BLD-283                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 13-1580
                                 ___________

                              KENNETH BAKER,
                                        Appellant

                                       v.

                 DEBRA YOUNKIN, Health Care Administrator;
                   DR. MUHAMMAD NAJI, SCI Houtzdale
                  ____________________________________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                        (D.C. Civil No. 3-12-cv-00139)
                Magistrate Judge: Honorable Cynthia Reed Eddy
                 ____________________________________

      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
                                 June 13, 2013
     Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                          (Opinion filed: July 3, 2013)
                                  _________

                                   OPINION
                                   _________

PER CURIAM
       Appellant Kenneth Baker appeals pro se from the District Court‟s order granting

Appellees‟ respective motions to dismiss his civil rights complaint. Because the appeal

presents no substantial question, we will summarily affirm the Magistrate Judge‟s order.

                                             I.

       In July 2012, Appellant Kenneth Baker, a prisoner at SCI-Houtzdale, filed a pro se

civil rights complaint in the U.S. District Court for the Western District of Pennsylvania

against Debra Younkin, a health care administrator at SCI-Houtzdale, and Dr.

Muhammad Naji, the medical doctor who treated Baker at SCI-Houtzdale. Baker suffers

from sleep apnea, and entered SCI-Houtzdale with his personal bi-pap machine, which

subsequently began to malfunction. In May 2012, Baker reported the problem to the

Appellees, and, due to the inability to repair his bi-pap machine, was provided a new

machine on June 7, 2012, which, unlike the original machine, did not possess a

humidifier. Baker informed the Appellees of the difference, and insisted that he needed a

bi-pap machine with a humidifier to treat his sleep apnea. Baker‟s request was denied,

and Baker submitted a grievance, which was also denied. In his complaint, Baker

asserted that the Appellees were liable pursuant to the Civil Rights Act, 42 U.S.C. §

1983, for violating the Eighth Amendment‟s prohibition against cruel and unusual

punishment by their refusal to provide him with a bi-pap machine with a humidifier.

       Both Younkin and Naji filed separate motions to dismiss for failure to state a

claim, to which Baker filed responses in opposition which contained additional factual

assertions, and also filed amendments to his complaint which demanded monetary
                                             2
damages against the respective Appellees. On February 28, 2013, the Magistrate Judge

entered a memorandum and order granting the Appellees‟ respective motions to dismiss,1

noting that Baker, at a minimum, failed to establish that the Appellees were deliberately

indifferent to a serious medical need and, as a result, Baker‟s allegations failed to state a

claim upon which relief could be granted. Baker timely appealed to this Court, and has

sought the appointment of counsel.

                                               II.

       We have appellate jurisdiction under 28 U.S.C. § 1291, and we exercise plenary

review of a district court‟s order granting a motion to dismiss. Fowler v. UPMC

Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). Pleadings and other submissions by pro se

litigants are subject to liberal construction, and we are required to accept the truth of

Baker‟s well-pleaded factual allegations while drawing reasonable inferences in his

favor. See Higgs v. Att‟y Gen., 655 F.3d 333, 339 (3d Cir. 2011); Capogrosso v. Sup. Ct.

of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam).2 However, a pro se complaint

must still “contain sufficient factual matter, accepted as true, to „state a claim to relief

that is plausible on its face.”‟ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may summarily affirm a


1
  The parties consented to jurisdiction by the Magistrate Judge.
2
  It is unclear whether the Magistrate Judge considered the additional factual assertions
Baker included in his responses to the motions to dismiss. As Baker is a prisoner
appearing pro se, we will treat the factual allegations contained in Baker‟s responses as
though they were included in the amendments to his complaint. See Lewis v. Att‟y Gen.
of U.S., 878 F.2d 714, 722 (3d Cir. 1989).
                                               3
judgment of the District Court on any basis supported by the record if the appeal does not

raise a substantial question. See I.O.P. 10.6; see also Murray v. Bledsoe, 650 F.3d 246,

247 (3d Cir. 2011) (per curiam).

                                            III.

       The Magistrate Judge correctly granted Appellees‟ motions to dismiss Baker‟s

complaint for failure to state a claim. As noted by the Magistrate Judge, in the context of

Eighth Amendment claims based on medical care, a plaintiff must demonstrate deliberate

indifference to a serious medical need. 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).

For instance, a plaintiff may make this showing by establishing that the defendants

“intentionally den[ied] or delay[ed] medical care.” Id. (quotation marks omitted).

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 constitutionalize claims which sound in state tort law.” United

States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal

quotation marks omitted).

       Baker‟s Eighth Amendment claim is premised upon the Appellees being

deliberately indifferent to his alleged need for a bi-pap machine with a humidifier.3 In


3
 A serious medical need is one that a physician has diagnosed as requiring treatment or
one that is so obvious that a lay person would recognize the need for medical treatment.
                                             4
Baker‟s responses to the Appellees‟ respective motions to dismiss, Baker alleged that

both Appellees ignored his requests for a bi-pap machine with a humidifier, and alleged

that he has suffered as a result. However, aside from conclusory statements asserting

deliberate indifference to his medical needs, it is clear from Baker‟s allegations that

Younkin did admit Baker to the infirmary in order to receive treatment and ensured that

his later request for a new bi-pap machine was handled by SCI-Houtzdale‟s medical

personnel. Regarding Naji, Baker‟s allegations make clear that not only did Naji initially

replace Baker‟s bi-pap machine when it was determined that it could not be repaired, but

he further evaluated Baker‟s claim that a humidifier was needed and determined that this

was not the case and that the newly issued bi-pap machine was appropriate to treat

Baker‟s sleep apnea. As is clear from Baker‟s own allegations, Appellees did not ignore

Baker‟s medical condition but rather sought to treat him, and Baker‟s disagreement with

Naji‟s medical assessment does not establish an Eighth Amendment violation.

       As Baker‟s complaint does not contain sufficient factual matter to state a claim,

the Magistrate Judge correctly granted Appellees‟ motions to dismiss the complaint.

Because this appeal presents us with no substantial question, we will summarily affirm

the Magistrate Judge‟s order. See 3rd Cir. LAR 27.4 and I.O.P. 10.6. Baker‟s motion for




Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987). As Baker has failed to establish that the Appellees acted with deliberate
indifference, we assume without deciding that Baker‟s sleep apnea constitutes a serious
medical need.
                                              5
appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir.

1993).




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