GLD-317                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-2167
                                     ___________

                                 MICHAEL BEARAM,
                                            Appellant

                                           v.

  GEORGE C. WIGEN, Warden; DR. CUTLER; J. HUBLER, LPN; C. SMITH, PA; J.
                        MILLER, Case Manager.
                ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3:13-cv-00050)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 3, 2013
            Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                            (Opinion filed: October 7, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Michael Bearam, a prisoner at the Moshannon Valley Correctional Center

(MVCC) in Pennsylvania, appeals pro se the dismissal of a civil rights action brought

pursuant to Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), alleging a violation of his Eighth Amendment rights. For the reasons that

follow, we will summarily affirm. See LAR 27.4; I.O.P. 10.6.

       In his complaint, 1 Bearam alleged that he has a brain tumor, a

pheochromocytoma, 2 and an advanced degree of kidney damage. He alleged that the

only treatment he received related to these conditions is blood pressure medication, and

that an array of prison doctors failed to treat his condition, with some even denying the

existence of his tumors. The District Court dismissed the amended complaint for failure

to state a claim. See 28 U.S.C. 1915(e)(2)(B)(ii).

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

dismissal for failure to state a claim under a plenary standard. See Lazaridis v. Wehmer,

591 F.3d 666, 670 (3d Cir. 2010) (per curiam). Dismissal is appropriate where the

pleader has not alleged “sufficient factual matter, accepted as true, to state a claim that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard

requires “a two-part analysis.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009). First, the court must separate the complaint’s factual allegations from its

legal conclusions, taking only the factual allegations as true. Id. Second, the court must

determine whether the plaintiff has alleged facts “sufficient to show that the plaintiff has

1
 Bearam’s original complaint was screened by the Magistrate Judge pursuant to 28
U.S.C. § 1915A, who recommended it be dismissed with leave to amend. Bearam filed a
“Motion to Amend” which the District Court treated as an amended complaint.
Construing his filings liberally, we treat both documents as a single, amended complaint.
2
 A pheochromocytoma is a kind of tumor affecting the adrenal glands. See STEDMAN’S
MEDICAL DICTIONARY 1480 (28th ed. 2006).
                                               2
a plausible claim for relief.” Id at 211. “We may also consider documents attached to

the complaint.” Huertas v. Galazy Asset Management, 641 F.3d 28, 32 (3d Cir. 2011)

(per curiam). We may affirm on any basis supported by the record. Murray v. Bledsoe,

650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

       To state a claim for deliberate indifference to a serious medical need in violation

of the Eighth Amendment, a plaintiff must show 1) deliberate indifference by prison

officials to 2) the prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97,

106 (1976). “To 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). Where prison officials know of the prisoner’s serious medical need,

deliberate indifference will be found where the 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 v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999). In order to find deliberate indifference, “the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994).

       We may easily affirm the dismissal as to three of the five defendants, as “J.

Hubler, LPN; C. Smith, PA; J. Miller, Case Manager” appear nowhere in the complaint

other than the caption. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (holding
                                             3
that personal involvement was a necessary element in a civil rights action against an

individual government defendant). Almost as easily, we may affirm the dismissal as to

George C. Wigen, warden of MVCC, as his sole involvement appears to be in reviewing

Bearam’s administrative complaint related to this suit. See id. Additionally, as

nonmedical personnel, Wigen is entitled to presume the competence of medical staff in

treating a prisoner, meaning that his conduct cannot, without much more, amount to

“deliberate indifference.” See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

       The final defendant is Dr. Cutler. Dr. Cutler’s involvement is unclear. The factual

allegations against Dr. Cutler, stripped of legal conclusions not entitled to the

presumption of truth, are that:

       Dr. Cutler, recommends High Blood Pressure Pills, which are totally
       inadequate to remedy my Kidney or Tumor problem. Dr. Cutler refuses to
       perform Surgery so as to remove the Tumor. Further, Dr. Cutler, refuses a
       Blood Transfusion . . . refuses to conduct an MRI, CT scan, or Surgery to
       remove the Tumor in the Brain. Dr. Cutler said: ‘the Blood test shows
       negative.’ Inspite of my pain, slow lost of eye sight, swelling in the chest,
       groin area, all of which I am constantly complaining of to the Medical
       Staff. . . Dr. Cutler made clear that I do have a High Blood pressure. What
       Dr. Cutler is refusing to acknowledge is the Pheochromocytoma which is
       the root cause of my High Blood pressure. Dr. Cutler told me to keep
       looking at the ‘call out’ for my name.

       Amended Complaint at 2-3 (errors in original). Taking these allegations as true,

they do not rise to the level of deliberate indifference, and are at best an allegation of

medical malpractice. See Spruill, 372 F.3d at 235 (“Allegations of medical malpractice

are not sufficient to establish a Constitutional violation.”).


                                               4
       Bearam asserted that Dr. Cutler either misdiagnosed or refused to diagnose his

tumors, and did not order additional testing after some initial diagnostics 3 suggested that

Bearam did not have tumors. Without more, the decision not to order additional

diagnostic tests will not constitute deliberate indifference, as it suggests mere negligence,

if that. See Gamble, 429 U.S. at 106. Bearam’s allegation that Dr. Cutler is “refusing to

acknowledge” his tumors does not substitute for a plausible allegation that Dr. Cutler

actually knew certain tumors existed and refused to treat them. See Schieber v. City of

Philadelphia, 320 F.3d 409, 421 (3d Cir. 2003). Here, we have instead an allegation that

Dr. Cutler performed some investigation and determined that Bearam does not have the

condition he thinks he has; while Dr. Cutler could conceivably be wrong, he cannot

consciously disregard a risk he has found reason to believe does not exist. There are no

facts to draw an inference of a substantial risk of serious harm, and Dr. Cutler has

accordingly drawn the opposite inference. 4

       Finding no substantial question to be presented by this appeal, we will summarily

affirm the judgment of the District Court.

3
  In addition to the allegations relating to Dr. Cutler himself, the complaint and the
documents attached also suggest that multiple MRIs were performed at a previous prison,
that while at MVCC additional urinalysis and blood tests have been performed, and that
Bearam saw a nephrologist, with the result that no evidence of tumors has been found. It
is not clear which of these tests were ordered by or reviewed by Dr. Cutler personally,
beyond the blood test referenced in the text.
4
 Under the circumstances presented here, where the plaintiff has already amended his
complaint once to allege deliberate indifference, the District Court was not obliged to
give Bearam additional leave to amend. See Grayson v. Mayview State Hospital, 293
F.3d 103, 114 (3d Cir. 2002).
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