                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2007

Ascenzi v. Diaz
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2289




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Recommended Citation
"Ascenzi v. Diaz" (2007). 2007 Decisions. Paper 458.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/458


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ALD-357                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 07-2289
                                  ________________

                                MICHAEL J. ASCENZI,
                                             Appellant

                                           v.

                         DOCTOR R. DIAZ; J. MATALONI;
                             DR. GUNNAR KOSEK

                       ___________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 05-cv-01656)
                     District Judge: Honorable Thomas I. Vanaskie
                      ___________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   August 23, 2007

       BEFORE: SLOVITER, CHAGARES and COWEN, CIRCUIT JUDGES.

                               (Filed: September 7, 2007)
                                  _________________

                                      OPINION
                                  _________________


PER CURIAM

      Appellant Michael Ascenzi, currently an inmate at the Retreat State Correctional

Institution (“SCI-Retreat”) in Hunlock Creek, Pennsylvania, filed an in forma pauperis

civil rights complaint against Dr. Gunnar Kosek, a physician at the Luzerne County
Prison, Dr. Renato Diaz, a contract physician at SCI-Retreat, and Joseph P. Mataloni,

SCI-Retreat’s Health Care Administrator. Ascenzi alleged that, while he was

incarcerated at the Luzerne County Prison and SCI-Retreat, defendants were deliberately

indifferent to his medical needs, in particular, his need for narcotic pain relievers and

corrective surgery for two herniated cervical discs. Ascenzi also asserted that, on two

separate occasions, defendants were deliberately indifferent to his skin infections.

Ascenzi sought medical attention in the form of an orthopaedic consultation and surgery

for his neck, as well as compensatory and punitive damages.

       In an order entered on March 30, 2007, the District Court granted defendants’

motions to dismiss for failure to state a claim upon which relief may be granted. The

court reasoned that the action could not proceed because Ascenzi’s allegations of

inadequate care did not rise to the level of deliberate indifference, see Farmer v. Brennan,

511 U.S. 825, 842 (1994), and because defendant Mataloni was aware that Ascenzi was

being treated by the institution’s physician for various ailments. Mataloni could not be

found deliberately indifferent under the Eighth Amendment simply because he deferred to

the medical judgment of Ascenzi’s treating physician. See Durmer v. O’Carroll, 991 F.2d

64, 69 (3d Cir. 1993). Ascenzi appeals and has been granted leave to proceed in forma

pauperis on appeal.

       Deliberate indifference to serious medical needs is a violation of the Eighth

Amendment and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97

(1976). However, mere disagreements over the type or amount of care provided do not

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state an Eighth Amendment claim. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).

See also United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir.

1979) (“Where a prisoner has received some medical attention and the dispute is over the

adequacy of the treatment, federal courts are generally reluctant to second guess medical

judgments and to constitutionalize claims which sound in state tort law.”). Ascenzi’s

complaints were evaluated by the medical staff, and he received treatment in the form of

medications (including pain medications and antibiotics) and diagnostic x-rays. The

circumstances alleged do not amount to deliberate indifference to serious medical needs.

We further agree with the District Court that granting Ascenzi leave to amend the

complaint a second time would have been a futile act. See Grayson v. Mayview State

Hospital, 293 F.3d 103, 108 (3d Cir. 2002).

      Accordingly, we will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i) as it is

lacking in legal merit. Neitzke v. Williams, 490 U.S. 319 (1989).




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