                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-2281
                                       ___________

                                      INELL FOYE,
                                               Appellant

                                             v.

  WEXFORD HEALTH SOURCES INC.; MARK HALE, Corr. Care Sol.; PATRICK
 CUMMISKEY, Dept. of Corr, SCI Coal Township; WARDEN VINCENT MOONEY,
SCI Coal Township; JODIE MARTINO, Corrections Health Care Administrator; CHRIS
    T. YACKIEL, RN Supervisor; BRIAN DAVIS, Physicians Assistant; DORINA
                        VARNER, Chief Grievance Officer
                    ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3:14-cv-02478)
                    District Judge: Honorable William J. Nealon, Jr.
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 6, 2017

              Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

                            (Opinion filed: January 10, 2017)
                                     ___________

                                        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.
       Inell Foye, a prisoner confined at State Correctional Institution at Coal Township,

Pennsylvania (“SCI-Coal Township”) appeals pro se from the District Court’s dismissal

of his claims against the majority of the defendants and entry of judgment in favor of the

remaining defendants. For the reasons that follow, we will affirm.

                                             I

       Foye filed a 42 U.S.C. § 1983 action relating to his treatment for repeated shoulder

dislocations (which occurred on December 11, 2013, May 3, 2014, and August 13, 2014)

while he was an inmate at SCI-Coal Township. Foye alleged deliberate indifference and

negligence, and pendent state law claims of medical negligence and medical malpractice

against (1) Wexford Health Sources, Inc., Mark Hale, and Brian Davis (“Medical

Defendants”); (2) Vincent Mooney, Jodie Martino, Chris T. Yackiel, and Dorina Varner

(“Corrections Defendants”); and (3) Patrick Cumminskey, Pennsylvania Department of

Corrections, and SCI-Coal Township (“State Defendants”).

       The Corrections Defendants filed a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). The Medical Defendants filed a motion to dismiss or, in the

alternative, for summary judgment pursuant to Rule 56. Foye requested, but did not

receive, a stay pending receipt of the results of an MRI. The District Court instead

granted the Medical Defendants’ motion to stay discovery. The District Court dismissed

the claims against the Corrections Defendants with prejudice, entered judgment in favor

of the Medical Defendants, and declined to exercise supplemental jurisdiction over

Foye’s state law claims. In addition, the District Court screened and dismissed the claims



                                             2
against the State Defendants pursuant to 28 U.S.C. § 1915A and 28 U.S.C.

§ 1915(e)(2)(B). Foye appeals.1

                                              II

         We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a

District Court’s decision to grant a motion to dismiss pursuant to Rule 12(b)(6). Fowler

v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). To state a legally sufficient

claim for relief, a plaintiff need only plead enough factual content, taken as true, to

support “the reasonable inference that the defendant is liable for the misconduct alleged.”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We review a District Court’s grant of

summary judgment de novo. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.

2007). Summary judgment is proper where the moving party 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). We review for abuse of discretion both the District

Court’s ruling on the motion for additional discovery pursuant to Rule 56(d) and the

District Court’s refusal to exercise supplemental jurisdiction. Murphy v. Millennium

Radio Grp. LLC, 650 F.3d 295, 310 (3d Cir. 2011); Elkadrawy v. Vanguard Grp., Inc.,

584 F.3d 169, 172 (3d Cir. 2009).




1
    Foye also seeks the appointment of counsel.
                                              3
                                              III

    1. Federal Claims

    a. The Corrections Defendants

       We agree with the District Court that Foye failed to state a claim against the

Corrections Defendants in their official capacities because the Eleventh Amendment bars

suit. See MCI Telecom. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503-04 (3d Cir. 2001);

Edelman v. Jordan, 415 U.S. 651, 663 (1974); see also Lavia v. Pennsylvania, Dep’t of

Corr., 224 F.3d 190, 195 (3d Cir. 2000).

       Foye has also failed to state a claim against the Corrections Defendants in their

individual capacities. He alleged that the Corrections Defendants violated his Eighth

Amendment rights by denying his inmate request slip, grievances, and administrative

appeals, but he did not allege that any of the Correctional Defendants were personally

involved in his medical care. See Polk County v. Dodson, 454 U.S. 312, 325 (1981)

(holding that liability in a § 1983 action must be predicated on personal involvement, not

on the basis of respondeat superior). Moreover, with the possible exception of Yackiel,2

the Corrections Defendants are not physicians. In denying Foye’s administrative

remedies, the Corrections Defendants merely deferred to the judgment of medical

personnel. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“If a prisoner is under

the care of medical experts . . ., a non-medical prison official will generally be justified in

believing that the prisoner is in capable hands.”); see also Durmer v. O’Carroll, 991 F.2d


2
  Yackiel is the R.N. supervisor at SCI-Coal Township. It is unclear whether Yackiel has
a medical degree.
                                               4
64, 69 (3d Cir. 1993). Accordingly, Foye failed to state a claim against the Corrections

Defendants.

    b. The Medical Defendants

       Although Foye challenges the grant of summary judgment in general, his main

claim is that the District Court ruled without granting his motion for the additional

discovery of the results from an MRI performed on May 4, 2015.3 Rule 56(d) requires “a

party seeking further discovery in response to a summary judgment motion [to] submit an

affidavit specifying, for example, what particular information is sought; how, if

uncovered, it would preclude summary judgment; and why it has not previously been

obtained.” Dowling v. City of Philadelphia, 855 F.2d 136, 139-40 (3d Cir. 1988)

(discussing the predecessor to Rule 56(d), Rule 56(f)). Except in rare cases, “failure to

comply with [Rule 56(d)] is fatal to a claim of insufficient discovery on appeal.” Bradley

v. United States, 299 F.3d 197, 207 (3d Cir. 2002).

       In his response to the Medical Defendants’ motion, Foye requested a stay and

abeyance until he received the results of a recently administered MRI.4 Foye did not

comply with Rule 56(d) in the District Court; he did not invoke the Rule or submit an




3
 In his brief, Foye also alleges that the District Court erred in failing to grant him
discovery of the results of a CT scan. However, Foye did not request the results of a CT
scan in the District Court, so we do not consider this claim. Cf. Delaware Nation v.
Pennsylvania, 446 F.3d 410, 416 & n.9 (3d Cir. 2006).
4
 Foye’s medical records from January 2013 through March 4, 2015, were attached to the
Medical Defendants’ motion.


                                             5
affidavit to the District Judge. Thus, “as a procedural matter alone, [Foye] has failed to

comply with the rule.” Dowling, 855 F.2d at 140.

       Even if we were to consider Foye’s motion as an affidavit, we would conclude that

the District Court did not abuse its discretion in ruling that additional discovery was not

warranted. Foye claimed that “[t]he results from the MRI and [c]onsultation will reveal

the nature and extent of the ‘exact damage’ of [his] right shoulder due to the recurrent

dislocations and injuries sustained.” This vague statement does not explain how the

results of the MRI would demonstrate the defendants’ deliberate indifference. See

Hancock Indus. v. Schaeffer, 811 F.2d 225, 230 (3d Cir. 1987). The statement can be

understood to suggest that Foye wanted to show that his recurrent shoulder injuries

constituted a serious medical need. However, that fact was not in dispute. For these

reasons, we conclude that the District Court did not abuse its discretion in deciding the

summary judgment motion without allowing Foye to obtain the MRI results.

       The District Court also properly granted summary judgment in favor of the

Medical Defendants. Foye’s claims against the Medical Defendants are based on his

belief that he should have been treated through the immediate use of an MRI or an

orthopedic consult. “Deliberate indifference” may be inferred when a prison official

knows of a prisoner’s need for medical treatment but intentionally fails to provide it;

delays necessary medical treatment for a non-medical reason; or prevents a prisoner from

receiving medical treatment that was needed or recommended. Rouse v. Plantier, 182

F.3d 192, 197 (3d Cir. 1999). The record demonstrates that Foye was seen by prison staff

within a day of his injuries or request for a medical visit. On each visit, prison staff

                                              6
evaluated Foye and treated his injury. Foye’s disagreement about his course of treatment,

namely, that an MRI or consult should have been ordered, does not demonstrate that the

Medical Defendants were deliberately indifferent to his medical needs. Mere

disagreement as to the proper medical treatment will not support a claim under the Eighth

Amendment. Spruill, 372 F.3d at 35. Courts will “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 Cty. Jail v. Pierce, 612

F.2d 754, 762 (3d Cir. 1979) (citation omitted); see also White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990) (“[N]o claim is stated when a doctor disagrees with the

professional judgment of another doctor. There may, for example, be several acceptable

ways to treat an illness.”).

          Additionally, Foye failed to allege any personal involvement by Hale. Hale, who

is the President and CEO of Wexford Health, was not alleged to have any involvement in

Foye’s treatment other than through his supervisory position. See Polk County, 454 U.S.

at 325.




                                              7
   c. The State Defendants

       Similarly, the dismissal of the claims against Cumminskey, the President of

Correctional Care Solutions, was proper as Foye failed to allege he was personally

involved. See Polk County, 454 U.S. at 325. As the District Court concluded, SCI Coal-

Township and the Pennsylvania Department of Corrections are entitled to Eleventh

Amendment immunity from suit and are not persons subject to suit under 42 U.S.C.

§ 1983. See Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981); Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Accordingly, the District Court

properly dismissed the claims against the State Defendants for failing to state a claim

upon which relief could be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A.

   2. State Law Claims

       Foye’s remaining allegations of medical malpractice and medical negligence arise

under state law, and the District Court did not abuse its discretion in declining to exercise

supplemental jurisdiction over Foye’s state law claims in the absence of any actionable

federal claim. See 28 U.S.C. § 1367(c); Elkadrawy, 584 F.3d at 174.

       For the foregoing reasons, we will affirm the order of the District Court. We deny

Foye’s request for counsel.




                                              8
