DLD-299                                                          NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 14-1282
                                        ___________

                                   DAVID DEJESUS, SR.,
                                               Appellant

                                              v.

                      CORRECTIONAL MEDICAL SERVICES, INC.;
                           WILLIAM JOYCE; DANA BAKER
                        ____________________________________

                       On Appeal from the United States District Court
                                 for the District of Delaware
                              (D.C. Civil No. 1-06-cv-00209)
                        District Judge: Honorable Leonard P. Stark
                        ____________________________________

           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, 2014
                Before: SMITH, HARDIMAN and COWEN, Circuit Judges

                                (Opinion filed: July 30, 2014)
                                         _________

                                         OPINION
                                         _________

PER CURIAM

          Appellant David DeJesus, Sr., appeals the District Court’s grant of summary

judgment in favor of the defendants. For the reasons that follow, we will summarily

affirm.
                                            I.

       In March of 2006, DeJesus initiated this civil rights lawsuit pursuant to 42 U.S.C.

§ 1983, alleging that the defendants were indifferent to his medical needs while he was

incarcerated. He initially lodged his allegations against the prison warden and the

prison’s contracted medical service provider, Correctional Medical Services, Inc.

(“CMS”).

       When DeJesus began his incarceration on October 18, 2005, he had been living

approximately six years with a diagnosis of Hepatitis C. It is undisputed that, while

incarcerated, DeJesus was seen and tested by medical staff with regard to that diagnosis.

DeJesus alleged, however, that he did not get the help he needed and his pain and medical

needs were routinely ignored.1 Journal entries that DeJesus attached to the amended

complaint indicate that he suffered from a range of symptoms and that he was afraid that

he was going to die if doctors did not do more to help him. He submitted multiple

grievances—some of which he directed to the prison warden, who then forwarded them

to medical staff—in which he pleaded for more assistance. DeJesus filed his first


1
  At the time DeJesus initiated this lawsuit, his allegations arose from events occurring
between his admission to the prison, in October of 2005, and the date he filed this lawsuit
in March of 2006. As litigation proceeded, he continued to decline in health and
complain of new incidents of deliberate indifference to his medical needs. DeJesus
incorporated those alleged incidents into his defense of the dispositive motion from
which this appeal arises. Those allegations were part of the factual record considered by
the District Court when that motion was decided and, for that reason, are also included in
the brief factual summary presented here.
                                             2
grievance on October 25, 2005—approximately one week after his admission into

prison—in which he complained of sharp pains and requested to see a doctor. That

particular grievance went unanswered for six months, when it was denied on the grounds

that he had been seen by a doctor in the interim.

       In September of 2006, DeJesus sent a letter to the District Court that the court

construed as a motion for injunctive relief requesting treatment for Hepatitis C and to

preclude a transfer. Shortly thereafter, the District Court appointed counsel for DeJesus.

The District Court ultimately denied the request for injunctive relief and the litigation

progressed.

       Among DeJesus’ physical ailments were spasms of pain in his right side, which he

initially attributed to his liver due to his Hepatitis C diagnosis. Although he received

diagnostic testing, including multiple blood draws and ultrasounds, that pain recurred.

He continued to submit grievances and letters to the warden and District Court, asserting

that doctors were doing nothing to heal him.

       On August 7, 2007, DeJesus submitted a sick call request in which he described

sharp pain in his right side and asked to see a doctor. He was seen by a nurse on August

10, 2007, but was told he could not see a doctor until blood work was performed on

August 13. DeJesus alleged that he was never called for the blood work and that he went

to the infirmary daily to complain of his pain. On September 15, 2007, Dejesus

experienced pain and went to the infirmary, where a nurse took his vitals, gave him

aspirin, and sent him back to his cell. On September 16, 2007, he submitted another sick
                                               3
call request in which he reported that he had been sick the day before, had a lump in his

right side, and was experiencing leg pain. That morning he went to the infirmary to take

prescribed medication and informed a nurse that he was in pain. According to DeJesus,

the nurse told him to submit another sick request and return to his cell. That evening he

once again appeared at the infirmary to take his medication and informed the nurse of his

pain, but he was sent back to his cell. At approximately 1 a.m. the following morning,

DeJesus was in his cell in excruciating pain when other inmates sought help on his

behalf. A correctional guard took DeJesus to the infirmary, but the nurse indicated that

no doctor was on duty and that he could not go to the emergency room without a doctor’s

permission. Thus it was a correctional officer, and not medical staff, who called an

ambulance, which took DeJesus to the hospital. There, it was determined that DeJesus

had inflammation of the gallbladder, indicating the possible presence of gallstones. The

hospital’s doctors performed surgery to remove DeJesus’ gallbladder and his pain was

alleviated. No gallstones were identified.

       In January of 2008, DeJesus began to suffer from a grape-sized growth on his left

testicle as well as numbness and tingling in his leg. At that point, he sought injunctive

relief, alleging that CMS refused to evaluate or provide treatment for the lump and

requesting that it, or an outside provider, be ordered to do so. That motion was

withdrawn following DeJesus’ release from custody on or about July 4, 2008.

       DeJesus’ claims against the warden were dismissed due to his lack of personal

involvement in the treatment. The remaining defendants sought summary judgment. The
                                             4
District Court concluded that DeJesus failed to adduce evidence from which a reasonable

factfinder could find that the defendants were deliberately indifferent to his medical

needs and granted summary judgment in favor of the defendants. DeJesus appealed. The

appellees have now asked us for summary affirmance. For the reasons below, we will

grant the their motion and summarily affirm.

                                             II.

       We have appellate jurisdiction under 28 U.S.C. § 1291. We may summarily

affirm if DeJesus’ appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and

3d Cir. I.O.P. 10.6. Our review of the District Court’s grant of summary judgment is

plenary. See Noel v. Boeing Co., 622 F.3d 266, 270 n.4 (3d Cir. 2010). We view the

underlying facts and all reasonable inferences therefrom in the light most favorable to the

non-moving party, granting summary judgment only where there remains no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. See

Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010).

       In order to bring a viable claim under the Eighth Amendment for denial of medical

care, DeJesus must show that the defendants were deliberately indifferent to his serious

medical need. See Estelle v. Gamble, 429 U.S. 97, 103-05 (1976). A plaintiff may show

deliberate indifference by establishing that the defendants “intentionally den[ied] or

delay[ed] access to medical care.” Id. at 104-05. However, “[w]here 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
                                             5
constitutionalize claims which sound in state tort law.” United States ex rel. Walker v.

Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal quotations and citation

omitted).

                                            III.

       We agree with the District Court that the record does not support a finding of

deliberate indifference. Evidence does show that DeJesus experienced episodic pain

during the course of his incarceration, in addition to bouts of nausea, vomiting, and

general malaise. Nonetheless, the record is replete with evidence that medical staff

continually sought to treat DeJesus’ condition.

       Contrary to DeJesus’ allegations that the defendants ignored his pleas for help for

almost two years, undisputed evidence in the summary judgment record indicated that

DeJesus received ongoing medical diagnoses and care throughout his incarceration, often

being seen several times in one week. In addition to regular sick call evaluations,

DeJesus received multiple ultrasounds, diagnostic blood tests, a sonogram, and x-rays.

He was provided with pain management medication on numerous occasions. And in the

spring of 2007, prior to the gallbladder surgery that took place that September, DeJesus

was enrolled in a therapeutic Hepatitis C intervention program. The program involved

medication protocol that required regular monitoring and evaluation, which the record

indicates DeJesus received. DeJesus’ treating physician opined that the symptoms




                                             6
DeJesus complained about during the course of that treatment, such as flu-like symptoms

and gastrointestinal upset, were common side effects of the therapy program.2

       In defending against summary judgment, DeJesus relied heavily on his own

statements that various nurses—none of whom were named as defendants in this action—

were deliberately indifferent in the weeks leading up to the surgery on his gallbladder.

Yet DeJesus’ notes from the relevant time frame do not connote a sense of urgency.

There are no entries reflecting symptoms between August 13, 2007 and September 15,

2007. On September 15, 2007, he was seen by a nurse and given medication. And

although DeJesus alleged that a nurse initially disregarded his severe pain at 1 a.m. on

September 17, 2007, he was admitted to the hospital that night and ultimately did receive

care. DeJesus has not adduced any evidence to indicate that the twenty-four hour delay

between his sick call request on September 16, 2007, and his gall bladder surgery the

following day exacerbated his health condition.

       We acknowledge that unnecessary delay in medical care that results in gratuitous

pain can give rise to an Eighth Amendment claim. See Estelle, 429 U.S. at 104. But

DeJesus did not set forth any evidence to support a finding that the defendants had cause

to know of any serious medical condition beyond that for which he was already receiving

treatment. See Farmer, 511 U.S. at 835-44. Arguably, DeJesus’ manifest pain on


2
  In the record is an informed consent form that was apparently signed by DeJesus; it
describes the treatment program and these potential symptoms in detail.


                                             7
September 16 and 17 could have alerted the nurses on duty that DeJesus suffered from a

serious medical condition. Those nurses, however, are not parties to this action. The two

named individual defendants were not involved in the events of September 2007. And in

order to establish that CMS itself is directly liable for the alleged constitutional

violations, DeJesus “must provide evidence that there was a relevant [CMS] policy or

custom, and that the policy caused the constitutional violation alleged.” Natale v.

Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (citing Bd. of the

County Comm’rs. of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997)). DeJesus

produced no such evidence.3

       When distilled to their core, DeJesus’ filings sound in negligence or malpractice;

he repeatedly challenges the quality of care that he received. Claims of negligence or

medical malpractice do not constitute deliberate indifference. Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999). Moreover, “mere disagreement as to the proper medical

treatment” is insufficient to state a constitutional violation. Spruill v. Gillis, 372 F.3d

218, 235 (3d Cir. 2004) (internal citations and quotations omitted). For these reasons,




3
   It does appear from the record that DeJesus’ October 25, 2005 grievance was not
resolved in a timely manner. While that delay is worrisome and could conceivably give
rise to an Eighth Amendment claim under other circumstances, it will not support a claim
here. This is because there is no causal nexus between the administrative processing of
DeJesus’ grievance and the alleged deprivation of medical care. According to medical
records, DeJesus received medical care at least twenty-four times during the period in
which his grievance was pending, in addition to receiving physician-ordered diagnostic
tests in the form of blood work, ultrasounds, and an x-ray.
                                               8
we agree with the District Court that the record does not support a finding of deliberate

indifference.

                                            III.

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

defendants’ motion for summary affirmance and summarily affirm the judgment of the

District Court. DeJesus’ motions for the appointment of counsel are denied.




                                             9
