CLD-301                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 18-1589
                                      ___________

                                  JUNIUS P. LEISURE,
                                                Appellant

                                             v.

            LANCASTER COUNTY PRISON; DIRECTOR OF NURSING;
            PRIMECARE, (Healthcare Provider) et al; NURSE A; NURSE B
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 5:17-cv-04603)
                     District Judge: Honorable Joseph F. Leeson, Jr.
                      ____________________________________

       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
                                   August 30, 2018
       Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges

                           (Opinion filed: September 18, 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.
          Junius Leisure appeals from the District Court’s order dismissing his complaint

brought pursuant to 42 U.S.C. § 1983. For the reasons detailed below, we will summarily

affirm.

                                                I.

          Leisure, who is proceeding pro se, filed this civil action alleging a federal claim of

deliberate indifference and a state-law claim of medical negligence.1 According to

Leisure, he suffers from recurring ear wax build-up, which requires him to clean his ears

periodically. Leisure alleged that, while incarcerated at the Lancaster County Prison, two

nurses (Nurse A and Nurse B) performed the procedure incorrectly. Leisure claims that

the nurses skipped the ear wax loosening part of the procedure, and Nurse A (whom he

believes was performing the procedure for the first time) plunged scalding hot water into

his ear with a syringe, causing him to vomit and experience pain. When Nurse B came

back into the room, Leisure complained that the water was too hot, and Nurse B cleaned

his ear with cold water. The nurses gave Leisure ear drops and scheduled him a follow-

up appointment. Not long after this occurred, Leisure was transferred to a different

prison. During a routine examination at the new prison, an audiologist informed Leisure

that he had some hearing loss.




1
 Leisure also filed two supplemental pleadings. Considering the supplements, the
District Court noted that it appeared that Leisure had abandoned his § 1983 claim and
sought to proceed only with the medical negligence claim. Leisure asserts that the
District Court was wrong because he sought to pursue both. It does not matter, however,
because the District Court still evaluated Leisure’s deliberate indifference claim while
adjudicating the defendant’s motion to dismiss.
                                                 2
       Attributing his hearing loss to the procedure performed by the nurses, Leisure filed

this suit against the nurses, the Director of Nursing of the prison, Primecare Medical,

Inc., and the prison. At screening, the District Court dismissed the prison as a defendant

after holding that a prison is not a “person” subject to suit under federal civil rights laws.

Primecare Medical then filed a motion to dismiss the claims against the remaining

defendants pursuant to Federal Rule of Civil Procedure 12(b)(6), which the District Court

granted, in part. The District Court concluded that Leisure’s allegations did not state an

Eighth Amendment claim against Primecare Medical or any of the defendants, and held

that amendment would be futile.2 The District Court also declined to exercise

supplemental jurisdiction over Leisure’s state-law medical negligence claim. Leisure

appeals and requests the appointment of counsel.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over dismissals under § 1915(e)(2)(B)(ii) and Rule 12(b)(6). See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000) (dismissals under § 1915); Howard Hess Dental Labs. Inc.

v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010) (dismissals under Rule 12(b)(6)).

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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We may



2
 The District Court dismissed the federal claim against the nurses and the Director of
Nursing (who had not been served and who were not parties to Primecare Medical, Inc.’s
motion) pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
                                              3
summarily affirm the District Court’s ruling if there is no substantial question presented

on appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

                                             III.

       Upon review, we will summarily affirm the District Court’s judgment. The

District Court properly dismissed Leisure’s Eighth Amendment claim. Through its

prohibition of cruel and unusual punishment, the Eighth Amendment forbids the

imposition of “unnecessary and wanton infliction of pain contrary to contemporary

standards of decency.” Helling v. McKinney, 509 U.S. 25, 32 (1993). To succeed on an

Eighth Amendment medical care claim, “a plaintiff must make (1) a subjective showing

that ‘the defendants were deliberately indifferent to [his or her] 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) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999)).

       According to Leisure, before being incarcerated, he cleaned his ears himself by

purchasing the necessary supplies at a drug store. Therefore, it is unclear whether his

recurring ear wax build-up presented a serious medical need. See Monmouth Cty. Corr.

Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (explaining that a

serious medical need is “one that has been diagnosed by a physician as requiring

treatment or one that is so obvious that a lay person would easily recognize the necessity

for a doctor’s attention”). However, even if it did, Leisure has failed to allege that the

defendants acted with deliberate indifference. Deliberate indifference can occur when

prison officials “intentionally deny[] or delay[] access to medical care or interfer[e] with

                                              4
the treatment once prescribed.” Pearson, 850 F.3d at 534 (quoting Estelle v. Gamble, 429

U.S. 97, 104-05 (1976)) (internal quotation marks omitted). “In order to succeed in an

action claiming inadequate medical treatment, a prisoner must show more than

negligence.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (citing Estelle, 429

U.S. at 104-06).

       Here, if the nurses deviated from professional standards of care, the deviation did

not amount to deliberate indifference. See Pearson, 850 F.3d at 541 (concluding that the

nurse violated the Eighth Amendment because not only did he deviate from professional

standards of care, but he also had “non-medical motive[s]” for such conduct and

repeatedly ignored the plaintiff’s treatment requests). Based on Leisure’s own

allegations, the nurses promptly evaluated Leisure, performed a procedure to clean his

ears, and scheduled him a follow-up appointment. While Leisure argues that the nurses

incorrectly performed the procedure – which he believes caused him hearing loss – his

claims amount to, at most, negligence, which is not sufficient to make out an Eighth

Amendment claim. See Durmer, 991 F.2d at 67; see also Monmouth Cty. Corr.

Institutional Inmates, 834 F.2d at 346 (“[M]ere allegations of [medical] malpractice do

not raise issues of constitutional import.”). In sum, by Leisure’s account, the nurses did

not act with the “obduracy and wantonness” necessary to sustain an Eighth Amendment

violation. See Whitley v. Albers, 475 U.S. 312, 319 (1986).3


3
  Because we find no constitutional violation, it follows that any possible supervisory
liability claim cannot stand. See Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d
Cir. 2014), rev’d on other grounds, Taylor v. Barkes, 135 S. Ct. 2042 (2015) (per
curiam). Moreover, Leisure cannot satisfy any plausible claim under Monell v. New
                                             5
         As we conclude that the District Court properly dismissed the federal claim, we

perceive no abuse of discretion in the District Court’s decision to decline to exercise

supplemental jurisdiction on the state-law medical negligence claim. See 28 U.S.C. §

1367(c)(3); Figueroa v. Buccaneer Hotel, Inc., 188 F.3d 172, 181 (3d Cir. 1999). Finally,

the District Court did not err in ruling that any amendment to Leisure’s complaint would

have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002).

                                             IV.

         For the above reasons, we will affirm the District Court’s judgment.4




York City Department of Social Services, 436 U.S. 658 (1978). Id. at 694-95 (explaining
that § 1983 liability requires the action to be based on the “execution of a government’s
policy or custom” that actually results in a constitutional violation); see also Mulholland
v. Gov’t Cty. of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013).
4
    We deny Leisure’s motion for appointment of counsel.
                                              6
