                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1224
                                      _____________

                                 MICHAEL K. MILLER,
                                            Appellant

                                              v.

                     CAROL STEELE-SMITH, Deputy Warden;
               SOUTHERN HEALTH PARTNERS; BEAVER COUNTY;
           BETH HARRIS, MSM; BETTY WEGNER, RN; ANGELA PUGH, LPN
                               _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (W.D. Pa. No. 2-15-cv-00662)
                      Magistrate Judge: Honorable Lisa P. Lenihan
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 12, 2017

             Before: CHAGARES, JORDAN, and FUENTES, Circuit Judges.

                                (Filed: November 6, 2017)
                                    _______________

                                        OPINION*
                                     _______________

JORDAN, Circuit Judge.

       Michael Miller appeals from the grant of summary judgment against him on his



       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
claims that Southern Health Partners, Beth Harris, and Betty Wegner (collectively, the

“Defendants”) violated his Eighth and Fourteenth Amendment rights.1 Miller claims that

the Defendants were deliberately indifferent to the wrist fracture he suffered in a car

crash that resulted in his arrest and incarceration for driving under the influence. For the

reasons that follow, we will affirm.

I.     Factual Background2

       On the night of May 23, 2013, Miller was driving under the influence of alcohol

and prescription medications, and he crashed his car. Police officers arrived at the scene

of the accident and, after tracking Miller to a residence he had fled to on foot, arrested

him for driving under the influence. The police then transported Miller to the Heritage

Valley Emergency Department. At the time of the arrest, Miller had two prior DUI

convictions and was on parole. His criminal behavior and arrest that night constituted a

violation of his parole.


       1
          Miller had a dual status when he was detained at Beaver County Jail: he was
both a pre-trial detainee and a parole revocee. Case law makes clear that pre-trial
detainees are protected by the Due Process Clause of the Fourteenth Amendment, not the
Eighth Amendment. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir.
2003). It is unclear whether the Eighth or Fourteenth Amendment affords protections to
parole revocees, but we need not address that issue now. Because a Fourteenth
Amendment claim for inadequate medical care is analyzed pursuant to the same standard
applied to an Eighth Amendment claim, we will analyze Miller’s claim in accordance
with that familiar framework. See id. at 581-82 (explaining “that the Fourteenth
Amendment affords pretrial detainees protections at least as great as the Eighth
Amendment” and proceeding to evaluate a pretrial detainee’s claim under the Eighth
Amendment framework) (internal quotation marks and citation omitted).
       2
         When evaluating summary judgment, we view the facts in the light most
favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986).
                                              2
       The Heritage Valley Emergency Department Report noted that Miller had

abrasions on his left hand and complained only of mild lumbar back pain. The report did

not mention an injury to Miller’s left wrist. Heritage Valley discharged Miller to the

police, who transported him to Beaver County Jail (“BCJ”). Miller was, he says, in a

“blackout” state of intoxication at the time and thus has minimal recollection of the

events that transpired between his accident and his arrival at BCJ.

       Nurse Angela Pugh examined Miller the following morning, May 24, as part of

BCJ’s medical intake screening. Pugh’s notes on the screening form stated, in relevant

part, that Miller had cuts to his left hand and was under the influence of alcohol.

Although Pugh circled “Y” next to the prompt asking if the inmate showed “visible signs

of ... injury ... or other symptoms suggesting the need for immediate emergency medical

referral,” she wrote that Miller had been “cleared” by the hospital. (App. at 113.) Pugh

did not note an injury to Miller’s left wrist on the screening form. Miller completed a

medical information release form authorizing Heritage Valley to release his medical

records, including “any/all x-ray/lab results,” to BCJ. (App. at 45.) That same day,

Dr. Earnie Bonatatibus prescribed for Miller two medications: Flexeril and Motrin.

BCJ’s medication administration record reflects that Miller received those drugs, as

prescribed, on May 24, 25, 26, and 27.3 Dr. Bonatatibus also issued an order on May 26

for Miller to be provided with an extra blanket to elevate his left arm.


       3
         Miller disputes the records showing that he received his pain medication every
day he was housed at BCJ. (App. at 83 (“I know I was in a great deal of pain and didn’t
receive pain medication for at least a week at the jail. I don’t believe I received
anything.”).) Putting aside the fact that Miller’s language falls short of a complete denial,
                                              3
       On May 28, Dr. Bonatatibus examined Miller and instructed the medical staff to

request Miller’s medical records from Heritage Valley to determine if the hospital had

performed an x-ray of his left wrist. The doctor instructed that, if not already performed,

an x-ray of Miller’s left wrist should be scheduled. Betty Wegner, a registered nurse at

BCJ, acknowledged Dr. Bonatatibus’s order in writing, and BCJ’s Medical Services

Manager, Beth Harris, noted the instructions on Miller’s progress notes. Dr. Bonatatibus

also discontinued Miller’s Motrin, and prescribed him Naproxen and Tylenol. BCJ’s

records reflect that Miller received his medications, as prescribed, on May 28, 29, 30, and

31.

       Heritage Valley faxed Miller’s medical records to BCJ on May 28, which

confirmed no left wrist x-ray had been taken during his May 23 visit.4 Although the fax

to BCJ was dated May 28, and a handwritten note by an unidentified individual

confirmed that the records were received on May 28, Harris did not make a notation on

Miller’s progress notes that the fax was received until May 31. Accordingly,

Dr. Bonatatibus was not informed that a left wrist x-ray had not been performed until

May 31, when he again ordered an x-ray. That same day, Harris scheduled the x-ray for

June 3. The record does not explain why Harris did not note the receipt of the medical

records until May 31 or why she scheduled the x-ray for June 3.




the record contains nothing that would permit an inference that either individual
defendant was responsible for dispensing Miller’s medication.
       4
         Heritage Valley had previously provided BCJ with some of Miller’s records
from his May 23 visit, but that set of records may not have been complete.
                                             4
       On June 3, an x-ray of Miller’s left wrist revealed a fracture. Although Harris did

not report the x-ray results to Dr. Bonatatibus until June 6, the record is unclear as to

when Harris first saw the x-ray report. Harris admits she did not call to check on the x-

ray results and that it was possible she was away from her usual post from June 3 to

June 6 for electronic medical record training. In the meantime, Wegner had examined

Miller on June 4. The physical assessment form noted that Miller’s left wrist was

swollen and that there was a fracture.

       After Harris informed Dr. Bonatatibus of the x-ray results on June 6,

Dr. Bonatatibus ordered that Miller be examined by an orthopedic specialist. That same

day, Harris scheduled an appointment with an orthopedic specialist, Dr. Bernard Hirsch,

for June 10. Dr. Hirsch examined Miller on June 10. Dr. Hirsch recommended that

Miller be referred to a hand surgeon.

       Also on June 10, the Court of Common Pleas of Beaver County issued an order

releasing Miller on a $1.00 bond and instructing that Miller be detained and transported

to a state facility. BCJ was informed that the transfer would occur on June 13.

       BCJ’s records reflect that Miller received his medications, as prescribed, from

June 1 to June 13. The record also reflects that Miller was provided with a sling or splint

for his left wrist at some point during his incarceration.

       Harris filled out Miller’s Inmate Transfer Information form, noting in relevant

part, that Miller: (1) had a splint on his left hand/wrist for a diagnosed fracture; (2) was

on Naproxen and Tylenol; (3) had been seen by an orthopedist on June 10; and



                                              5
(4) required a consultation with a hand surgeon. Miller was transferred to state custody

on June 13.

       Miller was not examined by a hand surgeon until July 3, nearly three weeks after

Miller’s transfer from BCJ. The surgeon assessed Miller’s injury as a “[m]alunion left

distal radius” and explained that, because it had been six weeks since the fracture, the

“bone [was] nearly completely healed and … in [an] unacceptable alignment.” (Doc. No.

55-14.) The surgeon operated on Miller’s left wrist on August 1.

II.    Procedural History

       Miller sued Beaver County, Deputy Warden Carol Steele-Smith, BCJ’s medical

services provider Southern Health Partners, and various John and Jane Doe medical staff

and prison officials, pursuant to 42 U.S.C. § 1983, alleging that he had been subjected to

cruel and unusual punishment and denied due process of law. The parties consented to

the jurisdiction of a United States Magistrate Judge. Miller later amended his complaint

to add Beth Harris, Betty Wegner, and Angela Pugh as defendants. Pugh was

subsequently dismissed from the case by stipulation. All defendants moved for summary

judgment, which the Court granted. Miller does not appeal the grant of summary

judgment in favor of Beaver County and Warden Steele-Smith. Miller only appeals the

order granting summary judgment for Southern Health Partners, Harris, and Wegner.




                                             6
III.     Discussion5

         Miller argues that the Magistrate Judge erred in granting summary judgment

against him because the record contains sufficient evidence for a jury to determine that

Harris and Wegner were deliberately indifferent to his wrist fracture and that Southern

Health Partners is liable for its failure to train or supervise Harris and Wegner. Miller

further contends that the alleged deliberate indifference resulted in the malunion of his

wrist.

         The Eighth Amendment requires that jails provide their inmates with adequate

medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). A jail official’s deliberate

indifference to an inmate’s serious medical needs thus runs afoul of the Eighth

Amendment’s prohibition on cruel and unusual punishment. Pearson v. Prison Health

Serv., 850 F.3d 526, 534 (3d Cir. 2017) (citing Estelle, 429 U.S. at 104-05). To succeed

on an Eighth Amendment medical care claim, “a plaintiff must make (1) a subjective

showing that ‘the defendants were deliberately indifferent to [his or her] medical needs’

and (2) an objective showing that ‘those needs were serious.’” Id. (quoting Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). The parties agree that Miller’s wrist fracture

was a serious medical need. Accordingly, our inquiry focuses on whether it was error to


         5
          The Magistrate Judge exercised jurisdiction under 28 U.S.C. §§ 636(c)(1) and
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a grant of
summary judgment is de novo. Tomasso v. Boeing Co., 445 F.3d 702, 705 n.3 (3d Cir.
2006). Summary judgment is appropriate if there are no genuine disputes of material fact
and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Anderson, 477 U.S. at 250. Again, in reviewing a summary judgment ruling, we view the
facts in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 248-49.

                                             7
determine that, as a matter of law, the record cannot support a finding that Harris or

Wegner acted with deliberate indifference to Miller’s wrist fracture.

       To make out a subjective showing of deliberate indifference, Miller had to

demonstrate that Harris and Wegner were “aware of facts from which the inference could

be drawn that a substantial risk of serious harm exist[ed]” and that Harris and Wegner

also drew that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words,

Miller must show that Harris and Wegner “acted or failed to act despite [their] knowledge

of a substantial risk of serious harm.” Id. at 842. Miller can make a subjective showing

of deliberate indifference by adducing circumstantial evidence that “the excessive risk

was so obvious that [Harris and Wegner] must have known of the risk.” Beers-Capitol v.

Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842).

       We have found prison officials to be deliberately indifferent in a number of

circumstances, “including where the prison official (1) knows of a prisoner’s need for

medical treatment but intentionally refuses to provide it; (2) delays necessary medical

treatment based on a non-medical reason; or (3) prevents a prisoner from receiving

needed or recommended medical treatment.” Rouse, 182 F.3d at 197.

       As we have previously explained, however, a plaintiff cannot show deliberate

indifference simply by demonstrating negligence in addressing a medical condition or a

disagreement over the course of treatment received. Durmer v. O’Carroll, 991 F.2d 64,

67 (3d Cir. 1993) (explaining that deliberate indifference requires something “more than

negligence”); Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346

(3d Cir. 1987) (“[M]ere allegations of [medical] malpractice do not raise issues of

                                             8
constitutional import.”); id. (“[M]ere disagreement as to the proper medical treatment

[does not] support a claim of an [E]ighth [A]mendment violation.”).

       A.     Delay in Scheduling X-Ray

       Miller argues that the delay in scheduling his x-ray constituted deliberate

indifference and that the Magistrate Judge erred in holding, as a matter of law, that the

delays attributed to Harris did not constitute deliberate indifference. The Judge provided

two reasons for why the delay in scheduling Miller’s x-ray was not deliberate

indifference: (1) case law dictates a delay in scheduling an x-ray does not constitute

deliberate indifference, and (2) at most, Harris was negligent.

       We agree that the record supports, at most, a conclusion of negligence.6 Miller

contends that Harris delayed scheduling his x-ray by not immediately implementing

Dr. Bonatatibus’s May 28 order to schedule an x-ray, and by further delaying the

implementation of Dr. Bonatatibus’s May 31 order to schedule an x-ray, which was not

then set to occur until June 3.


       6
          We agree with Miller that the facts here are distinguishable from the case relied
upon by the Magistrate Judge to determine that Harris’s delay in scheduling his x-ray did
not constitute deliberate indifference. In that case, Cobbs v. Caputo, 578 F. App’x 84 (3d
Cir. 2014), we repeated the well-established principle that a “medical decision not to
order an X-ray … does not represent cruel and unusual punishment.” Id. at 85 (quoting
Estelle, 429 U.S. at 107) (emphasis added). Here, Harris’s delay in ordering the x-ray
was not the result of a medical decision. Dr. Bonatatibus decided to order the x-ray. The
claimed “delay” is instead that Harris did not implement Dr. Bonatatibus’s order
immediately. The implicit conclusion that deliberate indifference cannot be shown by a
delay motivated by a non-medical reason in implementing a doctor’s order is contrary to
our precedent. See Rouse, 182 F.3d at 197 (“We have found ‘deliberate indifference’ in a
variety of circumstances, including where the prison official … delays necessary medical
treatment based on a non-medical reason … .”).

                                             9
       As an initial matter, the record contains no evidence that Harris actually received

Heritage Valley’s fax containing the medical records on May 28. The record

demonstrates only that Harris was aware of Dr. Bonatatibus’s May 28 order and noted the

receipt of the medical records on May 31.7 Harris reported that same day to

Dr. Bonatatibus that no x-ray had been performed. The record also demonstrates that

Harris did not delay in executing Dr. Bonatatibus’s May 31 order to schedule an x-ray.

Rather, on May 31, she scheduled the x-ray for June 3. There is simply no evidence,

circumstantial or otherwise, that Harris was aware that scheduling an x-ray for June 3

would cause Miller harm. Even if Harris forgot to inform Dr. Bonatatibus for three days

that no x-ray had been performed earlier, at most that demonstrates negligence, which is

not sufficient to make out a claim of deliberate indifference. See Durmer, 991 F.2d at 67

(explaining that “a prisoner must show more than negligence” to establish deliberate

indifference).

       Furthermore, a deliberate indifference claim premised on delayed medical

treatment requires a plaintiff to demonstrate that “the delay … was motivated by non-

medical factors.” Pearson, 850 F.3d at 537. The lack of an identifiable medical reason

explaining a treatment delay does not necessarily mean that the delay was motivated by a

non-medical reason. The record does not support finding that any delay attributable to

Harris was motivated by non-medical factors, such as a desire to punish Miller, to lessen



       7
        While an unidentified BCJ employee noted receipt of Heritage Valley’s fax on
May 28, Miller did not link the notation to Harris.

                                            10
her own workload, or to save BCJ money. See, e.g., Durmer, 991 F.2d at 68-69

(reversing summary judgment for defendant doctor, in part because the record contained

evidence that the denial of medical treatment was motivated by a desire to avoid the

“burden and expense” the prison would have incurred).8

       B.       Delay in Reporting X-Ray Results

       Miller next argues that Harris and Wegner were deliberately indifferent for failing

to relay the June 3 x-ray results to Dr. Bonatatibus before June 6. Again, there is no

evidence to establish when Harris or Wegner received the x-ray results. Harris testified

that she was away from her usual post between June 3 and June 6 for electronic medical

record training, but she admitted she never called to check about the x-ray results. The

record supports, at most, a finding that she was either negligent in failing to review the x-

ray results prior to June 6 or negligent in failing to report the results to Dr. Bonatatibus

until June 6.

       Wegner examined Miller on June 4 and noted that Miller had a fracture.

Interpreting the record in the light most favorable to Miller, we may infer that Wegner

was aware of the x-ray results on June 4 when she made that notation. Miller argues that



       8
          Miller contends that Wegner was also deliberately indifferent by failing to order
an x-ray on May 28 because the record shows she acknowledged Dr. Bonatatibus’s
May 28 order in writing. That order, however, directed the medical staff to first obtain
Miller’s medical records to determine whether an x-ray had already been performed.
There is no evidence Wegner received the records Heritage Valley faxed on May 28 or
that the failure to check that the medical records had come in was anything more than
negligence. And, as is true of Harris, the record contains no evidence suggesting that any
delay was motivated by non-medical factors.

                                              11
because Wegner was a registered nurse, it would have been immediately apparent to her

that further delaying treatment would expose him to excessive risk of harm. The record,

however, does not support that Wegner denied Miller medical treatment for his wrist

fracture or that, between June 4 and June 6, she delayed any treatment already prescribed

for Miller. Even assuming that failing to immediately report the x-ray results to

Dr. Bonatatibus or to otherwise inform him of her belief that Miller had a fracture rises to

the level of medical malpractice, that showing is still not sufficient to make out a claim of

deliberate indifference.9 See Lanzaro, 834 F.2d at 346 (“[M]ere allegations of

malpractice do not raise issues of constitutional import.”).

       C.     Circumstantial Evidence of Deliberate Indifference

       Miller next contends that the totality of delays caused by Harris constitute

circumstantial evidence that she was subjectively aware of the risk to Miller of delaying

his treatment. In addition to the delays in ordering an x-ray and reporting the results,

Miller faults Harris for scheduling the appointment with Dr. Hirsch for June 10 and for

failing to schedule a consultation with a hand surgeon.

       The record does not support Miller’s inferential leap. There is no evidence, direct

or circumstantial, that Harris had a subjective awareness that the speed at which Miller’s

medical care progressed put him at risk for suffering a malunion of his wrist. That alone

is sufficient to defeat Miller’s claim against Harris. See Farmer, 511 U.S at 837



       9
         To be clear, we are not tasked with deciding whether Harris or Wegner was
actually negligent, or actually committed medical malpractice, because that issue is not
before us. Accordingly, we do not opine on that issue.
                                             12
(explaining that a prisoner asserting an Eighth Amendment claim must show that “the

[prison] official … [was] aware of facts from which the inference could be drawn that a

substantial risk of serious harm exist[ed], and [that the prison official also drew] the

inference”). Nor is Miller’s dissatisfaction with the speed at which his treatment

progressed sufficient to establish deliberate indifference. See, e.g., Lanzaro, 834 F.2d at

346 (explaining that “mere disagreement” over the proper course of medical treatment

does not establish an Eighth Amendment violation).10

       D.     Southern Health Partners’ Liability

       Last, Miller argues that the Magistrate Judge erred in granting summary judgment

in favor of Southern Health Partners. We agree with the Magistrate Judge that that

defendant cannot be liable under a theory of municipal liability because Miller has failed

to demonstrate that he suffered a violation of his constitutional rights.11 See City of Los


       10
          Miller also argues that Harris, who was not licensed to practice nursing,
engaged in the unauthorized practice of nursing by implementing three of
Dr. Bonatatibus’s orders, namely, when she scheduled an x-ray, scheduled a doctor’s
appointment, and provided Miller with “bottom bunk status.” (App. 95-96.) While we
need not resolve the issue, we note our doubt that performing ministerial tasks such as
scheduling appointments or assigning sleeping placements constitutes the unauthorized
practice of nursing in Pennsylvania. See 63 Pa. Stat. and Cons. Stat. § 653(10)
(permitting non-licensed individuals to perform “[a]uxiliary services … including …
minor and very basic nursing services for patients”). Even if such acts did constitute the
unauthorized practice of nursing, that does not transform ordinary negligence into a
matter of constitutional concern.
       11
           BCJ contracted with Southern Health Partners to serve as the jail’s medical
services provider. Because Southern Health Partners was acting under color of state law
in that capacity, it was subjected to the municipal liability claim at issue here. See
Natale, 318 F.3d at 583-84 (analyzing claim against prison’s private medical services
provider under a municipal liability framework).

                                             13
Angeles v. Heller, 475 U.S. 796, 799 (1986) (explaining that a municipality cannot be

held liable pursuant to § 1983 if the plaintiff suffered no constitutional injury).

IV.    Conclusion

       The record demonstrates Miller received medical care throughout his three-week

incarceration at BCJ. BCJ staff prescribed and provided Miller with pain medication,

provided him with a sling, assessed his need for an x-ray, arranged for Miller to see an

orthopedic specialist, and ensured that the state authorities to whom he was transferred

were aware of his condition and the need to see a hand surgeon.12 To the extent the

record demonstrates any culpability on the part of Harris or Wegner, it does not rise

above negligence or simple medical malpractice. Miller’s disagreement with his course

of treatment, or the speed at which his treatment progressed, is insufficient to establish

deliberate indifference to his wrist fracture.

       We will therefore affirm the grant of summary judgment.




       12
          We note that state authorities, not the Defendants, were responsible for
scheduling Miller’s appointment with a hand surgeon three weeks after he was
transferred to state custody. Miller has raised no issue with that delay. (See App. 63
(Miller Expert Report) (“Upon entering the State Correctional System, Mr. Miller
received the treatment his serious medical condition required … .”).)
                                                 14
