BLD-218                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1615



                                    NATA S. BOB,

                                                      Appellant

                                           v.

  DOCTOR KUO; CORRECTIONS CORPORATION OF AMERICA; C. COLLINS,
                 Warden - Elizabeth ICE Detention Cr..
               ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. Civil No. 08-2279)
                     District Judge: Honorable Faith S. Hochberg
                     ____________________________________

                   Submitted for Possible Summary Action Pursuant
                      to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 10, 2010

          Before: RENDELL, CHAGARES and VANASKIE , Circuit Judges

                              (Opinion filed July 20, 2010)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      For several weeks in July 2006, Appellant Nata S. Bob was a detainee in the

Elizabeth Contract Detention Facility in Elizabeth, New Jersey, an immigration detention
center which is operated by Corrections Corporation of America (“CCA”) pursuant to a

contract with the United States Department of Homeland Security, Immigration and

Customs Enforcement Branch (“ICE”). Bob filed a Bivens1 action against CCA,

Charlotte Collins (the warden), and Dr. Kuo (an attending physician),2 alleging that Dr.

Kuo deliberately disregarded his medical needs. While in detention, Bob was examined

by Dr. Kuo after complaining about pain, swelling, stiffness, and poor range of motion in

his hand due to an old, work-related injury. He asked Dr. Kuo to prescribe Celebrex, a

medication he took before he was detained that relieves pain and inflammation.3 Bob

alleged that Dr. Kuo refused to prescribe Celebrex due to the risk of serious side affects,

explaining that a similar drug, Vioxx, had been withdrawn from the market. Instead, she

said that she would prescribe two other anti-inflammatory pain relievers, Motrin and

naproxen. After Bob complained that he could not tolerate those drugs, she allegedly told

him that he should soak his hand in warm water for relief. On the basis of Dr. Kuo’s

refusal to prescribe the medication he desired, Bob sought damages from the defendants

for their deliberate indifference to his medical needs.

   1
    Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
   2
     According to Warden Collins’ affidavit in support of the defendants’ motion to
dismiss, Dr. Kuo was not an employee of CCA and was not under CCA’s (or Warden
Collins’) supervisory authority. Rather, Dr. Kuo was either an employee of ICE or the
United States Public Health Services, which were in charge of the health care facility at
the detention center.
   3
     Bob attached documentation of his injury to his complaint and documentation of his
prior use of Celebrex to his motion for summary judgment.

                                              2
       Defendants/Appellees CCA and Collins filed a motion to dismiss the complaint for

failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, arguing that Bob had failed to state facts that would

support an Eighth Amendment claim for deprivation of medical care, had failed to assert a

cause of action against Warden Collins, and could not make a Bivens claim against the

corporate defendant, CCA, as a matter of law. Bob then filed a motion for summary

judgment. After reviewing both motions, the District Court dismissed the complaint. The

court concluded that Bob’s “allegations demonstrate that Dr. Kuo did not violate his

rights under the Eighth Amendment,” that Bob “made no allegations whatsoever

concerning Warden Collins,” and that Bivens does not provide a cause of action against a

private corporation such as CCA. (See Feb 5, 2010 Order at 2-3). Bob filed this timely

appeal.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. In order to survive

dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). The plausibility standard “asks for more than a sheer possibility that a

defendant has acted unlawfully.” See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

       After reviewing the District Court pleadings, the notice of appeal, and the parties’

                                              3
responses, we conclude that Bob’s complaint was correctly dismissed for failure to state a

claim. There is nothing in the complaint’s specific allegations from which we can

plausibly infer that the defendants were deliberately indifferent to Bob’s serious medical

needs. Eighth Amendment liability requires “more than ordinary lack of due care for the

prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Regarding

medical mistreatment claims in particular, “[i]t is well-settled that claims of negligence or

medical malpractice, without some more culpable state of mind, do not constitute

‘deliberate indifference.’” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); see also

White v. Napoleon, 897 F.2d 103, 108 (3d Cir.1990) (stating that mere medical

malpractice cannot give rise to a violation of the Eighth Amendment). Only “unnecessary

and wanton infliction of pain” or “deliberate indifference to the serious medical needs” of

prisoners are egregious enough to rise to the level of a constitutional violation. White,

897 F.2d at 108-09 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

       Bob does not allege that he was intentionally denied medical treatment for his

pain. Rather, the allegations contained in the complaint, taken as true, simply assert

inadequate treatment because Dr. Kuo would not prescribe the specific medication Bob

desired. But Bob’s own allegations also reveal a medical reason for Dr. Kuo’s refusal to

prescribe the requested medication. Bob’s disagreement with Dr. Kuo’s decision

regarding his treatment is not, by itself, sufficient to establish a violation of the Eighth

Amendment. See Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d

326, 346 (3d Cir. 1987) (“mere disagreement as to the proper medical treatment” does not

                                               4
support a claim of an Eighth Amendment violation).

       Furthermore, Bob’s complaint contains no allegations regarding Warden Collins.

“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must

plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. Thus, Bob failed to state

a claim against Warden Collins. Finally, Bob may not assert a Bivens claim against

CCA because it is a private corporation and the Supreme Court has explicitly refused to

extend Bivens actions to private corporations. See Correctional Servs. Corp. v. Malesko,

534 U.S. 61, 70-74 (2001).

       Accordingly, because we agree with the District Court that Bob’s complaint fails

to state a claim upon which relief can be granted, we will affirm its order dismissing the

complaint under Rule 12(b)(6).




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