                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 16-1582
                       ____________

                   JOHN M. BANDA, JR.,
                                            Appellant

                              v.

 S. ADAMS, Unit Director (sued in her individual capacity);
    M. MAIN, Director (sued in his individual capacity); Y.
CORNIEL, Program Coordinator & Treatment Team Member
(sued in her individual capacity); K. STANKIEWICZ, Psy. D,
     ABPP, Clinical Psychologist II (sued in his individual
      capacity); P. DUDEK, Ph.D Clinical Psychologist II
   (sued in his individual capacity); D. STANZIONE, Ed.D.
 Clinical Psychologist II (sued in her individual capacity); L.
CHIAPPETTA, Asst. Social Worker Supervisor & Treatment
      Team Member (sued in her individual capacity); M.
     LEVI, Ms. Staff Clinical Psychologist III & Treatment
      Team Member (sued in her individual capacity); D.
  RODRIGUEZ, LPC, LCADC, Substance Abuse Counselor
 & Treatment Team Member (sued in her individual capacity)
           __________________________________

      On Appeal from the United States District Court
               for the District of New Jersey
              (D.C. Civ. No. 2-15-cv-01887)
          District Judge: Honorable Esther Salas
        __________________________________

      Submitted Pursuant to Third Circuit LAR 34.1(a)
                    September 8, 2016

Before: CHAGARES, KRAUSE and ROTH, Circuit Judges

               (Opinion filed: January 9, 2017)
                                      ____________

                                        OPINION
                                      ____________


PER CURIAM

       John M. Banda, Jr. appeals from an order of the District Court dismissing his civil

rights action. For the reasons that follow, we will affirm.

       Banda was involuntarily committed in 2004 under the New Jersey Sexually

Violent Predator Act (“SVPA”) and is currently confined at the Special Treatment Unit

(“STU”) in Avenel, New Jersey. He has previously challenged his civil commitment in

actions pursuant to 42 U.S.C. § 1983, see generally Banda v. State of New Jersey, 134 F.

App’x 529 (3d Cir. 2005) (holding that Banda could not maintain § 1983 action seeking

release from civil commitment without first having his civil commitment invalidated);

Banda v. New Jersey Special Treatment Unit, 164 F. App’x 286 (3d Cir. 2006) (same);

Banda v. N.J. Dep’t of Mental Health Serv., 160 F. App’x 270 (3d Cir. 2006) (same).

       On March 11, 2015, Banda filed another in forma pauperis civil rights action in

the United States District Court for the District of New Jersey, challenging his civil

commitment. He named as defendants numerous STU staff members, and alleged that

these defendants, out of malice, had deprived him of the care that he needs -- specifically,

meaningful mental health “non-convicted sex offender treatment” -- and the opportunity

for release, and therefore had violated his constitutional rights. Banda sought money

damages and injunctive relief. Banda attached to his complaint a report by Dr. Kris



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
Stankiewicz, a Clinical Psychologist, from June 2014, which, among other things, noted

that Banda, now in his sixties, has an extensive history of offending against pubescent

boys and young men using bondage and aggression, consistently denies this behavior,

refuses to engage in the treatment offered to him at the STU, and falls in the category of

“Moderate/High Range” with respect to his risk of recidivism.

       In an order entered on May 26, 2015, the District Court dismissed Banda’s

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim on which relief may be granted. Specifically, the

District Court determined that any challenge to Banda’s civil commitment under the

SVPA would have to be brought in a petition for a writ of habeas corpus, see Preiser v.

Rodriguez, 411 U.S. 475 (1973), and that his claim for damages could not proceed unless

and until his civil commitment order was invalidated, see Heck v. Humphrey, 512 U.S.

477 (1994).

       On June 3, 2015, Banda filed a timely motion for reconsideration, Fed. R. Civ. P.

59(e), in which he argued that the District Court had misconstrued the nature of his civil

rights complaint. Banda argued that he was not challenging his civil commitment, but

rather pursuing a claim that the defendants were deliberately indifferent, in violation of

the Eighth Amendment, to his need for proper treatment, specifically non-convicted sex

offender mental health treatment as, he alleged, is required by N.J. Stat. Ann. § 30:4-

27.34(b). In a supplemental letter, he argued that the SVPA violates the Equal Protection

Clause as applied to him, because he is not a convicted sex offender. In an order entered

on March 2, 2016, the District Court denied the motion, concluding that the standard for

reconsideration, see Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999),
                                           3
had not been met. In the margin, the District Court observed that, even if Banda’s

complaint was not barred by Heck, he had failed to state a viable Eighth Amendment

claim because he was being offered psychiatric treatment but was refusing it, and mere

disagreements over what constitutes proper treatment for a detained person does not rise

to the level of deliberate indifference.

       Banda appeals. We have jurisdiction under 28 U.S.C. § 1291. In his pro se brief,

Banda asserts that, for the past 11 to 12 years, he has been “warehoused” at the STU, and

that he has not received treatment appropriately tailored to his specific needs as a non-

convicted sex offender. He draws a distinction, as he did in the proceedings below,

between sex offenders who have been convicted of sex offenses and those like himself

who have been civilly committed. He claims that the treatment provided at the STU is

tailored only to the needs of convicted sex offenders, and he argues that the State of New

Jersey has had ample time to provide him with the proper treatment, and that he should

now be released.

       We will affirm. To the extent that Banda is seeking immediate release from his

civil commitment, the District Court properly concluded that he must rely on a petition

for a writ of habeas corpus. See Preiser, 411 U.S. at 500; see also Souder v. McGuire,

516 F.2d 820, 823 (3d Cir. 1975) (involuntary commitment is type of “custody”

actionable under habeas statute). Banda’s claims are not cognizable under § 1983 at this

time because his civil commitment order has not been invalidated by an appropriate

tribunal, and a favorable outcome in a § 1983 action would necessarily and improperly

imply the invalidity of his confinement at the STU. See Wilkinson v. Dotson, 544 U.S.

74, 80-82 (2005); Heck, 512 U.S. at 486-87. Banda’s emphasis in his brief that he has
                                           4
been “warehoused” for the past 11 to 12 years, that the State of New Jersey has had

ample time to treat him, and that he should now be released, is, as the District Court

concluded, fundamentally an argument that sounds in habeas. Accordingly, dismissal of

Banda’s complaint without prejudice is the proper course of action, see Banda, 164 F.

App’x at 287.

       We further agree with the District Court that Banda, to the extent that he has

alleged a denial of treatment that is not barred by Heck and/or Preiser, has failed to state

an Eighth Amendment violation. Banda, as a civilly committed individual, enjoys due

process protections under the Fourteenth Amendment. See Natale v. Camden County

Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003). Without deciding whether the

Fourteenth Amendment provides greater protections, we have found it sufficient to apply

the Eighth Amendment standard set forth in Estelle v. Gamble, 429 U.S. 97 (1976),

pertaining to prisoners’ claims of inadequate medical care, when evaluating a claim for

inadequate medical care by a non-convicted detainee. Id. In Estelle, the Supreme Court

held that the Eighth Amendment proscribes deliberate indifference to prisoners’ serious

medical needs. 429 U.S. at 103-04. Prison authorities are, however, accorded

considerable latitude in the diagnosis and treatment of prisoners, see Durmer v.

O’Carroll, 991 F.2d 64, 67 (3d Cir. 1979). Disagreements about treatment do not

ordinarily constitute deliberate indifference. Id.

       The statute upon which Banda relies provides that “[t]he Division of Mental

Health Services in the Department of Human Services shall provide or arrange for

treatment for a person committed pursuant to this act,” and “[s]uch treatment shall be

appropriately tailored to address the specific needs of sexually violent predators,” N.J.
                                              5
Stat. Ann. § 30:4-27.34(b). Banda was scheduled to be released from prison on or about

February 4, 2004 when, on January 22, 2004, the New Jersey Attorney General filed the

petition for his civil commitment. The civil commitment court found that four of

Banda’s prior offenses constituted “sexually violent offenses” and that thus he was a

sexually violent predator. See In re: Commitment of J.M.B., 964 A.2d 752, 756 (2009).

Banda does not dispute that he has been offered treatment specifically tailored to the

needs of sexually violent predators, and, under the circumstances presented, his attempt

to draw a distinction between non-convicted sexually violent predators and convicted sex

offenders is not persuasive. His assertion that there is some different form of treatment

for non-convicted sex offenders that should be offered to him is not plausible. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plausibility standard “asks for more than a

sheer possibility that a defendant has acted unlawfully”). See also Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (conclusory allegations are insufficient to

survive motion to dismiss). No claim of deliberate indifference is made out where a

significant level of care has been provided and all that is shown is that the civil detainee

disagrees with the health care provider’s professional judgment about what constitutes

proper care.

       For the foregoing reasons, we will affirm the order of the District Court dismissing

Banda’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil

Procedure 12(b)(6).




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