BLD

- 187 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 4

- 4686

___________ ONOFRIO POSITANO ,

Appellant

v. PENNSYLVANI A CARDIOTHORACIC SURGERY, INC.; MICHAEL D. HAROST OCK, M.D. INDIVIDUALLY, ET AL.; WILK ES

- 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

( F iled May 11, 2015 )

_________ OPINION *

_________ PER CURIAM

* This disposition is not an opinion of the full C ourt a nd 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 t he State Cor rectional Facility at Mahanoy. In May 2013 , h e 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 . Posi tano 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 rais ed both Eighth Am endment and state

- law claims . Sp ecifically, he claimed
that substandard trea tment and aftercare by Harstock result ed in complications and necessitated a second surgery to repair Positano’s sternum . A dditional surgery , he alleged, will be required to relieve his ongoing pain and other sy mptoms. 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 c hest pain and physical deformity around the surgical site.
In March 2014 , the defendants filed m otions to dismiss the amended complaint on several grounds, including Fed. R. Civ. P. 12(b)(6). On December 2, 2014, t he District
dismissed Positano’s constitutional claims under Rule 12(b)(6) and declined to exercise3

supplemental jur isdiction over Posita no’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 d ismissal of the state

- law claim s , 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 , h owever, that Positano ter minated 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 an d because the y 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 W GBH’s motion to4

indiffer ence 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
i nference 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 medica l judgments and
to constitutionalize claims w hich 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 suppo rt 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. In dus., 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 th e 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 the5

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 sched uled 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 d id Positano allege that his pain increased in between his first and second appointments or that he made any requests for interim treatment

. In fact, Po sitano
stated that he remained under Harstock’s care for his continuing pain and w ould 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 not e , malpractice d oes not establish deliberate indifference for Eighth Amendment purposes

. See id. , 429 U.S. at 104

- 06. Positano’s own pleadings
indicate d that Harstock provided him with a level of medical care sufficient to defeat an Eighth Amendment claim

. See United S tates 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 actio n

– 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 d id 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 jurisd iction 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 ex tended further leave to amend. See Hill v. City of Scranton , 411 F. 3d 118, 134 (3d Cir. 2005).