CLD-112                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                 Nos. 16-1897 & 16-2239
                                      ___________

                                     LEE STEWART,
                                              Appellant

                                             v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS; CORIZON HEALTH CARE,
INC.; STEVEN GLUNT, Superintendent; DEBRA YOUNKIN, Corrections Health Care
Administrator; MUHAMMAD NAJI, Doctor; MANDY CORMAN, Physician Assistant;
MARIA LEAHY, Physician Assistant; MARVIN BRANTO, Physician Assistant; JOHN
  DOE, Physician Assistant; RICH HALLSWORTH, CEO Corizon Health Care, Inc.;
                                 RICH CLARK
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-13-cv-00246)
                        District Judge: Honorable Kim R. Gibson
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 26, 2017
           Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges

                            (Opinion filed: January 31, 2017)
                                       _________

                                        OPINION *
                                        ________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Lee Stewart appeals pro se from the judgment of the United States District Court

for the Western District of Pennsylvania in his 42 U.S.C. § 1983 action. As the appeal

does not present a substantial question, we will summarily affirm.

                                             I.

       Stewart initiated this § 1983 action in 2013 against several prison officials and

medical personnel from the State Correctional Institution at Houtzdale, 1 in addition to

Corizon Health Care, then a contractual medical service provider to the Pennsylvania

Department of Corrections, alleging that these Defendants denied him adequate medical

care in connection with a left ankle injury he suffered while playing basketball.

       Stewart claimed that he suffered the injury on July 10, 2012, and was seen the next

day in the facility medical department by Nurse Branto, who diagnosed him with a

sprain, and provided an ice pack, a wrap, and crutches. The following day, Stewart

returned to the medical department and was seen by Physician Assistants Corman and

Leahy, who, after an X-ray analysis, confirmed the diagnosis of a sprain. The next day,

Stewart submitted a request to be seen by the medical department because “his foot

looked worse,” but was not seen until five days later by an unnamed Physician Assistant,


1
 Stewart named the following medical personnel, referred to below as the “Medical
Defendants” – Marvin Branto and Rich Clark, registered nurses at SCI Houtzdale; Maria
Leahy and Mandy Corman, Physician Assistants at SCI Houtzdale; and Dr. Muhammad
Naji, the Medical Director at SCI-Houtzdale. Stewart also named SCI-Houtzdale
Superintendent Steven Glunt, Corrections Healthcare Administrator Debra Younkin, and
Corizon Health Care Chief Executive Officer Rich Hallsworth.
                                             2
who allegedly took away Stewart’s crutches, advising him that there was nothing wrong

with his foot. Stewart returned to the medical department the next day, July 19, 2012,

and following another X-ray, Leahy diagnosed him with an acute fracture, placed him in

a cast, re-issued crutches, and provided Tylenol for pain. She referred Stewart to Dr. Naji

for care of his fracture, and Naji completed a consultation on August 1, 2012,

recommending that the cast be removed in three weeks. Leahy saw Stewart on August

28, 2012, and removed his cast, but because of insufficient callus formation, she ordered

him to come back a week later to reapply the cast. Leahy reapplied the cast on

September 6, 2012, and Dr. Naji removed it 11 days later after observing sufficient callus

formation.

       On September 28, 2012, Stewart went to sick call complaining of a foot fungus

and ankle pain when running. Corman prescribed Tinactin and ordered Stewart to wear

an ankle sleeve during physical activity. Between December 2012 and February 2013,

Stewart continued to complain of foot fungus and pain, and was provided Tinactin and X-

rays, which revealed no additional damage. Dr. Naji treated Stewart on February 23,

2013, and observed that the fracture had healed completely, with no significant pain or

swelling. He ordered physical therapy and a lace-up ankle support for two months.

Stewart attended at least two physical therapy consultations – in June and August of 2013

– and those consultations revealed a full range of motion and normal strength in his

ankle. After his August 2013 physical therapy consultation, medical records indicate that



                                             3
he was seen only for complaints related to his fungal infection, for which he was

provided various antifungal medications.

       Early in the litigation, acting pursuant to Federal Rule of Civil Procedure 12(b)(6),

the District Court dismissed Defendants Glunt, Younkin, Corizon Health Care, and Rich

Hallsworth – because they lacked sufficient personal involvement in Stewart’s care – but

permitted Stewart to proceed against the Medical Defendants. The District Court

ultimately awarded summary judgment in favor of the Medical Defendants, concluding

that they provided Stewart adequate, and reasonably prompt, medical treatment, and thus

Stewart could not establish that they acted with deliberate indifference. This timely

appeal ensued. 2

                                              II.

        We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

dismissal under Rule 12(b)(6) using the same test the District Court applied and ask

whether the complaint has “sufficient factual matter[,] accepted as true[,] to state a claim

to relief that is plausible on [its] face.” Fantone v. Latini, 780 F.3d 184, 193 (3d Cir.

2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We also exercise plenary


2
  On March 15, 2016, the District Court entered an order adopting the Magistrate Judge’s
February 9, 2016, Report and Recommendation, and awarding summary judgment in
favor of the Medical Defendants. After the District Court entered judgment, Stewart filed
objections to the Report and Recommendation, which the District Court overruled by
order entered March 29, 2016. Stewart timely filed two notices of appeal – one from the
March 15, 2016, order (at C.A. No. 16-1897), and the other from March 29, 2016, order
(at C.A. No. 16-2239). The Clerk consolidated the appeals for all purposes on January
11, 2017.
                                              4
review over the District Court’s award of summary judgment and apply the same test the

District Court utilized – whether the record “shows that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.”

Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). We may summarily affirm any

decision of the District Court when “it clearly appears that no substantial question is

presented.” 3d Cir. I.O.P. 10.6 (2015).

       As to Defendants Younkin and Glunt, Stewart claimed that Younkin denied his

request for an MRI at an unspecified time and that Glunt was “notified of [his] ongoing

pain and suffering,” but failed to take appropriate action. Stewart does not allege that

either Defendant was otherwise personally involved in any of his care decisions. Put

another way, Stewart claimed that these Defendants, supervisory officials who do not

participate in individual medical care decisions, simply failed to intervene in his medical

care. Such a claim is not viable under the Eighth Amendment. See Spruill v. Gillis, 372

F.3d 218, 236 (3d Cir. 2004) (“[A]bsent a reason to believe (or actual knowledge) that

prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-

medical prison official . . . will not be chargeable with the Eighth Amendment scienter

requirement of deliberate indifference.”). Thus the District Court properly dismissed

these Defendants. 3


3
  Even if these Defendants were sufficiently personally involved in Stewart’s care, his
claims against them would still fail because it is clear from the complaint that he received
substantial medical care, and “[m]ere disagreement as to the proper course of medical
treatment” is insufficient to state an Eighth Amendment claim. Spruill, 372 F.3d at 235;
                                               5
       As to the substance of Stewart’s care, in awarding summary judgment in favor of

the Medical Defendants, the District Court accurately observed that Stewart “received no

less than seventeen evaluations by medical personnel at SCI Houtzdale, two orthopedic

consultations, three physical therapy consultations, numerous prescriptions for pain and

anti-fungal medications, and five x rays,” and that “[t]here is no evidence that any

Defendant failed to give him care when it was requested.” To the extent that Stewart

complained about the adequacy of these interventions, his claims fail as a “[m]ere

disagreement as to the proper medical treatment.” Spruill, 372 F.3d at 235.

       He also complained, however, about the timeliness of the interventions – that

Defendants initially misdiagnosed his fracture, resulting in its delayed treatment. But

such a diagnostic failure, at worst, amounts to to medical malpractice, which is not

actionable under the Eighth Amendment. See Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d

Cir. 1993) (“[M]edical malpractice does not become a constitutional violation merely

because the victim is a prisoner.”). In addition, he pointed to a five-day period following

his misdiagnosis during which he received no treatment – despite his request for it – and

claimed to have been in significant pain. But deliberate indifference requires that a


see also Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978) (“Where the plaintiff has
received some care, inadequacy or impropriety of the care that was given will not support
an Eighth Amendment claim.”). The District Court properly dismissed Corizon Health
Care and its CEO, Rich Hallsworth, for essentially the same reason – supervisory liability
under § 1983 may exist only when there is an underlying constitutional violation. See
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (recognizing “two
general ways in which a supervisor-defendant may be liable for unconstitutional acts
undertaken by subordinates”), rev’d on other grounds, Taylor v. Barkes, 135 S. Ct. 2042
(2015).
                                             6
defendant “knows of and disregards an excessive risk to inmate health or safety,” and to

avert summary judgment, Stewart “must point to some evidence beyond [his] raw claim

that [Defendants were] deliberately indifferent.” Singletary v. Pa. Dep’t of Corr., 266

F.3d 186, 193 n.2 (3d Cir. 2001). This, he has not done.

         Although we do not doubt that a fractured ankle constitutes a serious medical

need, see Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d

Cir. 1987) (medical need is serious if non-treatment results in “unnecessary and wanton

infliction of pain”), Stewart has not even alleged – let alone pointed to evidence – that

Defendants were actually aware of this condition during the five-day period in question.

The record indicates, instead, that Defendants were under the mistaken impression –

based on an improper reading of the X-rays – that he was suffering from only a sprain,

and treated him accordingly. Stewart claimed, in effect, that they should have known of

his more serious condition, but this is not enough to establish deliberate indifference. See

Farmer v. Brennan, 511 U.S. 825, 838 (1994) (“[O]fficial’s failure to alleviate a

significant risk that he should have perceived but did not” is not actionable under the

Eighth Amendment). Accordingly, we will summarily affirm the decision of the District

Court.




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