GLD-069                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-3553
                                     ___________

                                  TONY L. HAYNES,
                                                 Appellant

                                           v.

                              T. MOORE, WARDEN;
                            MR. CROWLEY, DENTIST;
                               MR. WILY, DENTIST
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 09-cv-04958)
                     District Judge: Honorable Timothy J. Savage
                     ____________________________________

        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
                                 December 16, 2010
           Before: AMBRO, CHAGARES AND NYGAARD Circuit Judges

                            (Opinion filed: January 4, 2011)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      In September 2009, Tony L. Haynes, previously a prisoner of the Bucks County

Department of Corrections, filed suit pro se and in forma pauperis against T. Moore, the

prison warden of the Bucks County Correctional Facility, and two dentists at the
institution, whose names he gave as Mr. Crowley and Mr. Wily. Proceeding under 42

U.S.C. § 1983, he claimed that the dentists improperly extracted his wisdom tooth,

causing a permanent hole in his gum and severe irritation and pain. Haynes also alleged

that the dentists were deliberately indifferent to his serious medical needs in violation of

the Eighth Amendment when they ignored his ten subsequent requests for follow-up care

and denied him further treatment to fix the injury between February 2009 and September

2009. The basis for the claim against Moore was his perceived failure to investigate the

grievance Haynes filed in January 2009, in which he complained that he had developed a

severe irritation after the extraction of his wisdom tooth and that he continued to have

difficulties with the gum area despite visiting the dentist five times since then.

       The United States Marshal’s Service tried to effect service on the dental

defendants, but reported that no one in the “medical dept.” knew of dentists by those

names. Also, an Internet search conducted by the Marshal’s Service did not reveal

dentists with those names (or with spelling variants of those names) licensed in

Pennsylvania. Moore, who did receive a copy of the complaint, responded by moving to

dismiss it. The District Court granted the motion and dismissed the complaint as to

Moore. In the memorandum accompanying the order dismissing the complaint against

Moore, the District Court also stated that the Eighth Amendment claim “appear[ed]

deficient” as to the dental defendants. The District Court noted that Haynes wrote, in the

January 2009 grievance attached to the complaint, that he had been to the dentist five

times since his wisdom tooth had been extracted.

       Haynes subsequently submitted another form complaint. On the form, Haynes

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listed Moore, a dentist with the name of Crielly, and a John Doe dentist as defendants.

On the form, he outlined the problems he had with the tooth extraction and aftermath

(including what he described as a “hole” in another tooth) and explained that he had

learned the proper name of one of the dental defendants. He stated that it was Crielly

who put the hole in his gum and Crielly he wished to sue. Haynes explained that he

submitted a grievance about the matter, citing the January 2009 grievance attached to his

initial complaint. In his complaint, he also stated that it was dentists at the State

Correctional Institute at Somerset (SCI-Somerset), where he currently resides, who had to

fix his dental problem.

       Moore again filed a motion to dismiss, noting that Haynes did not assert any new

claims against him in the amended complaint, and incorporating by reference his

previous arguments for dismissal as to him. The District Court, noting that Haynes had

not filed a motion to amend the complaint, treated the amended complaint as a motion to

amend the complaint and denied it. The District Court noted that Haynes wished to add

two defendants who treated him at Bucks County Prison, but concluded that the

amendment would be futile because Haynes’s claims against the defendants amounted to

claims of negligence or professional malpractice that were insufficient to state a

constitutional violation. The District Court dismissed Haynes’s action.

       Haynes appeals. He has filed a motion to dismiss Moore from the appeal. In his

motion, he explains that his “case was for the dentist at Buck[s] County Jail name[d]

Dr[.] Crillcey.” Repeating the name as Dr. Crillcey, Haynes also states that another

dentist, a woman, helped Dr. Crillcey when he put a hole in Haynes’s gum. He notes that

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he went back to Dr. Crillcey approximately four times and that Dr. Crillcey hurt him and

put a hole in his gum and a hole in his tooth before the Bucks County jail sent him to

another dentist for an X-ray. He explains that it was dentists at SCI-Somerset who

provided relief from his dental problem.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We grant Haynes’s motion to

dismiss Moore from this appeal, and construe Haynes’s arguments to mean that he

appeals only from the order in which the District Court construed his amended complaint

as a motion to amend, denied it on the basis that amendment was futile, and dismissed the

action. We review an order denying leave to amend for abuse of discretion. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). To the extent that the District

Court dismissed the claims against the defendants who had not been served pursuant to

its obligation to screen complaints under 28 U.S.C. § 1915A, our review of the dismissal

is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

       As Haynes has admitted that he provided the wrong names for the defendants, the

District Court committed no error in dismissing the claims as to Crowley and Wily.

However, the District Court should have permitted Haynes to amend his complaint to

correct the name of one of the dentists who was initially misidentified. Rule 15 of the

Federal Rules of Civil Procedure provides that leave to amend should “be freely given

when justice so requires.” However, a district court may exercise its discretion and deny

leave to amend on the basis of undue delay, bad faith, dilatory motive, prejudice, or

futility. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.

1997) (citations omitted)

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       The District Court cited futility as its reason for disallowing amendment, on the

basis that claims against the dental defendants amounted to claims of negligence or

professional malpractice that were insufficient to state a constitutional violation. The bar

to plead an Eighth Amendment is high – “[o]nly ‘unnecessary and wanton infliction of

pain’ or ‘deliberate indifference to the serious medical needs’ of prisoners [is] sufficiently

egregious to rise to the level of a constitutional violation.” Spruill v. Gillis, 372 F.3d

218, 235 (3d Cir. 2004). Neither allegations of medical malpractice nor a disagreement

about a course of treatment establishes a constitutional violation. See id. However,

violations include the intentional infliction of pain on a prisoner; the denial of reasonable

requests for medical treatment where the denial exposes the prisoner to undue suffering

or the threat of tangible residual injury; and the intentional refusal to provide care in

cases where the need for medical care is known. See id. The medical condition must be

serious; and the prison officials must be deliberately indifferent to it. See id. at 236.

       In this case, it is possible, based on the allegations, that Haynes had a serious

medical need. He described a hole in his gum and a hole in his tooth after a tooth

extraction that caused pain that interfered with eating and drinking, and a continuous

toothache and severe gum irritation for several months. According to him, the problem

was not fixed until he was transferred to SCI-Somerset and dentists there extracted the

tooth that had been damaged in the extraction and prescribed a course of antibiotics. It is

also possible, taking all inferences in favor of Haynes at this stage, that the Bucks County

dentist was deliberately indifferent to Haynes’s medical need. As the District Court

noted, before January 2009, Haynes had seen the dentist five times (as Haynes stated in

                                               5
the grievance attached to his complaint). However, Haynes alleged that he could not get

care for the continuing problem after January 2009. He stated that his ten requests for

needed medical care from February 2009 through September 2009 were denied with

deliberate indifference.

       It is possible that Haynes will not succeed on his claim in the end. Although his

allegations state a claim, his complaint may ultimately prove to be one of disagreement

with a course of treatment, for which he would not be able to recover. Also, Haynes may

not have exhausted his administrative remedies. He alleged that he did, attaching one

grievance in which he describes an issue relating to his claims and alluding to other staff

requests. In any event, the burden would be on the defendant(s) to plead failure to

exhaust, and, if the affirmative defense were pleaded, the District Court would have to

determine the sufficiency of the exhaustion against the policy of the Bucks County

Correctional Facility (information about which is not currently before us). See Jones v.

Bock, 549 U.S. 199, 217-19 (2007).

       At this stage, however, the District Court should have permitted Haynes leave to

amend because amendment does not appear to be futile (and no other factors counseling

against amendment are present). Accordingly, we will vacate the challenged order and

remand this matter for further proceedings consistent with this opinion. See L.A.R. 27.4;

I.O.P. 10.6. On remand, a new summons should issue, with service of the summons and

the complaint and its amendment to be made upon the defendant Crielly or Crillcey on

the same terms as set forth in the District Court’s order of December 9, 2009. As noted

above, we grant Haynes’s motion to dismiss Moore from this appeal, and consider

                                             6
waived any challenge to the order dismissing Moore from the suit.




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