                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-4640
                                       ___________

                                 ANTHONY L. TENON,

                                                   Appellant

                                             v.

    WILLIAM DREIBELBIS, Corrections Health Care Administrator; RONALD LONG,
     Medical Doctor; JOSH MAHUUT, Physician Assistant; SEAN TYSON, Physician
       Assistant; DOCTOR AGAWAL, S.C.I. Smithfield Doctor; DOCTOR LONG
                       ____________________________________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 1-12-cv-01278)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 27, 2015

           Before: CHAGARES, JORDAN and GREENBERG, Circuit Judges


                             (Opinion filed: March 31, 2015)

                                       ___________

                                        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

         Pro se appellant Anthony Tenon seeks review of the District Court’s orders

dismissing his civil rights action against several defendants and awarding summary

judgment to the remaining defendants. For the reasons discussed below, we will affirm

in part, vacate in part, and remand for further proceedings.

         Tenon, a Pennsylvania state prisoner, filed suit pursuant to 42 U.S.C. § 1983

against William Dreibelbis, a health care administrator at the State Correctional

Institution at Smithfield (SCI-Smithfield), Dr. Ronald Long and Dr. Agawal, both

physicians, and two physician assistants, Josh Mahute1 and Sean Tyson, all employed at

SCI-Smithfield. On July 16, 2010, Tenon suffered a diabetic seizure in his prison cell,

causing him to fall and fracture his jaw. In his complaint, he alleges that the defendants

were deliberately indifferent to the serious medical needs stemming from his injury,

causing him to suffer severe, unnecessary pain and permanent disfigurement, and thereby

violating his civil rights. Tenon also asserts a state law claim for negligence.

         The Magistrate Judge initially screened the complaint pursuant to 28 U.S.C.

§ 1915A and recommended dismissing all of the claims without prejudice for failure to

state a claim, except those against defendant Drebeilbis. In response, Tenon filed an

amended complaint. The Magistrate Judge issued a Report and Recommendation (R&R),

which the District Court adopted as its opinion, dismissing the § 1983 claims against

Tyson, Mahute and Dr. Agawal with prejudice and declining to exercise supplemental


1
    Josh Mahute’s name is misspelled as “Mahuut” in the caption and throughout Tenon’s

                                              2
jurisdiction over the state law claims. The case then proceeded against defendants

Dreibelbis and Long; after discovery, the District Court granted summary judgment in

their favor. This appeal ensued.2

       We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of a District

Court’s sua sponte dismissal under the PLRA is plenary. Allah v. Seiverling, 229 F.3d

220, 223 (3d Cir. 2000). We exercise plenary review over an order granting summary

judgment. DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is

proper where, viewing the evidence in the light most favorable to the nonmoving party

and drawing all inferences in favor of that party, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;

Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).

                                           I.

       Tenon alleges that, immediately after his injury, he was examined by Defendant

Mahute. Tenon complained that he could not open his jaw and that it was causing him

excruciating pain. After concluding that the jaw was likely broken, Mahute ordered an x-

ray, and prescribed Motrin and a “soft diet.”3 There appears no dispute that Tenon never


pleadings.
2
  Tenon has waived his right to appeal the District Court’s decision to decline
supplemental jurisdiction over the state law claims. See Kost v. Kozakiewicz, 1 F.3d
176, 182 (3d Cir. 1993) (issues not raised in an opening brief are deemed waived); see
also LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (although
“appellate courts generally do not hold pro se litigants rigidly to the formal briefing
standards . . . we need not manufacture claims of error for an appellant proceeding pro se,
especially when he has raised an issue below and elected not to pursue it on appeal.”).
3
  Throughout his complaint, Tenon incorrectly refers to the diet ordered by Mahute as a

                                                3
received the soft diet. On July 22, 2010, six days after the injury, Tenon’s jaw was x-

rayed; he was also examined and informed by defendant Tyson that he had a single

fracture to his jaw. Tenon informed Tyson that he was unable to eat because he had not

yet received the soft diet. Tyson responded that the soft diet was likely delayed because

of “paperwork.” On July 29th, Tenon was examined by Dr. Agawal. Tenon reiterated

his complaint that he had yet to receive a soft diet, and complained to Agawal that the

Motrin was ineffective for the pain. According to Tenon, Agawal confirmed the fracture

and informed Tenon that he would be scheduled for surgery.

       The record indicates that Tenon made additional efforts to seek relief for his pain

and obtain a soft diet. On July 30, 2010, he submitted a “Sick Call Request” to the

medical department, requesting to be seen by a physician’s assistant because the pain

medication for his “broken jaw” was “not working at all.” There was no response to this

request. On August 5, 2010, he submitted an “Inmate Request Slip to Staff Member”

addressed to defendant Long, complaining that his previous sick call request went

unheard, and that he was unable to sleep or eat because of the “extreme pain” in his

broken jaw and the delay in getting it fixed. According to Tenon, there was no response.

On August 14th, nearly one month after his injury, Tenon filed a second “Sick Call

Request” to the medical department seeking “stronger pain medication” because the

“Motrin is not working at all.” On August 19, he filed another “inmate request” with

Defendant Long, outlining the lack of medical treatment and severe pain, and inquiring


“liquid,” rather than a soft diet.

                                             4
about getting his jaw fixed. On that date, he also filed an official grievance with the

prison, detailing his pain and lack of medical care. He was transported five days later to

the Medical Hospital of S.C.I. Pittsburgh, where he was examined by Dr. Chung, a

maxillofacial specialist. Dr. Chung allegedly informed Tenon that he sustained three

fractures to his jaw, two on the left and one on the right, but that the right fracture had

already started to fuse on its own. On September 17, 2010, Dr. Chung surgically repaired

Tenon’s left jaw.

       In his complaint, Tenon alleges that he was denied the soft diet by the dining hall

and forced to try to eat solid foods because “either Defendant Mahuut (sic) did not place

the [soft diet] order” or “Defendant Dreibelbis did not approve” it. As a result of his

“[im]proper diet,” his “diabetes and blood sugar levels [were] out of whack causing

sickness.” He further alleges that defendants Mahute and Tyson failed to respond to his

sick call requests, Dr. Long failed to respond to his direct inmate requests, and Dr.

Agawal failed to address his complaints regarding the severity of his pain and improper

diet. He maintains that, as a direct result of the delay in treatment, the fracture on the

right side of his jaw healed improperly, leaving him with a permanent crooked jaw line,

which prevents him from chewing properly.

                                           II.

       The Prison Litigation Reform Act (PLRA) requires courts to dismiss a prisoner

civil rights suit if the action is frivolous or does not state a claim upon which relief may

be granted. 28 U.S.C.A. § 1915A(b)(1) & (2). To avoid dismissal, the facts as plead must


                                                 5
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678-

79 (2009) (citation omitted). To state a claim for a violation under the Eighth

Amendment, Tenon must allege “(1) that the defendants were deliberately indifferent to

[his] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). To succeed

on his claim, the first prong requires Tenon to establish that objectively the deprivation of

a basic human need was “sufficiently serious.” Under the second prong, he must prove

that, subjectively, the prison official acted with a “sufficiently culpable state of mind.”

Wilson v. Seiter, 501 U.S. 294, 298 (1991). The District Court properly concluded that

his fractured jaw, and resulting pain, constituted an objectively serious medical need. See

Wise v. Lappin, 674 F.3d 939, 941 (8th Cir. 2012) (finding that “a painful broken jaw

constituted an objectively serious medical need”). The District Court dismissed the

claims against defendants Mahute, Tyson, and Agawal, finding that Tenon failed to

allege facts sufficient to demonstrate that they were deliberately indifferent to this serious

medical need.

       We agree with the District Court that the allegations against Tyson do not support

an inference that he acted with deliberate indifference. Nearly a week after the injury,

Tyson examined Tenon and informed him that, as confirmed by the x-ray, his jaw was

fractured. He put Tenon on the “sick call list” to be seen by a medical doctor. In

response to Tenon’s complaint that he had not yet received the soft diet, Tyson indicated

that the delay could be the result of “paperwork.” Tenon does not allege that he followed


                                              6
up directly with Tyson regarding the lack of soft diet or any other medical care; his “sick

call request” was not directed to Tyson or any specific medical provider. It cannot

plausibly be inferred from these facts -- which suggest that Tyson believed that the soft

diet was ordered -- that he was deliberately indifferent to Tenon’s medical needs. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a person acts with deliberate indifference

when “he knows of and disregards an excessive risk to inmate health or safety”); see also

Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (to survive sua sponte

screening for failure to state a claim, the complaint must allege “sufficient factual matter”

to show that the claim is facially plausible).

       With respect to Mahute, the District Court noted that he provided immediate and

proper care to Tenon on the day he was injured. It concluded that Tenon failed to allege

facts to support a claim that, after that date, Mahute was aware he was being denied

adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The District

Court neglected to address the claim, added to the amended complaint, that Mahute failed

to order the soft diet. This allegation was sufficient to state a claim for relief, particularly

where it is alleged that Mahute believed at the time that the jaw was broken. See Estelle,

429 U.S. at 103 (The Eighth Amendment safeguards the prisoner against a lack of

medical care that ‘may result in pain and suffering which no one suggests would serve

any penological purpose.”); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (finding

deliberate indifference “where prison authorities deny reasonable requests for medical

treatment . . . and such denial exposes the inmate to undue suffering or the threat of


                                                 7
tangible residual injury”); McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (“A

core principle of the Eighth Amendment jurisprudence in the area of medical care is that

prison officials with knowledge of the need for care may not, by failing to provide care,

delaying care, or providing grossly inadequate care, cause a prisoner to needlessly suffer

the pain resulting from his or her illness.”). However, the summary judgment record,

which includes a “Healthy Therapeutic Diet Order Form” and a “Physician’s Order

Form,” both signed by Mahute, clearly establishes that Mahute ordered a soft diet for

Tenon. Because it is clear the claim could not survive judgment as a matter of law, we

will not disturb the District Court’s order dismissing it.

       In dismissing the claim against Dr. Agawal, the District Court noted that,

according to the complaint, Tenon told Agawal the Motrin was “effective” in treating the

pain. This was clearly a typographical error by Tenon. In addition to the delay in

surgery, the crux of Tenon’s claims -- made clear throughout the complaint and its

attachments – is that the Motrin was ineffective in treating his pain.4 See U.S. Express

Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (in determining whether a

complaint states a claim for relief, courts accept as true the allegations in the complaint

and its attachments, as well as reasonable inferences construed in the light most favorable

to the plaintiffs). Indeed, the R&R then acknowledges that Tenon asked Dr. Agawal for

“stronger pain medication” for his “severe jaw pain,” a request which would belie an


4
  For example, the Sick Call Request, dated July 30, 2010, the day after Tenon was seen
by Dr. Agawal, states that he needs “stronger pain medication” because the “[M]otrin is
not working at all.”

                                              8
assertion that the medication was effective. Furthermore, it was Dr. Agawal who

confirmed that Tenon required surgery for his jaw fracture. In the face of that knowledge

and the knowledge that it had been nearly two weeks since the injury, yet the prescribed

soft diet had not been provided, Tenon’s allegations that Agawal failed to respond to his

claims for stronger pain medication for his “excruciating pain” are sufficiently serious to

support an Eighth Amendment claim. See Estelle, 429 U.S. at 103; Rouse, 182 F.2d at

197 (deliberate indifference is demonstrated where “a prison official . . . knows of a

prisoner’s need for medical treatment but intentionally refuses to provide it”).

Accordingly, the District Court erred in dismissing the claims against Dr. Agawal.

                                           III.

       The remaining question is whether the summary judgment record established that

defendants Long and Dreibelbis were deliberately indifferent to Tenon’s serious medical

need “by intentionally denying or delaying medical care.” Giles v. Kearney 571 F.3d

318, 330 (3d Cir. 2009).

       In granting summary judgment to defendant Long, the District Court concluded

that his “only involvement in the treatment of Plaintiff’s jaw injuries was that Plaintiff

sent him two request slips.” It further concluded that, because Tenon “had been fully

evaluated by the prison medical staff, and a course of treatment had been recommended[,

a]ny failure of Defendant Long to provide treatment beyond the basic medical care

mandated by the Eighth Amendment speaks more to the adequacy of the medical care




                                              9
than the absolute denial of medical care alleged by Plaintiff, and as such is not a viable

Eighth Amendment claim.” We disagree with the District Court’s disposition of this

claim for two reasons. First, it mischaracterizes Tenon’s claim. Contrary to the District

Court’s conclusion, Tenon’s claim is not a dispute over the adequacy of the treatment or

the need to pursue one course of treatment over another, either of which generally fails to

state a claim for relief under the Eighth Amendment. See United States v. Fayette

County, 599 F.2d 573, 575 n.2 (3d Cir. 1979) (“When a prisoner had 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.”) (quotation marks omitted). Rather, the gravamen of

Tenon’s claim against Long is that a prescribed course of treatment – a soft diet and

surgery – were not being provided, and that he was needlessly suffering pain as a result.

Such a claim is cognizable under the Eighth Amendment. See White v. Napoleon, 897

F.2d 103, 109 -10 (3d Cir. 1990) (prison officials are deliberately indifferent to a

prisoner’s serious medical needs when they “intentionally deny[ ] or delay[ ] medical

care or intentionally interf[ere] with the treatment once prescribed”) (citing Estelle, 429

U.S. at 104) (emphasis in original) (citations omitted)); Berry v. Peterman, 604 F.3d 435

(7th Cir. 2010) (8-week delay in providing effective treatment for dental pain is

actionable); see also Boyd v. Knox, 47 F.3d 966, 968–69 (8th Cir.1995) (3–week delay in

dental care for infected and impacted tooth where swelling and pus were assessed,




                                             10
coupled with knowledge of inmate's suffering, can support finding of Eighth Amendment

violation).

       Second, as the moving party, Long has the burden to demonstrate that there is no

genuine issue of fact. Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d

817, 824 (3d Cir. 1951). The only evidence presented in support of the motion was a

copy of Tenon’s deposition. According to Long, the deposition demonstrates that Tenon

was receiving “ongoing medical care” and, therefore, any failure to respond to the

medical requests does not demonstrate deliberate indifference. The “ongoing medical

care” Long refers to is Tenon being seen by Mahute, Tyson, and Agawal, and being

recommended for surgery. Tenon had alleged that despite these “medical interventions,”

as Long refers to them, he did not receive the prescribed care. The deposition does not

negate that contention. The Inmate to Staff Requests are probative evidence that Dr.

Long was aware of Tenon’s complaints and, absent any evidence to the contrary – which

Dr. Long failed to provide − is sufficient to create a genuine issue of fact. Viewing the

evidence in the light most favorable to Tenon, as we must, we cannot agree with the

District Court that summary judgment was warranted.5

       A § 1983 action cannot be premised on a theory of respondeat superior. See Rode

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Defendant Dreibelbis must have


5
  Dr. Long argued that the claims against him should be dismissed for failure to exhaust
administrative remedies because Tenon failed to name him in his grievance. We agree
with the District Court that Tenon has overcome this procedural default because the
Initial Review Response to the grievance clearly indicates that Long was put on notice of
the claim. See Williams v. Bear, 482 F.3d 637, 640 (3d Cir. 2007).

                                            11
personal involvement, including participation, or actual knowledge and acquiescence, to

be liable. Id. Tenon alleged that Dreibelbis had direct knowledge of his serious medical

injury but failed to approve the prescribed treatment and unreasonably delayed the

recommended treatment. We agree with the District Court that Dreibelbis met his burden

to demonstrate that there is no genuine issue of fact regarding whether he was

deliberately indifferent to Long’s medical needs. In support of his motion for summary

judgment, Dreibelbis included an affidavit in which he averred that, as the Corrections

Health Care Administrator (CHCA), he was responsible for the “overall administrative

operation of the Health Care Department at SCI-Smithfield” but was “not responsible for

overseeing and approving the findings and recommendations of doctors and physicians

assistants regarding treatment, medication or diets.” Dreibelbis Aff., ¶¶ 2, 4. He

indicated that “Corizon,” a medical company that contracts with the DOC for medical

services, was responsible for approving all physicians’ orders and scheduling surgeries.

Id. at ¶¶ 5, 17. Dreibelbis’ sole involvement appears to be in reviewing Tenon's

administrative complaint related to this suit. Merely responding to or reviewing an

inmate grievance does not rise to the level of personal involvement necessary to allege an

Eighth Amendment deliberate indifference claim. See Dellarciprete, 845 F.2d at 1208.

Accordingly, summary judgment was warranted on this claim.6



6
  Dreibelbis stated that the scheduling of the surgery was to be done by the “Corizon
Clinical Coordinator,” and approved by “Corizon Clinical Review.” Dreibelbis Aff., ¶17.
On remand, Tenon may wish to again seek leave to amend the complaint to name the
proper defendants. Allowing any such amendment is, of course, within the discretion of

                                            12
       Based on the foregoing, we will affirm the dismissal of the claims against

defendants Tyson and Mahute, and the grant of summary judgment in favor of defendant

Dreibelbis. We will vacate the dismissal of the claims against Dr. Agawal, and the grant

of summary judgment in favor of defendant Long, and remand for further proceedings on

those claims.7




the District Court.
        7
          In its August 22, 2012 order, the District Court declined to appoint Tenon
counsel, after finding that he could present his own case. We agree with its assessment at
that time, and find no abuse of discretion. See Tabron v. Grace, 6 F.3d 147, 156 (3d Cir.
1993) (“The plaintiff's ability to present his or her case is, of course, a significant factor
that must be considered in determining whether to appoint counsel.”). That said, the
District Court indicated its willingness to revisit this issue in the future. Given the
present stage of the case, and the medical evidence that may be involved, the Court may
wish to again consider the Tabron factors on remand. We take no position on whether
that request should be granted.

                                             13
