BLD-187 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4686

___________

ONOFRIO POSITANO,

Appellant

v.

PENNSYLVANIA CARDIOTHORACIC SURGERY, INC.; 

MICHAEL D. HAROSTOCK, M.D. INDIVIDUALLY, ET AL.; 

WILKES-BARRE GENERAL HOSPITAL, INDIVIDUALLY, ET AL.

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-13-cv-01521)

District Judge: Honorable Sylvia H. Rambo

____________________________________

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

on April 30, 2015

Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Filed May 11, 2015)

_________

OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Onofrio Positano appeals pro se from the judgment entered against him in a civil 

rights action. For the following reasons, we will summarily affirm. 

I.

Positano is an inmate currently incarcerated at the State Correctional Facility at 

Mahanoy. In May 2013, he brought this action in District Court against the defendants, 

Wilkes-Barre General Hospital (WGBH), Pennsylvania Cardiothoracic Surgery, Inc. 

(PCS), and Dr. Michael Harstock, a PCS employee. Positano claimed that the defendants 

were deliberately indifferent to his medical needs concerning his quadruple bypass 

surgery, which Harstock performed at WGBH in June 2011. Positano’s amended 

complaint raised both Eighth Amendment and state-law claims. Specifically, he claimed 

that substandard treatment and aftercare by Harstock resulted in complications and

necessitated a second surgery to repair Positano’s sternum. Additional surgery, he 

alleged, will be required to relieve his ongoing pain and other symptoms. He further 

claimed that he was not seen by Harstock for three or four months after he complained to 

a prison doctor on October 5, 2011, about severe chest pain and physical deformity 

around the surgical site.

In March 2014, the defendants filed motions to dismiss the amended complaint on 

several grounds, including Fed. R. Civ. P. 12(b)(6). On December 2, 2014, the District 

dismissed Positano’s constitutional claims under Rule 12(b)(6) and declined to exercise 
3

supplemental jurisdiction over Positano’s state-law claims.1 Positano timely appealed. 

He also filed an “argument in support of appeal” and requested counsel.

II.

 We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District 

Court’s rulings is plenary except for the dismissal of the state-law claims, which we 

review for abuse of discretion. Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 

1990). Dismissal under Rule 12(b)(6) is appropriate where the pleader has not alleged 

“sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We may summarily affirm if the appeal 

does not present a substantial question. Murray v. Bledsoe, 650 F.3d 246, 247 (3d 

Cir.2011) (per curiam).

III.

To state a viable Eighth Amendment claim, Positano needed to allege facts 

plausibly suggesting that the defendants were deliberately indifferent to a serious medical 

need. See Estelle v. Gamble, 429 U.S. 97, 103-05 (1976).2 “To act with deliberate 

 

1 Positano had filed civil medical malpractice actions, based on essentially identical 

claims, in state court prior to bringing this action in the District Court. The District Court 

noted, however, that Positano terminated his state court claims before the District Court 

issued its opinion.

2

In their motions to dismiss, the defendants argued that Positano’s claim could not 

survive both because he failed to state an Eighth Amendment claim and because they are 

not state actors. Although the District Court did not rely on the latter ground for its 

decision, Positano argues on appeal that it improperly considered an affidavit by 

WGBH’s Director of Patient Safety Services which was attached to WGBH’s motion to 
4

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). In order to be liable 

for deliberate indifference, a defendant “must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he must also 

draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A plaintiff may 

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

delay[ed] access to medical care.” Estelle, 429 U.S. 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 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).

Here, Positano has not alleged any facts to support a finding that the defendants 

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

 

dismiss. Courts may consider “undisputedly authentic document[s] that a defendant 

attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the 

attached document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 

1192, 1196 (3d Cir. 1993). Here, the affidavit expressly denied a contractual relationship 

between the prison and WGBH, an essential element of demonstrating § 1983 liability. 

The District Court was therefore correct to consider the document. In any event, the 

District Court’s opinion explicitly stated that it did not rely on whether the defendants 

were state actors due in part to Positano’s claim that he possessed copies of contracts 

between the defendants and the prison. Positano did not submit the contracts to the 

District Court, but he stated that he would supply them in camera if required. Given the 

possible dispute over whether the defendants have a contractual relationship with the 
5

receiving treatment. See Farmer, 511 U.S. at 835. Positano has not claimed that 

Harstock, PCS, or WGBH were involved in the events of October 5, 2011, or that they 

knew he was experiencing pain at that time. See Farmer, 511 at 837. Instead, Positano’s 

own complaint suggested that Harstock first learned of Positano’s condition during the

follow-up exam. After that exam, Harstock scheduled another appointment in six 

months, while instructing Positano to alert him if the pain worsened in the meantime. 

After the second appointment, Harstock performed another surgery to repair Positano’s 

sternum. At no point did Positano allege that his pain increased in between his first and 

second appointments or that he made any requests for interim treatment. In fact, Positano 

stated that he remained under Harstock’s care for his continuing pain and would likely 

undergo a third surgery to relieve his symptoms. Given all this, we agree with the 

District Court that Positano did not plausibly allege that any of the named defendants 

intentionally delayed or denied his medical care. See Estelle, 429 U.S. at 104-05. 

Furthermore, we note, malpractice does not establish deliberate indifference for 

Eighth Amendment purposes. See id., 429 U.S. at 104-06. Positano’s own pleadings 

indicated that Harstock provided him with a level of medical care sufficient to defeat an 

Eighth Amendment claim. See United States ex rel. Walker, 599 F.2d at 575 n.2. 

Because he repeatedly challenges the quality of care that he received, Positano’s claims

sound instead in negligence or malpractice. See Rouse v. Plantier, 182 F.3d 192, 197 (3d 

 

prison, the District Court decided the action – as we do – based on Positano’s failure to 

state a claim under Fed. R. Civ. P. 12(b)(6). 
6

Cir. 1999). “[M]ere 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, we agree with the District 

Court that Positano did not state a viable Eighth Amendment claim.

3

IV.

For the reasons given, we will summarily affirm the judgment of the District 

Court. 4 Positano’s motion for the appointment of counsel is denied.

 

3 Regarding Positano’s state-law tort claims, we note that, absent extraordinary 

circumstances, “[t]he district courts may decline to exercise supplemental jurisdiction 

over a [state law] claim . . . if the district court has dismissed all claims over which it has 

original jurisdiction.” 28 U.S.C. § 1367(c); see also Shaffer v. Bd. of Sch. Dirs. of Albert 

Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984). As Positano has not claimed 

any exceptional circumstances warranting supplemental jurisdiction, we conclude that the 

District Court did not abuse its discretion in dismissing these claims.

4

In response to Positano’s request, the District Court gave him an opportunity to amend

his original complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 

2002). The amended complaint did not correct the deficiencies identified by the District 

Court. In these circumstances, we conclude that the District Court need not have 

extended further leave to amend. See Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir. 

2005).