1

BLD

- 189 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 4617

___________ JAMES I. MCCABE ,

Appellant

v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS ; SECRETARY DEPARTMENT OF CORRECTIONS; CORRECTIONS HEALTHCA RE ADMINISTRATOR; BUREAU OF HEALTHCARE SERVICES;

DORINA VARNER; JOHN KERESTES; SCOTT W. MILLER; MARVA CERULLO; ALICE CHIPRIANO; JOHN STEINHART; TONY ANDREUZZI, Nurse Practitioner

____________________________________ On Appeal from the United States Distri ct Court for the Middle District of Pennsylvania (D.C. Civil No. 1:12

- cv - 00293 ) District Judge: Honorable Sylvia H. Rambo

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursua nt to Third Circuit LAR 27.4 and I.O.P. 10.6 April 11, 2013 Before: SCIRICA, HARDIMAN and GREENAWAY, JR. , Circuit Judges

(Opinion filed : May 2, 2013 )

_________2 OPINION

_________ PER CURIAM James McCabe appeals the District Court‟s dismissal of his amended complai nt

. For the following reasons, we will summarily affirm.
I. McCabe, a Pennsylvania state prisoner, filed a civil rights complaint under 42 U.S.C. § 1983 in the District Court for the Middle District of Pennsylvania against the Pennsylvania Department of Corrections, Corrections Health Care Administrator, Bureau of Health Care Services, and several of the prison‟s medical and administrative officials. McCabe alleged that Defendants violated his Eighth Amendment rights by acting with
deliberate indifferen ce to his reducible inguinal hernia , and that the prison‟s policy requiring prisoners to authorize withdrawal of prison funds before receiving non

emergency medical services violated his due process rights

. In separate motions to dismiss, Defendant Iann uzzi 1 and the remaining defendants argued that McCabe‟s amended complaint failed to state a n Eighth Amendment claim

. The District Court agreed , determining that neither McCabe‟s mere dissatisfaction with Defendants‟ course of medical treatment nor Defenda nt Iannuzzi‟s failure to provide continuing treatment for the hernia after McCabe refused to authorize withdrawal of his

1 McCabe‟s amended complaint named Tony Andreuzzi as a defendant. The District court used the defendant‟s correct name, Tony Iannuzzi. We follow su it.3

funds constituted deliberate indifference

. Acting pursuant to its authority under 28 U.S.C. § 1915(e), the District Court also conclud ed that McCabe‟s amended complaint
failed to sta te a viable due process claim. McCabe timely appealed.
II. We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over the District Court‟s sua sponte dismissal , s ee Allah v. Seiverlin g , 229 F.3d 220, 223 (3d Cir. 2000) , and its grant of Defendants‟ motions to dismiss , see Gelman v. State Farm
Mut. Auto. Ins. Co. , 583 F.3d 187, 190 (3d Cir. 2009). To survive dismissal, a plaintiff‟s complaint must “contain sufficient factual matter, ac cepted 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)). A. Eighth Amendment Claim s McCabe‟s Eighth Amendment claim s are p remised on the medical attention he
received after d iscovering his her nia. In his view, Defendants exhibited deliberate indifference when they prescribed a conservative course of treatment

— including “medical restrictions” and medication

— rather than immedi ate surgery. According to McCabe‟s amended complaint, D efendants explained to him that surgery was indicated only in certain situations, including when a hernia becomes strangulated or causes exceptional pain. Mere disagreement between prison doctors and a prisoner about the proper course of treatment does not evince the deliberate indifference necessary for an4

Eighth Amendment violation , however

. S ee Monmouth Cnty. Corr. Inst. Inmat es v. Lanzaro , 834 F.2d 326, 347 (1987); see also Inmates of Allegheny C nty. Jail v. Pierce , 612 F.2 d 754, 762 (3d Cir. 1979) (noting that courts generally will not gainsay the professional ju dgment of medical practitioners). Tellingly, McCabe did not allege any
facts suggest ing that Defendants‟ refusal of surgery was a resul t of anything but medical judgment. Accordingly, as the District Court concluded, McCabe‟s allegations did not support an Eighth Amendment claim. McCabe also alleged that Defendant Iannuzzi was deliberately indifferent to his medical needs when, several months after his diagnosis and in the course of continuing,

non - emergency treatment of the hernia, Defendant Iannuzzi demanded that he sign a cash slip authorizing withdrawal of his prison funds in order to refill his prescription.
Defendant Iannuzzi ‟s e nforcement of this prison policy does not state a viable cl aim for
deliberate indifference. P risoners are simply not guaranteed the right to be entirely free
from the cost

- consid erations that figure in medical care decisions. See Reynolds v. Wagner , 128 F.3d 166, 175, 177

- 78 (3d Cir. 1997).
In Reynolds , as here, the prison charged inmates a modest fee for certain types of
medical care, excluding , among other things, e mergency services

. Id. at 170

- 71. We
found t he policy constitutional because, under it, no inmate could be denied “essential” or “needed” medical treatment, regardless of his refusal or inability to pay the fee

. Id. at 174

- 75 ( citing Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro , 834 F.2d 326, 3475

(1987) ). Here, McCabe was not denied es sential or needed medical treatment for failure to sign the cash slip. Rather, he was denied further non - emergen cy medication because
of his refusal to sign the cash sli p. Nor did he indicate an inability to afford the fee ; he simply refused to pay becau se he believed the hernia to be chronic or life

- threatening

. See Doc

. 23, Ex. O (“ A n inmate will not be denied access to medical services because of
an in ability to pay the required fee

. ” ) ; see also Lanzaro , 834 F.2d at 347. Therefore,
because Reynolds i s controlling, the District Court properly determined that McCabe‟s amended complaint did not state an Eighth Amendment claim

. B

. Due Process Claim The District Court also considered whether the policy requiring McCabe to sign a cash slip violated his due process rights

. A p risoner has a property interest in his prison

account , of course, entitling hi m to due process before the deprivation of any funds

. S ee id. at 179. There is no d ue process violation, however, if a prisoner is given prior notice
of a policy like the one here and access to meaningful post

- deprivation procedures. S ee Tillman v. Lebanon Corr. Facility , 221 F.3d 410, 421 (3d Cir. 2000)

. Here, it i s clear from the amended complaint that McCabe knew of the policy prior to any deprivatio n of
his account funds ; indeed, he alleged that Defendant Iannuz z i explained the policy to him. Moreover, there is no allegation that the state fails to provide meaningful post

deprivation remedies for erroneous withdrawals of funds. Thus, the District C ourt correctly concluded that McCabe‟s amended complaint did not state a due process claim

.6

For the reasons given, the District Court properly dismissed McCabe‟s amended complaint. 2 Accordingly, we will summarily affirm the judgment of the District Court

. Murray v. Bledsoe , 650 F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R.; I.O.P. 10.6.

2 Under the circumstances, the District Court need not have offered McCabe an additional opportunity to amend his allegations. S ee Grayson v. Mayview State Hosp. , 2 93 F.3d 103, 108 (3d Cir. 2002); In re Burlington Coat Factory Sec. Litig. , 114 F.3 d 1410, 1434 (3d Cir. 1997). The District Court did not err in denying McCabe‟s motion for appointment of counsel. See T abron v. Grace , 6 F.3d 147, 155

- 57 (3d Cir. 1993).