BLD-084                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 15-2739
                                      ___________

                                    LORENZO SIMS,
                                              Appellant

                                             v.

      WEXFORD HEALTH SOURCES; CORIZON INC; DR. NANCY FLYNN
    MCGARVIE, Medical Director; JAMIE FERDARKO, RN Supervisor; KIM SMITH,
    CHCA; SUPERINTENDENT FOREST SCI; SCI FOREST; DR. SYMONS; GARY
                          PRINKLEY, RN Supervisor
                  ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 1-14-cv-00108)
                   Magistrate Judge Honorable Susan Paradise Baxter
                     ____________________________________

         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
                                  December 17, 2015
              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                           (Opinion filed: December 21, 2015)
                                        _________

                                        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.
       Pro se appellant Lorenzo Sims (“Sims”) appeals from the judgment of the United

States District Court for the Western District of Pennsylvania in his civil rights case. As

the appeal does not present a substantial question, we will summarily affirm the decision

of the District Court.

                                             I.

       Sims is a state prisoner housed at SCI-Forest, administered by the Pennsylvania

Department of Corrections (“D.O.C.”). Sims alleged that he is a paraplegic due to

gunshot wounds, and that the spinal cord specialist who initially treated him diagnosed

him “with severe spinal pain.” Accordingly, Sims represented that the specialist

prescribed Sims Oxycodone, and that three prisons Sims had been housed at continued to

provide him with Oxycodone. Sims filed an amended complaint against SCI-Forest,

contracted health care provider Wexford Health Sources, and former contractor Corizon,

Inc. Sims also named Medical Director Dr. McGarvie; registered nurse supervisors

Jamie Ferdarko and Gray Prinkley; Warden Michael Overmyer; Clinical Health Care

Administrator Kim Smith; and Doctor Symons as defendants. (We refer to defendants

SCI-Forest, Ferdarko, Prinkley, Smith, and Overmyer as the “D.O.C. Defendants.”) Sims

brought his claims under 42 U.S.C. § 1983. He stated he was denied Oxycodone, and

alleged that the defendants: intentionally interfered with his serious medical needs; acted

with deliberate indifference by terminating his previous course of treatment; and had an

open practice, policy, or custom of being deliberately indifferent in order to save money.




                                             2
The Court granted Wexford’s and the D.O.C. defendants’ motions to dismiss. 1 The Court

also dismissed defendants Corizon, McGarvie, and Symons pursuant to Federal Rule of

Civil Procedure 4(m), because they were not served within 120 days of the date that the

complaint was filed. 2

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district

court’s decision to grant a motion to dismiss under Rule 12(b)(6). Keystone

Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011). When

reviewing a motion to dismiss, “we accept the factual allegations contained in the

Complaint as true, but disregard rote recitals of the elements of a cause of action, legal

conclusions, and mere conclusory statements.” James v. City of Wilkes-Barre, 700 F.3d

675, 679 (3d Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). A plaintiff must supply “enough facts

to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. We

construe pro se complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

       The District Court correctly dismissed all claims against SCI-Forest on the basis of

Eleventh Amendment immunity. Under the Eleventh Amendment, states and their


1
  The parties consented to have the case heard by a magistrate judge, pursuant to 28
U.S.C. § 636(c)(1).
2
  After filing this appeal, Sims filed a motion to reconsider and an amended complaint,
and the District Court denied his motion as moot on August 7, 2015. It also dismissed
the amended complaint as moot. However, Sims did not appeal from this order. See Fed.
R. App. P. 4(a)(4)(B)(ii).
                                              3
agencies are immune from suits in federal court, unless Congress has overridden that

immunity or the State has waived its immunity. See Laskaris v. Thornburgh, 661 F.2d

23, 25-26 (3d Cir. 1981) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 280 (1977)). When enacting 42 U.S.C. § 1983, Congress did not override

Pennsylvania’s immunity from suit. See Quern v. Jordan, 440 U.S. 332, 340-45 (1979).

Pennsylvania has expressly withheld its consent to be sued. 42 Pa. Cons. Stat. Ann. §

8521(b). The Pennsylvania D.O.C. is a state agency. 71 Pa. Cons. Stat. Ann. § 310-1.

SCI-Forest is a part of the D.O.C. 3 Accordingly, SCI-Forest is immune from suit, and the

District Court was correct in dismissing all claims against the prison.

       The District Court correctly dismissed Sims’s medical treatment deliberate

indifference claims brought against defendants Smith and Ferdarko for failure to state a

claim. First, deliberate indifference claims under the Eighth Amendment require

allegations of a serious medical need for the prisoner, and “acts or omissions” by prison

officials indicating deliberate indifference to that prisoner’s need. Estelle v. Gamble, 429

U.S. 97, 106 (1976). Deliberate indifference itself requires the “unnecessary and wanton

infliction of pain.” Id. at 104. A plaintiff’s disagreement with a medical professional’s

judgment “does not state a violation of the Eighth Amendment.” White v. Napoleon, 897

F.2d 103, 110 (3d Cir. 1990). Second, prison officials who are not doctors are not liable

for responding directly to prisoner medical complaints where the prisoner is under the

care of medical experts. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Where a

3
 SCI-Forest, Pennsylvania Department of Corrections,
http://www.cor.pa.gov/Facilities/StatePrisons/Pages/Forest.aspx#.VmctTdIrLcs (last
visited Dec. 8, 2015).
                                             4
prison official does not have reason to believe or lacks actual knowledge that a prisoner is

being mistreated or not treated at all by medical experts, she does not have the “scienter”

required for deliberate indifference. Id.

       Sims’s only allegation against defendant Ferdarko was that she commented on his

previous drug offenses to defendant McGarvie. This alone does not state a violation of

the Eighth Amendment. See Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834

F.2d 326, 346 (3d Cir. 1987). Sims’s claims against defendant Smith are based on the

allegation that defendant McGarvie did not prescribe Sims Oxycodone. As a non-

medical professional without reason to believe that Sims was being mistreated, defendant

Smith was not liable for Sims’s complaints. See Spruill, 372 F.3d at 236. Accordingly,

the District Court correctly dismissed the claims as to these defendants.

       The District Court correctly dismissed all claims against defendants Overmyer and

Prinkley on the ground that they were not personally involved in depriving Sims of

medication. 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 involvement

in the wrongs complained of. See Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.

1988). If an official’s only involvement is the investigation or adjudication of an inmate

grievance after the event giving rise to the grievance has happened, that is not considered

to be personal involvement. Id. at 1208. Defendant Overmyer is the warden of SCI-

Forest, and defendant Prinkley is a supervisor. Sims’s only allegations against

defendants Overmyer and Prinkley are based on Overmyer’s response to a letter from

Sims and Prinkley’s denial of one of his grievances. The District Court correctly held

                                             5
that these allegations were insufficient to constitute personal involvement. Id. at 1207-

08.

       The District Court correctly dismissed Sims’s claim that defendant Wexford had a

policy, custom, or practice of denying inmates prescribed medical treatment in order to

receive higher profits. While Wexford is a private entity, it is under contract with the

state to provide medical services. We have previously held that a private health company

providing service to inmates “cannot be held responsible for the acts of its employees

under a theory of respondeat superior or vicarious liability.” Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 583 (3d Cir. 2003). In order to hold Wexford liable, Sims must

have alleged facts to state a claim that Wexford had a policy, custom, or practice, and that

the policy, custom, or practice caused the constitutional violation at issue. Id. at 583-84.

       Sims’s only statements regarding Wexford’s alleged policy, custom, and practice

were “conclusory.” See Iqbal, 556 U.S. at 678. Even construing his complaint liberally,

accepting Sims’s factual statements as true would have resulted in circular reasoning.

His complaint stated that Wexford had an open practice, policy, or custom of deliberate

indifference in order to save money. His statement of facts merely repeated this. As

such, the District Court correctly dismissed Sims’s claims against Wexford.

       Finally, the District Court dismissed defendants Corizon, McGarvie, and Symons

pursuant to Federal Rule of Civil Procedure 4(m). Sims provided mailing information to

the United States Marshals, who effectuated service for him. Sims apparently provided

the wrong mailing information for Corizon, McGarvie, and Symons to the Marshals, who

could not serve the three defendants. The Court gave Sims two chances to provide

                                              6
correct mailing information, and it does not appear from the record below that he ever did

so. Sims attempts to provide evidence in support of his appeal, but we are bound by the

record before us. See Landy v. FDIC, 486 F.2d 139, 150 (3d Cir. 1973); see also Fed. R.

App. P. 10(a).

      For the reasons stated above, we will summarily affirm the District Court’s

decision.




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