                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1091
                                      ___________

                                  ANGEL OLIVARES,
                                                Appellant
                                         v.

    UNITED STATES OF AMERICA; DR. PRADIP M. PATEL, in his individual and
 official capacities as Clinical Director of the Federal Correctional Institution (FCI, Fort
Dix); DR. S. SULAYMAN, in his individual and official capacities as Medical Physician
 at FCI, Fort Dix; MR. C. IWUAGWU, in his individual and official capacities as Health
Services Administrator at FCI, Fort Dix; MS. YVONNE PHILLIPS, in her individual and
  official capacities as Bureau and official capacities as Bureau of Prisons Chief Medical
                                         Designator
                         ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                             (D.C. Civil No. 1-07-cv-03476)
                     District Judge: Honorable Jerome B. Simandle
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  August 5, 2011
               Before: SLOVITER, FISHER AND WEIS, Circuit Judges

                             Opinion filed: August 10, 2011
                                       _________

                                        OPINION
                                        _________

PER CURIAM.

              Angel Olivares, proceeding pro se and in forma pauperis, appeals from an
                                             1
order granting summary judgment in favor of the defendants. For the following reasons,

we will affirm.

                                              I.

              As we write for the benefit of the parties, who are familiar with the factual

context of this case, we will recite only those facts that are relevant to our analysis.

Olivares filed his lawsuit on July 27, 2007, claiming that various employees of the

Bureau of Prisons (―BOP‖) violated his constitutional rights and injured him through

their negligence while he was a federal prisoner and pre-trial detainee. Olivares, who

suffers from a medical condition called osteogenesis imperfecta,1 injured his knee while

incarcerated at the Metropolitan Detention Center in Brooklyn, New York. He charged

that, following his post-conviction transfer to the Federal Correctional Institution at Fort

Dix, New Jersey (―FCI Fort Dix‖), the individual defendants—the former clinical

director at FCI Fort Dix, a medical doctor at the facility, the former health services

administrator, and the Chief of the BOP‘s Office of Medical Designations and

Transportation—―engaged in conduct . . . [that was] intentional, grossly negligent,

deliberately indifferent, and indicated active malice toward [his] constitutional and

common law rights.‖ Compl. ¶ 19. Olivares alleged that he should never have been sent

to FCI Fort Dix in the first place, as he was assigned a BOP care level of ―4,‖ indicating

that his chronic condition could not be adequately treated at the facility. And during his




                                               2
stay, he maintained, his fears were realized: he was denied a specialized knee brace after

one had been recommended by a consulting orthopedist, he was denied a walker, and he

was denied necessary surgery, while prison officials refused to transfer him to a medical

facility capable of treating him. Olivares believed this inadequate treatment to be the

direct cause of his November 16, 2005, fall in the prison‘s cafeteria, which further injured

his knee to the point of requiring immediate surgery. He separately accused the

defendants of meddling with his medical treatment out of impermissible budgetary

concerns; for example, he claimed that defendant Iwuagwu delayed his facility transfer

requests ―to stay within his budgetary limitations,‖ resulting in an additional ―seven

months‖ of ―daily constant pain, agony, and unnecessary suffering.‖ Compl. ¶¶ 70, 74.

              The District Court appointed counsel pursuant to 28 U.S.C. § 1915(e)(10).

Following discovery, the defendants moved for summary judgment, which the District

Court granted.2 Olivares v. United States, No. 07-3476, 2010 U.S. Dist. LEXIS 133577,

at *18 (D.N.J. Dec. 16, 2010). Having since been released from confinement, Olivares

timely appealed pro se, and the matter proceeded to briefing. It is now ripe for review.


1
 ―[A] group of connective tissue disorders . . . characterized by bone fragility, fractures
on trivial trauma, skeletal deformity, blue sclerae, ligament laxity, and hearing loss.‖
Stedman‘s Medical Dictionary 1390 (28th ed. 2006).
2
 Through counsel, Olivares opposed summary judgment; however, he did so on narrower
grounds than those advanced in his original complaint, focusing on the defendants‘
decision—―[f]or reasons defendants cannot adequately explain‖—to ―disregard the
orthopedist‘s recommendation‖ that they provide Olivares with special braces for his
knees, a decision that was alleged to have caused his fall in November of 2005.

                                              3
                                            II.

              ―We have jurisdiction pursuant to 28 U.S.C. § 1291 . . . [and we] exercise

plenary review over an order granting summary judgment.‖ Miller v. Am. Airlines, Inc.,

632 F.3d 837, 844 (3d Cir. 2011). ―The moving party is entitled to a judgment as a

matter of law if the non-moving party fails to establish the existence of a genuine issue on

an essential element of her case on which []he has the burden of proof at trial.‖ Radich v.

Goode, 886 F.2d 1391, 1395 (3d Cir. 1989). We ―view all of the facts in the light most

favorable to the non-moving party, who is ‗entitled to every reasonable inference that can

be drawn from the record.‘‖ Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010)

(quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000)). We may

affirm for any reason supported by the record, even those not relied on by the District

Court. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000).

              As recognized by the District Court, Olivares‘ constitutional claims were

cognizable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388, 389 (1971). And although Olivares‘ tort claims invoked state tort law and

federal supplemental jurisdiction, they were properly interpreted as arising under the

Federal Tort Claims Act (FTCA). See 28 U.S.C. § 2679(a)–(b); see also Brumfield v.

Sanders, 232 F.3d 376, 379 (3d Cir. 2000)




                                             4
                                            III.

A) Constitutional Claims

              Olivares claimed that the individual defendants3 showed deliberate

indifference to his serious medical needs, causing him extensive pain and leading to

further medical crises. See, e.g., Compl. ¶¶ 1, 90(b), 92. He also characterized the denial

of specific medical relief as evidence of ―outrageous, intentional, wanton and malicious

conduct.‖ Compl. ¶ 91.

              To prevail on his Eighth Amendment claims,4 Olivares was required to

show that the defendants exhibited deliberate indifference to his serious medical needs.

Estelle v. Gamble, 429 U.S. 97, 104 (1976). This test has both objective and subjective

elements; with regard to the latter, it requires a showing that the defendant official knew

of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511

U.S. 825, 837 (1994). The subjective element distinguishes constitutional claims from

those sounding in negligence and medical malpractice, which ―without some more


3
 Olivares‘ constitutional claims against the individual defendants in their official
capacities cannot succeed under principles of sovereign immunity. See Will v. Mich.
Dep‘t of State Police, 491 U.S. 58, 71 (1989); Baraka v. McGreevey, 481 F.3d 187, 210
(3d Cir. 2007).
4
  As defendants Patel, Sulayman, and Iwuagwu worked at FCI Fort Dix, we will construe
Olivares‘ medical claims as attacking conduct dating from after his conviction, and will
hence employ an Eighth Amendment analysis. See Hubbard v. Taylor, 399 F.3d 150,
164 (3d Cir. 2005). To the extent that some of Olivares‘ claims against defendant
Phillips could be interpreted as addressing incidents occurring before his conviction, we
find no violation of Olivares‘ due-process rights dating from this period. See id. at 164–
65.
                                             5
culpable state of mind[] do not constitute ‗deliberate indifference.‘‖ Rouse v. Plantier,

182 F.3d 192, 197 (3d Cir. 1999).

                We turn first to whether Olivares exhausted his administrative remedies as

required by the Prison Litigation Reform Act (PLRA). Under the PLRA, ―[n]o action

shall be brought with respect to prison conditions . . . by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available

are exhausted.‖ 42 U.S.C. § 1997e(a). The defendants have argued that the one

administrative grievance that Olivares fully exhausted cannot be fairly construed as

alerting the prison to the wide range of constitutional violations he now presents.

                It is uncontested that Olivares satisfied the exhaustion requirements for the

grievance he filed on September 15, 2005. In that complaint, he wrote of his 23-month-

long quest to ―obtain the proper medical attention for an injury that [he] sustained while

under the custody of the BOP,‖ emphasizing that he had ―seen [an] orthopedic specialist

twice, [who had] recommended for me to be transferred to a medical referral center,

where my condition and knee problem can be accurately addressed.‖ Continuing, he

wrote:

         So today, I am respectfully requesting a furlough transfer, so that I may
         obtain the necessary medical attention that I have been trying to receive for
         the past 23 months. Please be advised that due to the delay in repairing my
         left knee, today I am also suffering damage to my right knee. I believe the
         longer the delay the more injury would be caused to both legs, and perhaps
         I‘ll even end up crippled. I have exhausted all administrative remedies on
         such issue, have been promised treatment, but still have not received [any];
         prolonging such surgery would be considered cruel and unusual
         punishment and even deliberate indifference on behalf of the Bureau of
                                               6
       Prisons. . . . I believe that I meet all of the criteria to meet such furlough
       transfer to another facility that can handle the condition that I‘m presently
       suffering.

Throughout his appeals of this grievance, Olivares continued to focus on his desire

for a medical furlough for the purpose of obtaining surgery.

              We agree with the District Court that this grievance did not fairly put the

BOP and its employees on notice of the knee-brace issue. The PLRA‘s exhaustion

requirement was intended to allow ―corrections officials time and opportunity to address

complaints internally before allowing the initiation of a federal case,‖ as internal prison

remedies might succeed in ―satisfy[ing] the inmate, thereby obviating the need for

litigation.‖ Porter v. Nussle, 534 U.S. 516, 525 (2002). While Olivares‘ grievance did

indeed serve to ―notify the prison of a problem,‖ see Griffin v. Arpaio, 557 F.3d 1117,

1120 (9th Cir. 2009), it isolated the concerns expressed to those involving surgery and

possible relocation. As to the brace, this was insufficient. When determining whether a

prisoner put prison officials on notice of a particular problem, we look to the extent of the

prisoner‘s compliance with the prison‘s grievance procedures. Jones v. Bock, 549 U.S.

199, 218 (2007) (―[I]t is the prison‘s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.‖); see also Riccardo v. Rausch, 375 F.3d 521, 524 (7th

Cir. 2004) (en banc). Here, notably, those procedures directed ―a reasonable number of

closely related issues‖ to be placed on a single form. 28 C.F.R. § 542.14(c)(2). The BOP

expects ―unrelated‖ issues to be grieved separately. Id. One way or another, then,

Olivares was expected to place his unresolved medical complaints about knee-bracing
                                              7
before prison officials. He did not do so.5 Therefore, we find that Olivares failed to

comply with the BOP grievance process on the topic of bracing. For that reason, the

issue is both unexhausted and procedurally defaulted. See Spruill v. Gillis, 372 F.3d 218,

222 (3d Cir. 2004).

              As to the exhausted claims, we find no genuine issue of material fact

pertaining to deliberate indifference. The record shows that Olivares was provided with

constant medical treatment. That he disagreed with some of the particulars of that

treatment does not, by itself, suggest the requisite mental state for a constitutional

violation.6 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.

1987). Nor, as discussed above, does mere negligence in the preparation and completion

of administrative forms suggest an Eighth Amendment violation. To the extent that

Olivares‘ incorrect classification formed the basis for relief, the defendants maintained

that they were unaware that Olivares was ever classified as a ―Level 4‖ inmate, see, e.g.,


5
  More to the point, Olivares‘ failure to bring the matter to the prison‘s attention may
account, in part, for the dearth of solid record evidence addressing why the defendants
did not procure the braces even after the specialist had recommended them.
6
  In his complaint, Olivares accused the defendants of being motivated by budgetary
concerns. He reiterated this allegation in his responses to the defendants‘ interrogatories,
but provided no basis for his knowledge. See Fed. R. Civ. P. 56(c)(4) (―An affidavit or
declaration used to support or oppose a motion must be made on personal knowledge . . .
.‖); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (―The
Rule‘s requirement that affidavits be made on personal knowledge is not satisfied by
assertions made ‗on information and belief.‘‖). Accordingly, the unsupported assertions
are insufficient to imply an impermissible motive. Cf. Durmer v. O‘Carroll, 991 F.2d 64,
68 (3d Cir. 1993) (appropriate to draw adverse inference in failure-to-treat claim when
―some evidence in the record‖ suggested budgetary concerns as a motive for denying
treatment).
                                              8
Patel Decl. ¶ 6, which jibes with the BOP‘s description of Level 4 classification: an

inmate who needs round-the-clock monitoring and care, and who suffers ―severe

impairment of functioning.‖ Olivares points to no evidence suggesting that the

defendants were aware of his BOP classification. Finally, with regard to the

administrative defendants, there is no affirmative showing of any personal involvement in

conduct that could be characterized as unconstitutional. See Argueta v. U.S. I.C.E., ___

F.3d ___, 2011 U.S. App. LEXIS 11983, at *32 (3d Cir. June 14, 2011, No. 10-1479).


B) FTCA

              ―The [FTCA] authorizes private tort actions against the United States

‗under circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred.‘‖

United States v. Olson, 546 U.S. 43, 44 (2005) (citations omitted). The FTCA adopts the

substantive dimensions of the state law the Government is accused of violating. In other

words, ―an action under FTCA exists only if the State in which the alleged misconduct

occurred would permit a cause of action for that misconduct to go forward.‖ Carlson v.

Green, 446 U.S. 14, 23 (1980).

              In New Jersey, allegations of medical malpractice require, with few

exceptions, the submission of an affidavit of merit as a precondition to filing suit. Failure

to so file ―shall be deemed a failure to state a cause of action.‖ N.J. Stat. Ann. § 2A:53A-

27 through 29 (West 2011). Olivares failed to tender the affidavit within the time

                                              9
permitted and did not request an extension. Rather, Olivares argued that his claims fell

into the ―common knowledge‖ exception to the affidavit rule. See Natale v. Camden

Cnty. Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003). We do not agree. Olivares‘

medical problems, and the injuries flowing therefrom, were complex, and the medical

negligence described in his administrative tort claim—failure to provide him with the

brace, a walker, timely surgery, or an expedient transfer to another facility for medical

treatment—is not of the sort that would be easily resolved without expert reference to a

standard of care. To the extent that some of Olivares‘ FTCA complaints could be

construed as alleging plain negligence instead of medical malpractice, we observe that

the record does not support his claims of federal-employee negligence with regard to his

delayed transfer.

                                            IV.

              While we leave undisturbed the judgment of the District Court, we share

some of Olivares‘ disquiet regarding the treatment he received while a prisoner at FCI

Fort Dix. The record suggests that he was repeatedly misclassified; that the bureaucracy

impeded his desire for swift relief from significant discomfort; and that his condition,

while stable, fluctuated greatly over the course of his stay. Nevertheless, for the

procedural and substantive reasons discussed above, and on the record before us, we

cannot say that the defendants violated Olivares‘ constitutional rights, and the record

does not evince a genuine issue of material fact with regard to his exhausted FTCA


                                             10
claims. Accordingly, we will affirm the District Court‘s grant of summary judgment in

favor of the defendants.




                                          11
