        Prison Health Services policies to save money and other policies are the
        direct and proximate cause of the deliberate indifference to my serious
        medical needs that I am being forced to endure.

(Id. 44.)
                                   C. Procedural History

        Winslow filed suit on April 28, 2008, proceeding pro se. Defendants moved to

dismiss, and on October 23, 2008, the District Court dismissed the complaint to the extent

it raised claims after February 22, 2008, the date on which Winslow received his hernia

belt.

        After the partial denial of Defendants’ motion, the District Court appointed


                                              4
counsel on Winslow’s behalf. Following discovery, Defendants moved for summary

judgment, and the Court granted the motion on February 12, 2010. Winslow timely

appealed.

                                     III. Discussion

                                    A. Applicable Law

       The Eighth Amendment’s prohibition of cruel and unusual punishment requires

prison officials to provide basic medical treatment to inmates. See Estelle v. Gamble, 429

U.S. 97, 104 (1976). Critically, however, “a complaint that a physician has been

negligent in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment,” and so “malpractice does not

become a constitutional violation merely because the victim is a prisoner.” Id. at 106.

Rather, a constitutional violation requires “deliberate indifference,” which may be

manifested by “intentionally denying or delaying access to medical care or intentionally

interfering with the treatment once prescribed.” Id. at 104-05 (footnote omitted). “[A]s

long as a physician exercises professional judgment his behavior will not violate a

prisoner’s constitutional rights.” Brown v. Borough of Chambersburg, 903 F.2d 274, 278

(3d Cir. 1990).

                  A. Motion to Dismiss: Claims After February 22, 2008

                                  1. Standard of Review

       A court may only grant a Rule 12(b)(6) motion where the plaintiff fails to plead


                                             5
“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). A litigant’s pro se status requires a court to construe

the allegations in the complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

                                         2. Analysis

       Defendants moved to dismiss Winslow’s complaint in its entirety, arguing that the

allegations did not support a claim of deliberate indifference. The District Court agreed

only in part, finding that once Winslow was issued a hernia belt, his claim became one of

medical negligence, rather than indifference. In other words, the Court reasoned, while

the complaint contained a plausible claim that Winslow was denied medical care outright

prior to the issuance of the hernia belt, once he was issued the belt, he had pleaded no

facts suggesting that Defendants “kn[ew] of and disregard[ed] an excessive risk to inmate

health or safety.” See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Rather, the Court

explained, “Plaintiff may not agree with the treatment he is receiving, but that

disagreement alone does not give rise to an Eighth Amendment claim.” (App. 13)

       Winslow argues on appeal that he did sufficiently plead deliberate indifference

following the issuance of the hernia belt, as the decision to treat his hernia with a belt

instead of with surgery was improperly motivated by non-medical factors, principally

cost. As noted above, the complaint alleged that Winslow was harmed by DHS “policies

to save money,” (id. 44), and the denial of medical care, when based on non-medical

factors, may violate the Eighth Amendment. See Monmouth County Corr. Inst. Inmates


                                              6
v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (“If necessary medical treatment is delayed

for non-medical reasons, a case of deliberate indifference has been made out.” (internal

quotation marks and alterations omitted)). Nevertheless, the District Court correctly ruled

that Winslow had failed to state a claim.

       For one thing, the complaint’s allegation that Winslow was harmed by “policies to

save money” is exceedingly conclusory; the complaint does not provide any indication

either of (1) what the relevant policies are, (2) what basis he has for thinking that

“policies to save money” affected his medical treatment, or (3) what specific treatment he

was denied as a result of these policies. More fundamentally, the naked assertion that

Defendants considered cost in treating Winslow’s hernia does not suffice to state a claim

for deliberate indifference, as prisoners do not have a constitutional right to limitless

medical care, free of the cost constraints under which law-abiding citizens receive

treatment. See Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir. 1997) (“[T]he deliberate

indifference standard of Estelle does not guarantee prisoners the right to be entirely free

from the cost considerations that figure in the medical-care decisions made by most non-

prisoners in our society.”); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006)

(“The cost of treatment alternatives is a factor in determining what constitutes adequate,

minimum-level medical care, but medical personnel cannot simply resort to an easier

course of treatment that they know is ineffective.” (citations omitted)); Caines v.

Hendricks, No. 05-1701, 2007 WL 496876, at *8 (D.N.J. Feb. 9, 2007) (“[I]t is not a


                                              7
constitutional violation for prison authorities to consider the cost implications of various

procedures, which inevitably may result in various tests or procedures being deferred

unless absolutely necessary.”).

         Thus, because the complaint pleaded only that Winslow was subjectively

dissatisfied with his medical treatment and alleged in the most conclusory terms that

Defendants considered cost in providing his care, the District Court properly dismissed

his claims arising after he was issued a hernia belt.

           B. Motion for Summary Judgment: Claims Before February 22, 2008

                                   1. Standard of Review

         We review a district court’s grant of summary judgment de novo, viewing the

underlying facts in the light most favorable to the party opposing the motion. Pa. Coal

Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). A district court’s grant of summary

judgment is proper only if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

                                         2. Analysis

         The District Court ruled that the evidence pertaining to the period between August

27, 2007, when Winslow first complained of hernia symptoms, and February 22, 2008,

when he was issued a hernia belt, could not support a finding of deliberate indifference.

Specifically, it noted that after first complaining of hernia symptoms, Winslow did not


                                              8
again seek medical care for the hernia until January 18, 2008. It also noted that each time

that Winslow sought treatment for the hernia in 2008, he received treatment. Though the

Court recognized that Winslow wanted his hernia to be treated surgically, it concluded

that disagreement with a medical decision that the medical provider subjectively

perceives to be reasonable does not give rise to a constitutional claim.

       On appeal, Winslow returns to the argument that Defendants’ refusal to order

surgery was improperly influenced by non-medical factors. Thus, he relies on Dr. Diaz’s

alleged statement — made after the initiation of this litigation — that “we’re not doing

nothing for you” because it “costs too much money.” (App. 149). He also points to Dr.

Stanish’s comment that if Winslow were not incarcerated, many HMOs would decline to

cover this procedure. (Id. 140.)

       Winslow is correct that there is some record evidence suggesting that Defendants

considered the cost of his treatment, among other factors, in declining to order surgery.

Yet the record is equally clear that Dr. Diaz and Dr. Stanish did not focus exclusively or

even predominantly on cost and that the treatment that they ordered was consistent with

their professional judgment. According to Porta, “Standard medical treatment for a

reducible hernia would be pain relief, as well as monitoring, and just generally, you know,

precautions, safety precautions as far as lifting goes.” (Id. 90.) Dr. Stanish explained that

he did not order surgery because Winslow’s hernia was not strangulated or incarcerated,

and thus that it could heal with a more conservative treatment. Finally, Dr. Diaz testified


                                             9
that the standard treatment for an inguinal hernia was non-surgical, and that with proper

treatment, a hernia could heal without surgical intervention. Winslow challenges all of

these statements, even offering an expert report contending that hernias generally require

surgery. Yet even if those persons who treated Winslow are incorrect about certain

medical facts, negligence does not demonstrate a deliberate indifference to Winslow’s

medical needs. As noted above, moreover, Winslow does not have a constitutional right

to unlimited medical care of his choosing, free from all considerations of cost.

Accordingly, the District Court appropriately granted summary judgment to Defendants

for claims arising prior to the issuance of a hernia belt.2

                                       III. Conclusion

       We will affirm the orders of the District Court.




2
 The District Court granted summary judgment to PHS on the additional ground that
Winslow had failed to point to a specific practice or policy responsible for his
mistreatment. Winslow does not challenge this holding on appeal.
                                         10
