                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-4242
                                       ___________

                               TONY LEE MUTSCHLER,
                                            Appellant

                                             v.

                         SCI ALBION CHCA HEALTH CARE;
                             RN. MS. SANDY MALENA
                       ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                          (D.C. Civil Action No. 09-cv-00265)
                   Magistrate Judge: Honorable Susan Paradise Baxter
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 26, 2011

                Before: JORDAN, GARTH and BARRY, Circuit Judges

                           (Opinion filed: September 27, 2011)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Tony Lee Mutschler, proceeding pro se, appeals from the District Court’s order

granting defendants’ motion to dismiss. For the reasons that follow, we will affirm in

part, vacate in part, and remand to the District Court for further proceedings.
I.       Background

         Mutschler, a prisoner at State Correctional Institution (“SCI”) Albion, filed a civil

rights complaint against Sandy Malena, a registered nurse at SCI Albion, and Maxine

Overton, Chief Healthcare Administrator. He alleged that defendants issued, or allowed

the issuance of a latex catheter, which defendants knew he was allergic to, and knew had

previously caused him pain and suffering.

         Mutschler alleged that he informed the medical department of his latex allergy

when he arrived at SCI Albion and that his allergy was documented in his prison medical

file. In October 2008, however, Malena issued him a catheter containing latex. He used

the catheter overnight, which allegedly caused pain and blisters on his penis 1 that resulted

in scarring, erectile problems, undue stress, and depression about his sex life. Mutschler

filed a grievance and informed Overton about the incident. Overton informed Mutschler

that it would not happen again.

         In March 2009, Malena again issued Mutschler a catheter containing latex, which

he used and experienced a burning sensation. He removed the catheter and did not

require medical attention. In April 2009, another nurse issued him a catheter containing

latex. Mutschler did not use the catheter when he realized the product contained latex




     1
     Mutschler’s grievance indicates that it took 60 days for the blisters to clear,
including treatment with Miconazole, an antifungal agent, for 30 days.

                                               2
after reading the fine print on the packaging. 2

            Mutschler filed a civil rights action against Malena and Overton, alleging

violations of his rights under the Fifth, Eighth, and Fourteenth Amendments, and Title II

of the Americans with Disabilities Act (“ADA”). Defendants filed a motion to dismiss,

which was granted. 3 Mutschler then filed a timely appeal.

II.         Jurisdiction and Standard of Review

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

Court's order granting a motion to dismiss for failure to state a claim is plenary. Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). To survive a motion to dismiss,

a complaint must “plead[] factual content that allows the court to draw the reasonable

inference that the defendant[s are] liable for the misconduct alleged.” Ashcroft v. Iqbal,

___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007)). We may affirm the District Court for any reason supported by the

record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005)

III.        Discussion

            The District Court properly dismissed Mutschler’s claims under the Fifth and

Fourteenth Amendments, and ADA for failure to state a claim. However, the District


       2
     Mutschler filed a grievance each time he was given a latex catheter. Overton
considered his first grievance resolved because Mutschler filed the grievance to prevent
the mistake from occurring again. His subsequent grievances were rejected as previously
reviewed and addressed.
       3
           Mutschler then filed a Rule 59(e) motion, which was denied.
                                                  3
Court erred in dismissing Mutschler’s Eighth Amendment claim because his complaint

alleges facts that support a plausible claim of deliberate indifferent to his serious medical

needs.

         A.     Eighth Amendment Claim

         The District Court concluded that Mutschler failed to allege facts that defendants

were deliberately indifferent to his medical needs. 4 The District Court reasoned that the

alleged facts would establish only that defendants acted negligently because Mutschler

did not claim that defendants deliberately exposed him to latex. We disagree.

         For the delay or denial of medical care to rise to a violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment, a prisoner must

demonstrate (1) that 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).

Deliberate indifference requires proof that the official “knows of and disregards an

excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318

F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

         Mere medical malpractice does not constitute deliberate indifference. Estelle v.

Gamble, 429 U.S. 97, 105-06 (1976); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).

Deference is given to prison medical authorities in the diagnosis and treatment of

patients. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979).


   4
      It is undisputed that Mutschler’s complaint adequately alleges that his latex allergy
is serious, as his penis allegedly suffered pain, blisters, and scarring.
                                               4
Unless there is a reason to believe (or actual knowledge) that medical personnel are

mistreating or failing to treat the prisoner, a non-medical prison official, such as an

administrator, generally “will not be chargeable with the Eighth Amendment scienter

requirement of deliberate indifference.” See Spruill, 372 F.3d at 236.

       An Eighth Amendment claim does not require that the defendants acted

intentionally to inflict pain. “[I]t is enough that the [prison] official acted or failed to act

despite [her] knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842;

see Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)

(denial of medical treatment that exposes inmate to “the threat of tangible residual injury”

constitutes deliberate indifference) (internal citations omitted). We have found deliberate

indifference when a “prison official persists in a particular course of treatment ‘in the

face of resultant pain and risk of permanent injury. 5’” Rouse, 182 F.3d at 197 (quoting

White v. Napoleon, 897 F.2d 103, 109-11 (3d Cir. 1990)).

       Mutschler’s allegations against defendants may entitle Mutschler to relief. Based

on the pleadings, it is plausible that Malena knew of Mutschler’s latex allergy based on

his medical file and the 2008 incident, and that Malena persisted on issuing him a

catheter she knew he was allergic to and knew had previously caused him pain, blistering,

and scarring on his penis. Additionally, Overton knew of Mutschler’s allergy and its


       5
         The Supreme Court has noted that deliberate indifference has been found where a
physician injected a prisoner with a medication that he had knew the prisoner was allergic
to, and refused to treat the allergic reaction. Estelle, 429 U.S. at 104 n.10 (citing Thomas
v. Pate, 493 F.2d 151, 158 (7th Cir. 1974)).
                                                5
resultant pain and risk of permanent injury. Thus, the pleadings plausibly suggest that

Overton allowed the issuance of a latex catheter despite this knowledge. Mutschler,

therefore, made the bare showing to survive a motion to dismiss. See Napoleon, 897

F.2d at 109.

       B.      Fifth Amendment Claim

       Mutschler’s District Court pleadings do not explain the basis of his Fifth

Amendment claim. The District Court dismissed the claim on the basis that the

provisions of the Fifth Amendment were not implicated by Mutschler’s complaint and

defendants are not federal actors. See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d

Cir. 2001) (a cognizable Fifth Amendment claim requires defendants to be federal

actors).

       Mutschler explains his “Fifth Amendment” claim on appeal. He claims that due to

his October 2008 latex reaction, he has erectile dysfunction and therefore defendants

have deprived him of his liberty interest in procreation. Because defendants are state

actors, this claim alleges a Fourteenth Amendment violation. Nevertheless, it fails to

state a claim. Although the Supreme Court has recognized a right to reproductive

freedom, see generally Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 875-98

(1992), no court has extended the Fourteenth Amendment to encompass allegations such

as these. We decline to do so now.

       C.      Fourteenth Amendment Claim

       Mutschler alleged a violation of the Equal Protection Clause of the Fourteenth
                                             6
Amendment. His complaint, however, did not provide a basis of this claim. On appeal,

Mutschler explains his claim, asserting that those with higher intelligence than he were

treated more kindly than he and others without higher intelligence. Nevertheless, he does

not support this conclusory allegation with any facts. Therefore, this claim was properly

dismissed. See Iqbal, 129 S. Ct. at 1949 (mere conclusory statements do not state a cause

of action).

       D.     ADA Claim

       Mutschler’s claim that defendants violated Title II of the ADA was properly

dismissed. To establish a violation of Title II of the ADA, an inmate must allege that: (1)

he is a qualified individual with a disability; (2) he was either excluded from participation

in or denied the benefits of some public entity's services, programs, or activities; and (3)

such exclusion, denial of benefits, or discrimination was by reason of his disability. See

42 U.S.C. § 12132. Mutschler’s complaint merely asserts that he is a qualified individual

with a disability because of his mental and medical impairments and that defendants

violated Title II of the ADA. Mutschler failed to allege any facts that demonstrate that

the alleged improper medical care he received was because of his disability. Therefore,

his ADA claim was properly dismissed. 6 See Iqbal, 129 S. Ct. at 1949.

       For the foregoing reasons, we will affirm the District Court’s order to the extent


       6
        The District Court dismissed Mutschler’s ADA claim because it determined that
individuals are not liable under Title II of the ADA. This Court has yet to address
individual liability under Title II of the ADA, and we decline to do so now, as we have
concluded that Mutschler’s ADA claim fails for other reasons.
                                               7
that it dismissed Mutschler’s claims under the Fifth Amendment, Fourteenth

Amendment, and ADA. We will vacate the order to the extent that it dismissed the

Eighth Amendment claims, and we will remand to the District Court for further

proceedings consistent with this opinion.




                                            8
GARTH, Circuit Judge, dissenting.

       I cannot agree with the majority that the complaint meets our established standard

of standard of “deliberate indifference.” As the opinion of the Magistrate Judge recites,

Mutschler

              “. . . does not allege that Defendant Malena deliberately
              exposed him to latex on the two occasions at issue, and
              his only specific allegation regarding Defendant Overton
              is that she assured him after the first time he was exposed
              to latex that it would not happen again. His allegations
              against each defendant sound in negligence and do not rise
              to an Eighth Amendment violation. Plaintiff does state in
              his Amended Complaint that one of the defendants (he
              could be referring to either Malena or Overton) ‘was
              reckless and indifferent with her patient care and [his]
              special medical need[.]’ [ECF No. 18 at p. 1]. This rote
              allegation - which he made in his Amended Complaint in
              response to Defendants’ contention that he was making a
              claim of negligence only - does not save his Eighth
              Amendment claim from dismissal.”

       I would affirm the judgment dismissing the plaintiff’s amended complaint,

as I cannot conclude that he has alleged a constitutional violation.




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