DLD-276                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-2195
                                       ___________

                                    JAMES BRYANT,
                                              Appellant

                                             v.

                        KAREN KASKIE; VINCENT MOONEY
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 4-15-cv-00820)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

       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
                                    July 26, 2018
           Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

                              (Opinion filed: July 31, 2018)
                                      _________

                                        OPINION*
                                        _________

PER CURIAM

       James Bryant appeals pro se from the District Court’s dismissal of his complaint

for failure to allege Eighth and Fourteenth Amendment claims. We will summarily


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
affirm because no substantial question is presented by this appeal. See 3d Cir. L.A.R.

27.4; 3d Cir. I.O.P. 10.6.

       James Bryant, an inmate currently confined at the Mahanoy State Correctional

Institution at Frackville, Pennsylvania (“SCI-Mahanoy”), filed this pro se civil rights

action pursuant to 42 U.S.C. § 1983 in April 2015, and an amended complaint in June

2015. Bryant alleged that, while he was confined at the State Correctional Institution at

Coal Township (“SCI-Coal Township”), Defendant Kaskie, a nurse practitioner, and

Defendant Mooney, the Superintendent of SCI-Coal Township, violated his Eighth and

Fourteenth Amendment rights. Specifically, Bryant alleged that he was prescribed the

medication Risperidone (Risperdal) and subsequently developed gynecomastia (the

development of female breasts), a known side effect of the medication. Bryant claimed

that defendants failed to warn him of the potential side effects, and repeatedly ignored his

requests for treatment. Both defendants filed motions to dismiss for failure to state a

claim, and the District Court, by orders entered February 16, 2016 and May 2, 2018,

granted the defendants’ motions and dismissed Bryant’s complaint. Bryant appeals.1

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

over the District Court’s decision to grant a motion to dismiss. Fleisher v. Standard Ins.

Co., 679 F.3d 116, 120 (3d Cir. 2012). Dismissal is appropriate if the plaintiff is unable

to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.



1
  After the District Court’s February 16, 2016 order granting Defendant Kaskie’s motion
to dismiss, Bryant filed a notice of appeal. This Court subsequently dismissed the appeal
for lack of appellate jurisdiction. C.A. No. 16-1643.
                                               2
Corp. v. Twombly, 550 U.S. 544, 570 (2007). When considering a motion to dismiss, we

must accept all allegations in the complaint as true and draw all reasonable inferences in

the light most favorable to the nonmovant. Foglia v. Renal Ventures Mgmt., LLC, 754

F.3d 153, 154 n.1 (3d Cir. 2014). We construe pro se complaints liberally, Erickson v.

Pardus, 551 U.S. 89, 94 (2007), and may affirm on any basis supported by the record,

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

       To state an Eighth Amendment claim, a plaintiff must allege acts or omissions by

prison officials that indicate deliberate indifference to a serious medical need. Estelle v.

Gamble, 429 U.S. 97, 104–05 (1976); Natale v. Camden Cty. Corr. Facility, 318 F.3d

575, 582 (3d Cir. 2003). A plaintiff may show deliberate indifference by establishing

that the defendants “intentionally den[ied] or delay[ed] access to medical care.” Estelle,

429 U.S. at 104–05. However, “[w]here 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.” United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2

(3d Cir. 1979) (internal quotations and citation omitted).

       The District Court correctly dismissed Bryant’s claims against Defendant Mooney

since his allegations do not plead the personal involvement required to establish liability

in a § 1983 claim. Liability in a civil rights action cannot be based on respondeat

superior alone, and defendants in such actions must be alleged to have had personal




                                              3
involvement in the wrongs complained of. See Rode v. Dellarciprete, 845 F.2d 1195,

1207–08 (3d Cir. 1988).2

       The District Court was also correct to dismiss Bryant’s claims against Defendant

Kaskie.3 Bryant alleged that Kaskie violated his Eighth Amendment rights by (1) failing

to inform him of the potential side effects of Risperidone use, and (2) failing to respond

to his continued requests for care. Regarding Bryant’s first claim against Kaskie, the

District Court accepted that Bryant’s development of gynecomastia constituted a serious

medical need, but concluded that Bryant failed to show deliberate indifference, as

required by Estelle. We agree with the District Court that Kaskie’s alleged failure to

inform Bryant of the potential side effects of Risperidone is insufficient to demonstrate

deliberate indifference. Even if this allegation could rise to the level of negligence,

simple negligence cannot support an Eighth Amendment claim. See Estelle, 429 U.S. at

106. Furthermore, Bryant alleged that he was initially prescribed Risperidone at the State

Correctional Institution at Camp Hill, Pennsylvania (“SCI-Camp Hill”), where he was

confined prior to his transfer to SCI-Coal Township. Since Bryant alleged that Kaskie


2
  To the extent Bryant claims that Mooney mishandled his administrative grievance or
complaint, we agree with the District Court that he has failed to state a plausible claim for
relief.
3
  The District Court found that Bryant’s amended complaint failed to allege any personal
involvement by Defendant Kaskie, since he failed to allege that she prescribed,
administered, or monitored Bryant’s medication use, or was asked to provide him
assistance after he began experiencing the adverse side effects. However, the District
Court noted that in Bryant’s opposition to Defendant Kaskie’s motion to dismiss, he
asserted that Defendant Kaskie “was the only medical person that saw him on a regular
basis” and was therefore personally responsible for his medical care. Dkt # 16, at 5–6.
Even if Bryant alleged sufficient facts to show personal involvement by Defendant
Kaskie, his allegations of her conduct, as noted above, fails to state a claim for relief.
                                              4
was employed as a nurse practitioner at SCI-Coal Township, it is clear that his

medication was not prescribed by Kaskie, but instead prescribed at his prior place of

confinement.

       Though not specifically discussed by the District Court, Bryant has similarly failed

to state a claim regarding the denial of medical care. In his notice of appeal, Bryant

states that he was seen by medical personnel, including Kaskie, after he began

experiencing gynecomastia. Additionally, Bryant states that Kaskie ultimately

discontinued his use of Risperidone after receiving both in person and written complaints

by Bryant regarding the side effects of its use. Dkt # 55, at 6. Thus, Bryant’s allegations

undercut his own claim that he was denied medical care, as he was seen numerous times

to address his complaints, and subsequently taken off Risperidone, seemingly, at his own

request.4

       Accordingly, we will affirm the judgment of the District Court.




4
  Bryant has failed to allege any facts that could constitute a Fourteenth Amendment
violation. Additionally, in Bryant’s Response filed with this Court, he adds claims of
retaliation and conspiracy, not previously raised in the District Court. However, because
claims cannot be raised for the first time on appeal, we cannot consider them. See United
States v. Anthony Dell’Aquilla, Enters. and Subsidiaries, 150 F.3d 329, 335 (3d Cir.
1998) (“[A]bsent exceptional circumstances, an issue not raised in district court will not
be heard on appeal.”).
                                             5
