PSM-225                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-2879
                                     ___________

                               RUSSELL STEEDLEY,
                                              Appellant

                                           v.

      JAMES MCBRIDE, RMD; CORRECTIONAL MEDICAL SERVICES;
 RICHARD KERNEY, BUREAU CHIEF FOR DEPARTMENT OF CORRECTIONS;
               DR. RIVERA, PHYSICIAN FOR THE DOC
               ____________________________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                            (D.C. Civil No. 1-10-cv-00215)
                     District Judge: Honorable Gregory M. Sleet
                     ____________________________________

                Submitted Pursuant to Third Circuit L.A.R. 34.1 (a)
                              September 23, 2011
       Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: October 4, 2011)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Russell Steedley, a pro se plaintiff incarcerated at the James T. Vaughn

Correctional Center in Delaware, filed suit in March 2010, accusing the defendants—

Correctional Medical Services (―CMS‖) and its acting Regional Medical Director, James
McBride—of failing to adequately test or otherwise treat two large lumps on his body,

lumps which he (and several medical professionals) worried could pose a serious health

risk. Steedley requested injunctive relief in the form of a surgical procedure to remove

the lumps or authorization of tests previously approved by medical staff,1 compensatory

damages (the ―cost of litigation,‖ which he estimated to be $5,000), and punitive

damages. Attached to his complaint were several additional submissions and motions,

the content of which expanded upon the allegations contained in his short complaint: a

motion for appointment of counsel, ECF No. 3; a motion for a preliminary injunction,

asking the District Court to compel CMS to provide the requested care, ECF No. 4; a

memorandum of law in support of his injunction request, ECF No. 6; and numerous

affidavits and other documents collected into an appendix. Steedley filed an amended

complaint several months later.

       On June 1, 2010, the District Court sua sponte dismissed the case as frivolous.

―Even when reading the [original] complaint in the most favorable light to Steedley,‖ the

Court determined, ―he fails to state an actionable constitutional claim against defendants

for deliberate indifference to a serious medical need.‖ Op. 5, ECF No. 14. Steedley‘s

―disagreement [with the medical treatment he received] . . . does not transfer into a

constitutional violation by the defendants. Moreover, the allegations fall under the aegis


1
  The Appellees state that CMS ―no longer provide[s] medical care to the Delaware
Department of Corrections.‖ Br. of Appellees 2; see also Esteban Parra, New Deals to
Change Health Care in Prisons, News J. (Del.), May 5, 2010, available at
http://www.doc.delaware.gov/news/10press0505.pdf. Should this be true, Steedley‘s
requests for injunctive relief would be moot, with the defendants no longer able to
provide the medical relief he seeks.
                                             2
of a medical malpractice/negligence claim, rather than deliberate indifference.‖ Id. The

District Court declined to grant leave to amend on the ground of futility. Its order denied

as moot Steedley‘s request for counsel and his motion for a preliminary injunction. The

amended complaint, filed a few days earlier, was not discussed in the opinion or order.

Steedley appealed.2

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

review of the District Court‘s dismissal. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000). In conducting our review, we are required to accept all well-pleaded allegations

as true and draw all reasonable inferences in Steedley‘s favor. Capogrosso v. Sup. Ct. of

N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam). In determining whether a complaint

should be dismissed, we rely on ―the complaint, attached exhibits, and matters of public

record,‖ Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007) (citing Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), which

―must contain sufficient factual matter, accepted as true, to ‗state a claim to relief that is

plausible on its face.‘‖ Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). ―In other words, a

complaint must do more than allege the plaintiff‘s entitlement to relief. A complaint has

to ‗show‘ such an entitlement with its facts.‖ Fowler v. UPMC Shadyside, 578 F.3d 203,



2
 Steedley also filed a timely motion for reconsideration, which was denied. As he did
not file a new or amended notice of appeal, as is required by Fed. R. App. P.
4(a)(4)(B)(ii), we will not address the denial of reconsideration. See United States v.
McGlory, 202 F.3d 664, 668 (3d Cir. 2000).

                                               3
211 (3d Cir. 2009). Blanket assertions and conclusory statements are not well-pleaded

factual allegations, and by themselves do not suffice to show a claim to relief that rises

above the speculative level. See Renfro v. Unisys Corp., ___ F.3d ___, 2011 WL

3630121, at *3 (3d. Cir. Aug. 19, 2011, No. 10–2447) (quotations and citations omitted).

         Steedley primarily claimed that the defendants violated his Eighth Amendment

rights by failing to treat the two lumps he has on his body. Such an allegation requires a

showing of the defendants‘ deliberate indifference to a serious medical need; under this

standard, allegations of mere negligence or malpractice are insufficient. See Farmer v.

Brennan, 511 U.S. 825, 835 (1994); Singletary v. Pa. Dep‘t of Corr., 266 F.3d 186, 192

n.2 (3d Cir. 2001) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Steedley

attempted to allege deliberate indifference in two ways. First, he claimed that the various

necessary medical procedures that were authorized by his physicians, but that never came

to pass, were denied by the defendants for the non-medical reason of controlling budget

expenditures. See, e.g., Memo. Of Law in Supp. Of Pl.‘s Mot. For Prelim. Inj. 1.

Second, he alleged that the medical path taken amounted to an ―easier and less

efficacious form of treatment,‖ prohibited by our decision in West v. Keve, 571 F.2d 158,

162 (3d Cir. 1978).

         With regard to the first ground, we agree with the Appellees3 that Steedley has

failed to bridge the gap between the possible and the plausible. Throughout his

submissions, he repeatedly claims that care was denied for the non-medical reason of


3
    Despite not participating below, the defendants-Appellees submitted a brief on appeal.

                                              4
expense, a possible demonstration of deliberate indifference. See Rouse, 182 F.3d at 197.

But this claim is not supported by pleaded facts. Steedley alludes to a CMS ―custom . . .

strictly grounded in saving money‖ by which it ―den[ies] . . . patients access to experts‖;

makes reference to ―cost-saving tactics,‖ designed to ―turn a profit‖; and includes

affidavits from other inmates that are intended to show the effects of these tactics.

Outside of a few isolated statements that are lacking in context, and one direct statement

that does not appear to match its citation,4 all of the complaint‘s references to cost-saving

practices are conclusory and, as such, cannot suffice to state a claim. With regard to the

second ground, Steedley has not alleged that the treatment he received was ―less

efficacious‖ on the level that we found unacceptable in Keve, a case in which aspirin as

the sole source of post-operative pain management sufficed to state a claim of deliberate

indifference. See Keve, 571 F.2d at 162. In sum, we agree with the District Court and

the Appellees: Steedley‘s complaint contains, at best, a disagreement over care received

and allegations of professional malpractice, neither of which suffices to state a claim

under the Eighth Amendment. Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d

326, 346 (3d Cir. 1987).

       We disagree, however, that granting leave to amend would necessarily be futile.

Both the District Court and the Appellees suggest that Steedley has received continuous,

adequate treatment, but Steedley refers to concern and, at times, alarm from his treating


4
 In his preliminary injunction memorandum, Steedley refers to a Doctor Najera, who had
observed that a certain procedure was denied ―probably due to it‘s [sic] cost.‖ Steedley
cites ―App. 17‖ in support, but that document—a ―Surgical Consultation‖ report—
contains no such statement.
                                              5
physicians over preventative procedures that were prescribed but never delivered. These

statements could suggest that something was amiss; furthermore, were he to plead better

factual support for his budgetary claims, Steedley might be able to nudge his allegations

across the line of plausibility.5 Accordingly, we conclude that the District Court should

have granted Steedley leave to amend his complaint after advising him that, in its present

state, it was subject to dismissal. See Grayson v. Mayview State Hosp., 293 F.3d 103,

114 (3d Cir. 2002). We will therefore vacate the judgment and remand for further

proceedings.6




5
  Moreover, Steedley implies that the denial of medical treatment might stem from
retaliation, due to previous lawsuits he filed against CMS. He did not develop that
accusation; as we remand so that he may amend his complaint, we need not discuss it
further at this time.
6
  Steedley must decide whether he wishes to proceed using the amended complaint he has
already submitted or whether he wishes to (promptly) prepare a new amended complaint.
                                             6
