                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-3774
                                      ____________

                                    MARISSA MARK,
                                              Appellant

                                             v.

                                  BRIAN J. PATTON;
                                 DR. ODEIDA DALMASI
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-14-cv-01623)
                       District Judge: Honorable Juan R. Sanchez
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 26, 2017

               Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

                                  (Filed: June 13, 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.
HARDIMAN, Circuit Judge.

       Marissa Mark appeals the District Court’s order dismissing her complaint alleging

that employees of the Federal Detention Center (FDC) in Philadelphia, Pennsylvania

failed to provide her with adequate medical care in violation of the Eighth Amendment.

We agree with the District Court that Mark did not plausibly allege that the FDC

employees acted with deliberate indifference. Accordingly, we will affirm.

                                             I

       While incarcerated at the FDC, Mark awoke one morning in November 2011

unable to see out of her left eye. She complained to prison officials and was taken that

same day to a local hospital for examination by a general practitioner. That appointment

was followed by a visit to a general practitioner at the FDC and a visit to an

ophthalmologist four days after Mark first complained of her injury. The ophthalmologist

instructed Mark to return for a follow-up appointment in three weeks and to see a

neurologist as soon as possible. Mark was taken to a follow-up appointment with a

different ophthalmologist six weeks later, and she saw a neurologist at some point after

she was transferred to a different detention center in January 2012. The neurologist

determined that Mark’s vision problems, which persist today, were caused by a virus.

       Convinced her medical care was inadequate, Mark sued Brian Patton, Warden and

Chief Administrative Officer of the FDC, and Dr. Oldeida Dalmasi, the FDC’s clinical

director responsible for prisoner health care, pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Mark’s second amended
                                             2
complaint alleged that Patton and Dalmasi were directly liable for her injuries by

delaying her follow up care with the ophthalmologist and failing to schedule an

appointment with a neurologist. Mark also alleged Patton and Dalmasi were liable as

supervisors for failing to establish adequate policies and training at the FDC, which

enabled a virus to propagate amongst inmates.

       The District Court dismissed Mark’s complaint because she “failed to allege

Defendants acted with the [deliberate indifference]” required for an Eighth Amendment

Bivens claim. App. 5. Mark appealed, arguing that the District Court misapplied the

deliberate indifference standard.

                                             II1

       An Eighth Amendment claim for inadequate medical care “must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). And “[t]o act with deliberate

indifference to serious medical needs is to recklessly disregard a substantial risk of

serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009) (citing Estelle, 429

U.S. at 104–05). Claims of mere negligence “without some more culpable state of mind,

       1
         The District Court had jurisdiction under 28 U.S.C. § 1343(a). We have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s
order granting a motion to dismiss. Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237,
242 (3d Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).


                                              3
do not constitute ‘deliberate indifference.’” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999). Direct liability claims may succeed whenever a prison official: (1) intentionally

refused treatment for a known issue; (2) delayed necessary treatment for non-medical

reasons; (3) prevented recommended treatment; or (4) persisted with treatment “in the

face of resultant pain.” Id. (citation omitted).

       Mark’s allegations regarding the failure of Patton and Dalmasi to schedule a

neurological appointment fall short of the aforementioned standards. Mark did not allege

that her ophthalmologist alerted Patton or Dalmasi that she needed to see a neurologist.

Instead, she claimed only that she told them of her need to see a neurologist. Under the

facts of this case, the failure to honor immediately Mark’s request to see a specialist does

not rise to the level of reckless disregard of a substantial risk of serious harm.

       This leaves Mark’s claim that she was denied adequate medical care because of a

three-week delay in receiving a follow-up visit to an ophthalmologist. According to

Mark’s complaint, her first ophthalmologist notified Dalmasi of Mark’s need for a

follow-up appointment. Mark did not allege when Dalmasi was so notified, however.

Because the complaint failed to allege Dalmasi knew of Mark’s need for treatment and

delayed it, it did not plausibly allege that Dalmasi acted with deliberate indifference.

Even assuming for the sake of argument that Dalmasi knew that Mark needed an

appointment, Mark still failed to allege deliberate indifference because she alleged no

non-medical reasons for the delay. See id. In other words, her complaint is nothing more

“than an unadorned, the-defendant-unlawfully-harmed-me accusation,” which cannot
                                               4
survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Mark’s claim

that she “requires discovery to determine whether [Defendants] acted with a sufficiently

culpable state of mind,” Mark Br. 23, is inadequate under controlling law. “[A] plaintiff

armed with nothing more than conclusions” cannot “unlock the doors of discovery.”

Iqbal, 556 U.S. at 678–79.

       Nor does Mark’s supervisory liability theory fare any better. Mark alleged that

Defendants failed to adopt policies and procedures which resulted in the propagation of a

virus in the prison. But a complaint alleging supervisory liability first “must identify a

supervisory policy or practice that the supervisor failed to employ.” Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014), rev’d on other grounds sub nom. Taylor v.

Barkes, 135 S. Ct. 2042 (2015) (per curiam). We are unpersuaded that Mark’s sweeping

accusations about policies, without identifying one in particular, are sufficient to state a

claim. Mark complains that she “was in no position to know of the specific policies or

procedures that allowed a neurologically harmful virus to propagate in the prison.” Mark

Br. 29. In fact, the specific medical policies and procedures followed at the FDC are

publicly available on the Federal Bureau of Prisons website.

       Even if Mark was not required to identify a specific policy in her complaint, she

still failed to state a claim for supervisory liability. To do so, a plaintiff must allege that:

“(1) the policy or procedures in effect at the time of the alleged injury created an

unreasonable risk of a constitutional violation; (2) the defendant-official was aware that

the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and
                                                5
(4) the constitutional injury was caused by the failure to implement the supervisory

practice or procedure.” Barkes, 767 F.3d at 317. Mark did not allege that any policy

created an unreasonable risk of a constitutional violation or that either Patton or Dalmasi

was aware of such a risk. It follows that Mark’s “[t]hreadbare recital[] of the elements of

a cause of action, supported by mere conclusory statements,” is insufficient to survive the

motion to dismiss. Iqbal, 556 U.S. at 678.

                                      *      *       *

       For the reasons stated, we will affirm the order of the District Court.




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