ELD-001                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 13-1598
                                 ___________

                          LARRY DALE JOHNSON,
                                       Appellant

                                       v.

                  MICHAEL CASH, (Doctor of Osteopathy);
                   JAMES KREPPS, “JIM” (Physicians Assistant) and
                    unidentified medical providers and correction officers
                  ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                         (D.C. Civil No. 3-11-cv-00158)
                   District Judge: Honorable Kim R. Gibson
                  ____________________________________

          Submitted for Possible Dismissal Due to a Jurisdictional Defect,
            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
                                 October 8, 2013

          Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                       (Opinion filed: October 11, 2013 )
                                   _________

                                   OPINION
                                   _________




                                        1
PER CURIAM


       Pro se appellant Larry Dale Johnson seeks review of the District Court’s order

dismissing his civil rights complaint brought pursuant to Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Because this appeal does

not present a substantial question, we will summarily affirm.

       Johnson, a federal inmate, filed a Bivens action against Michael Cash, medical

director at the Federal Correctional Institution at Loretto (FCI-Loretto). The complaint

alleged that Cash was deliberately indifferent to Johnson’s medical needs in violation of

the Eighth Amendment. At the initial screening, the Magistrate Judge recommended that

the complaint be dismissed sua sponte for failure to state a claim. Johnson was provided

an opportunity to amend his complaint to cure the defects. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The complaint was amended to include

defendants James Krepps, a physician’s assistant, as well as unidentified medical

providers and correction officers at FCI-Loretto. The amended complaint was dismissed

for failure to state a claim and leave to amend was denied as “inequitable.” A

subsequent motion for reconsideration was denied, and this appeal ensued. 1




1
   The appeal was initially listed for possible dismissal due to a jurisdictional defect.
Because it appeared that Johnson never received a copy of the final order, we remanded
the matter and directed the District Court to construe Johnson’s filings as a motion to
extend the time to appeal pursuant to Fed. R. App. P. 4(a)(6). The District Court
subsequently granted the Rule 4(a)(6) motion, and Johnson timely appealed.
                                             2
        We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the dismissal. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). To

survive a motion to dismiss, a complaint must “state a claim that is plausible on its face”

by including facts which “permit the court to infer more than the mere possibility of

misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

        To succeed on his Eighth Amendment claim, Johnson must prove that (1)

objectively the deprivation of a basic human need was “sufficiently serious” and (2)

subjectively the prison official acted with a “sufficiently culpable state of mind.” Wilson

v. Seiter, 501 U.S. 294, 298 (1991). The subjective component is satisfied by

demonstrating that the prison official acted with deliberate indifference. Id. at 302.

The District Court found that Johnson had adequately demonstrated that he had a serious

medical condition – degenerative disc disease -- but that he failed to allege any facts that

indicate the defendants were aware of any serious medical need that they were not

treating.

        In his complaint, 2 Johnson alleged that defendants were deliberately indifferent to

his medical needs when they failed to provide him with adequate medical care for his

degenerative disc disease or transfer him to a medical facility. Specifically, he

maintained that defendants failed to follow the course of treatment recommended by his

private (non-prisoner) medical providers, including an MRI, x-rays, and surgery. In

reviewing the sufficiency of a complaint, a court may consider any documents attached

2
    The initial complaint was incorporated into the amended complaint.
                                              3
thereto. Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). The

attachments to the complaint evidence that defendants neither ignored Johnson’s medical

condition nor provided grossly inadequate care. See Farmer v. Brennan, 511 U.S. 825,

835 (1994) (deliberate indifference requires more than negligence). Indeed, in the two

months he was housed at FCI-Loretto, Johnson was evaluated by the medical staff,

received treatment in the form of injections for pain, and was prescribed (although he

refused to take) pain medication.

       The record indicates that Johnson has, at most, a disagreement with the course of

treatment being provided by the prison medical staff. The failure to perform x-rays or

order additional diagnostic tests does not rise to the level of cruel and unusual

punishment. Estelle v. Gamble, 429 U.S. 97, 107 (1976) (the failure to perform an X-ray

or to use additional diagnostic techniques does not constitute cruel and unusual

punishment but is at most medical malpractice). Moreover, his allegation that he

requested a four-wheeled walker with a seat, but was given a two-wheeled walker instead

is wholly insufficient. See United States ex. rel. Walker v. Fayette County, 599 F.2d 573,

575 n.2 (3d Cir. 1979) (“Where 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.”). To the extent that Johnson believes he should have received a different course of

treatment, his claim fails as a matter of law. See Monmouth Cnty. Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (a difference of medical opinion
                                              4
does not constitute deliberate indifference); see also McCracken v. Jones, 562 F.2d 22, 24

(10th Cir. 1977) (a prison doctor’s use of a different treatment regimen than that

prescribed by a private physician does not amount to deliberate indifference for purposes

of the Eighth Amendment).

       Because the facts here are simply insufficient to support a deliberate indifference

claim, the complaint was properly dismissed. 3 We agree with the District Court that

granting leave to amend a second time would be unwarranted. Accordingly, we will

summarily affirm the appeal.




3
   Although it was not directly addressed by the District Court, to the extent Johnson
sought to plead a claim for the denial of access to the courts, the claim is properly
dismissed as vague and conclusory. See Iqbal, 556 U.S. at 678 (a complaint must contain
more than “‘naked assertions’ devoid of ‘further factual enhancement.’” ) (citation
omitted).
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