DLD-275                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 11-2801
                                  ___________

                              JOSEPH ARUANNO,
                                         Appellant

                                        v.

                  OFFICER JEFF SMITH; NURSE MORGAN;
                    SGT. FRANKS; DR. MERRILL MAIN;
                  DR. VIVIAN SNAIDMAN; DR. GABRIEL;
                    MS. CINDY SWEENEY, Administrator;
                  MS. JENNIFER VELEZ, DHS Commissioner;
                 MR. GEORGE HAYMAN, DOC Commissioner;
               UNIVERSITY OF MEDICAL AND DENTAL OF NJ;
                          JOHN/JANE DOES #1-10
                  ____________________________________

                  On Appeal from the United States District Court
                           for the District of New Jersey
                           (D.C. Civil No. 09-cv-01070)
                    District Judge: Honorable Jose L. Linares
                   ____________________________________

                     Submitted for Possible Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                August 25, 2011

          Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.

                           (Filed: September 21, 2011)
                                    _________

                                    OPINION
                                    _________

PER CURIAM
       Joseph Aruanno appeals an order of the United States District Court for the

District of New Jersey dismissing his amended complaint under 28 U.S.C.

§ 1915(e)(2)(B). We will affirm the District Court’s judgment.

                                              I.

       Aruanno, who is civilly confined at the Special Treatment Unit (“STU”) in

Kearny, New Jersey pursuant to the New Jersey Sexually Violent Predators Act (SVPA),

filed a pro se complaint against various employees of the New Jersey Department of

Human Services (“DHS”) and the New Jersey Department of Corrections (“DOC”), as

well as University Medical and Dental of New Jersey and several John and Jane Doe

Defendants. Aruanno also filed a motion for leave to proceed in forma pauperis (“IFP”).

       By order entered July 18, 2010, the District Court granted the IFP motion but

dismissed the complaint under section 1915(e)(2)(B), concluding that Aruanno failed to

state a claim upon which relief could be granted. The District Court afforded Aruanno

the opportunity to file an amended complaint to address the deficiencies in the original

complaint that the District Court noted in its decision. Aruanno filed an amended

complaint alleging, inter alia, that the Defendants were deliberately indifferent to his

serious medical needs. Concluding that Aruanno had not cured the deficiencies in his

original complaint, the District Court dismissed the amended complaint under section

1915(e)(2)(B). This appeal followed.




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                                             II.

        We have jurisdiction under 22 U.S.C. § 1291. Our review of a District Court’s sua

sponte dismissal of a complaint for failure to state a claim is plenary, requiring us to draw

all reasonable inferences therefrom in the plaintiff’s favor. Allah v. Seiverling, 229 F.3d

220, 223 (3d Cir. 2000). On review, we will summarily affirm the District Court’s

judgment because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P.

10.6.

        An inmate making an Eighth Amendment claim on the basis of the denial of

medical treatment must show “(1) that the defendants were deliberately indifferent to [his

or her] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

        Aruanno alleges that on one occasion, DOC Defendants Morgan and Smith

refused to provide him with the precise medication that he requested to treat a throat

irritation. Aruanno claims that their actions demonstrate a deliberate indifference to his

serious medical condition. However, the decision not to give Aruanno his preferred

choice of medication is not an adequate basis for establishing an Eighth Amendment

violation. See Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326,

346 (3d Cir. 1987). Accordingly, the claims against Defendants Morgan and Smith were

properly dismissed.

        Aruanno also alleges that DOC Defendant Cindy Sweeney violated his Eighth

Amendment rights by disregarding the health risk posed by his exposure to second-hand

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smoke at the STU. As the District Court noted, this precise allegation against Defendant

Sweeney is the subject of a second amended complaint in Aruanno v. Green, No. 09-

1542 (D.N.J. filed Apr. 2, 2009), which remains pending in the District Court. Thus,

because the claim is duplicative of a claim raised in another pending action, the District

Court was correct to dismiss it. See Complaint of Bankers Trust Co. v. Chatterjee, 636

F.2d 37, 40 (3d Cir. 1980).1

       The District Court also correctly dismissed Dr. Vivian Snaidman from the action.

Aruanno claims that Defendant Snaidman violated his constitutional rights by testifying

falsely at his civil commitment hearing. As the District Court explained, Defendant

Snaidman is immune from liability under section 1983 since, as a witness who provided

testimony at Aruanno’s civil commitment hearing, she is cloaked with absolute immunity

from liability. See McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992).

       With regard to the remaining named defendants, Aruanno failed to state a claim

for relief against them because he does not allege that they were personally involved in

any of the harm that he allegedly suffered. Rode, 845 F.2d at 1207. Thus, they were

properly dismissed from the action.

       1
         Likewise, Aruanno’s claim that his civil rights were violated when he was
assaulted in his cell in September 2009 duplicates a claim raised in a separate complaint
that he filed in the District Court. See Aruanno v. Caldwell, No. 09-5652 (D.N.J. filed
Nov. 5, 2009). That case remains pending. Moreover, Aruanno does not allege that any
of the defendants named in the instant complaint were personally involved in that
incident. Thus, he fails to state a claim for relief against them. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (holding liability under § 1983 may not
be based on a theory of respondeat superior).


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      As this appeal does not raise a substantial question, we will affirm the judgment of

the District Court. See Third Cir. LAR 27.4; I.O.P. 10.6.




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