PS4

- 093 NOT PRECEDENTIAL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

___________ No. 14

- 3257

___________ EDWARD JEFFREY MONTGOMERY , Appellant

v. APARATIS DIST. COMPANY ; JOHN DOE; DIRECTOR A L ORTIZ; DIRECTOR FAUNCE; WARDEN HENRICKS ; C APTAIN CHRISTOPHERSON; SGT. LYNN;

CRAWFORD ; LT. JOHN DOES; DR. ANNICETTE

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2

- 13

- cv - 05382 ) District Judge: Honorable Su san D. Wigenton

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 9, 2015 Before: FISHER, KRAUSE and VAN ANTWERPEN , Circuit Judges

(Opinion filed : April 10, 2015 )

___________ OPINION *

___________

PER CU RIAM

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not2

Appellant Edward Montgomery , proceeding pro se and in forma pauperis , appeals from the District Court’s dismissal of his complaint for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § § 1915(e)(2)(B)(ii)

. For the foll owing reasons, we will affirm. Montgomery allege d that, w hile a pretrial detainee housed in the medical unit at Essex County Correctional Facility (“ECCF”) from March 2013 until April 2014 , he slipped and fell in water pooling near water dispensers. Mont gomery sustained a pinched nerve injury that caused continuing leg and back pain. When painkillers prescribed by ECCF medical personnel failed to eliminate his pain, Montgomery was referred to at least two orthopedic specialists. According to Montgomery, t hey recommended that he receive an MRI, which the ECCF medical director, Appellee Dr. Lionel Anicette, refused
for a time to authorize due to its cost. After filing internal administrative grievances without success, Montgomery brought suit under 42 U .S.C. § 1983 and state tort law in District Court against various ECCF correctional officers, Dr. Anicette, and the manufacturer of the water dispensers , Aparatis Distribution Company. He alleg ed that by exposing him to unsafe prison conditions as a pretr ial deta inee and then delaying or denying adequate medical care

— i.e., the MRI

— they violated his Fourteenth Amendment due process rights and were liable for negligence

. On September 18, 201 3 , Montgomery fell while suffering numbness in legs

— which he attrib utes to his pinched nerve

— and injured his wrist. By
constitute binding precedent.3

November 7, 2013, he had requested an injunction ordering ECCF to provide the MRI. Before the court could rule on this motion, Dr. Anicette approved the MRI on December
1 8, 2013, and Montgomery underwen t the procedure on April 3, 2014

. The MRI indicated that Montgomery’s pain was due to levoscoliosis and mild lumbar spondylosis

. On April 3, 2014, the District Court dismissed with prejudice Montgomery’s § 1983 claims against the correctional officers an d Aparatis for failure to state a claim under §§ 191 5( e)(2)(B)(ii)

. 1 The court also dismissed his negligence claims against each Defendant for lack of subject matter jurisdiction . However, the court permitted his claim against Dr. Anic ette to proceed and ordered Dr. Anicette to show cause why the injunction should not be granted. After Dr. Anicette filed a response brief and supporting documents , the District Court on June 17, 2014, denied the request for injunctive relief and dismissed Montgomery’s comp laint against Dr. Anicette under §§ 1915(e)(2)(B)(ii). Montgomery timely appealed. We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the District Court’s dismissal of Montgomery’s claims under § 1915(e). See Allah v. Seiverlin g, 229 F.3d 220, 223 (3d Cir. 2000). The standard for fail ing to state a claim under § 1915(e)(2)(B)(ii) is the same as that under Fed. R. Civ. P. 12(b)(6). See id

. To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient material, accep ted

1 The District Court dismissed all claims against Aparatis and the correctional officers prior to service. They are not participating in this appeal.4

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 (2008)). The District Court properly dismissed the § 1983 claim against Aparatis. A private party is subject to liability under § 1983 only when it acts under color of state law. Mark v. Borough of Hatboro , 51 F.3d 1137, 1141 (3d Cir. 1995) (citing Flagg Bros., Inc. v. Brooks , 436 U.S. 149, 156 (1978)). Montgomery allege d only that Aparatis provided defectiv e water dispensers to ECCF. T here is no suggestion that A paratis exercised any power or authority attributable to state law. See Abbott v. Latshaw , 164 F.3d 141, 146 (3d Cir. 1998) ( citing West v. Atkins , 487 U.S. 42, 49 (1988))

. The District Court dismissed the § 1983 claim against the correctional officers on the grounds that Montgomery’s allegations

— that they knew of the flo oding near the water dispensers but did not replace them until after he was injured

— suggested at most negligence, which does not amount to a constitutional violation. See Cnty. of Sacramento v. Lewis , 523 U.S. 833, 84 9 (1998). As a pretrial detainee, the Fourteenth Amendment protected Montgomery from any and all punishment. See Hubbard v. Taylor , 399 F .3d 150, 166 (3d Cir. 2005) ( citing Bell v. Wolfish , 441 U.S. 520, 535

– 36 (1979))

. A condition constitute s punishment “when there is a showing of express intent to punish on the part of detention facility officials, when the restriction or condition is no t rationally related to a legitimate non

- punitive government purpose, or when the restriction is excessive in light of that purpose.” Stevenson v. Carroll , 495 F.3d 62, 68 (3d Ci r. 2007)

. Montgomery’s allegations do not plausibly suggest either that ECCF5

officers permitted the water to pool intentionally to punish the detainees or that the officers’ alleged tardiness in responding to the hazard was so excessive in light of their legitimate purpose for p roviding the dispensers as to amount to punishment. See id. Nor did the District Court err in dismiss ing under §§ 1915(e)(2)(B)(ii) Montgomery’s claim about the medical care he received

. As noted, Montgomery was a pretrial detainee at the time, and therefore the Fourteenth Amendment Due Process Clause protected him from conditions of confinement , including his health care or lack thereof, that amounted to punishment. See Hubbard , 399 F.3d at 166. We have also analyzed pretrial detainees’ claims of inadequate medical care u sing , as a guide, the Eighth Amendment standard governing such claims by convicted prisoners

. See Natale v. Camden Cnty. Corr. Facility , 318 F.3d 575, 581 (3d Cir. 2003). D elay or denial of medical care violate s the Eighth Amendment where defendants a re deliberately indifferent to a prisoner’s serious medical need. See Rouse v. Plantier , 182 F.3d 192, 197 (3d Cir. 1999). Under any standard applicable here , g overnment al actors ’ intent must be greater than mere negligence for their alleged misconduct to support a constitutional claim

. See Daniels v. Williams , 474 U.S. 327, 333 (1986). Montgomery alleged that orthopedic specialists recommended an MRI to asce rtain the cause of his recurring pain as early as the summer of 2013, but Dr. Anicette did not6

approv e it until December 2013 an d he did not receive it until April 2014. 2 He further alleged that at least one of his phy sicians said the cost of an MRI was a source of delay

. None of Montgomery’s allegations , however, plausibly suggest s that his physicians prescribed an MRI as imme diately necessary to treat his pain. At most, Montgomery’s complaint and the documents he attached to it , see Pension Ben efit Guar. Corp. v. White Consol. Indus., Inc. , 998 F. 2 d 1192, 1196 (3d Cir. 1993) (noting that Rule 12(b)(6) analysis typically consi ders only the complaint, attached exhibits , and matters of public record) , suggest the MRI was being considered to study the genesis of a
nonemergency condition causing him pain , pain that ECCF was directly treating through various courses of medication

. See Rouse , 182 F.3d at 197 (observing that constitutional violation occurs where official “ delays necessary medical treatment based on a non

medical reason ”) (emphasis added). The Constitution does not prevent a prison from factoring cost considerations i nto its medical care decisions if, as here, it does not result
in den ial of necessary treatment. See City of Revere v. Mass. Gen. Hosp

. , 463 U.S. 239,

2 W e recogniz e that the se facts are disputed. I n the Rule 12(b)(6) analysis undertaken in § 1915(e)(2)(B)(ii) screening, see Allah, 229 F.3d at 223, however, a court must assume that a plaintiff’s well

- pleaded factual allegations are true. See Iqbal , 556 U.S. at 679. In condu cting its analysis, the District Court improperly looked to evidence beyond the pleadings without prov iding the pa rties with prior no tice that it would , in effect, be rendering summary judgment. See Fed. R. Civ. P. 12(d); DL Res., Inc. v. FirstEnergy Solu tions Corp. , 506 F.3d 209, 223 (3d Cir. 2007). However, such an error is harmless where, as here, the complaint does not state a viable claim for relief

. See Rose v. Bartle , 871 F. 2 d 331, 342

– 43 (3d Cir. 1989)

.7

245 (1983) ; Tillman v. Lebanon Cnty. Corr. Facility , 221 F.3d 410, 418

– 19 (3d Cir. 2000)

. As Montgomery ’s complaint and its attached documents indicate , ECCF provided
him with medical care for his condition s

— indeed, sending him to two orthopedic specialists

— even if a particular procedure was not provided as quickly as he preferred

. Th at he disagreed with D r. Anicette as to the proper course of his treatment does not indicate that it was unconstitutionally delayed. See Monmouth Cnty. Corr. Institutional
Inmates v. Lanzaro , 8 34 F.2d 326, 346 (3d Cir. 1987) . At most, delaying the MRI while other treatment op tions were pursued suggest s mere medical negligence , which is insufficient to support a constitutional violation. See Daniels , 474 U.S. at 333; Estelle v. Gamble , 429 U.S. 97, 106 (1976). Given the unlikelihood that amended pleadings by Montgomery coul d overcome the identified deficiencies, the District Court did not abuse its discretion in denying leave to amend the § 1983 claims against Aparatis, the correctional officers, and Dr. Anicette.
See Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Ci r. 2002). Finally , as we have noted, the District Court dismissed the negligence claim against each Defendant for lack of subject matter jurisdiction. We understand the District Court to have been declining to exercise supplemental jurisdiction over th ese claims. See 28 U.S.C. § 1367(a); United Mine Workers v. Gibbs , 383 U.S. 715, 725 (1966). As we conclude that the District Court properly dismissed all claims falling within its original jurisdiction, we perceive no abuse of discretion in the District Court’s refusal to exercise8

supplemental jurisdiction

. 3 See 28 U.S.C. § 1367(c)(3); Figueroa v. Buccaneer Hotel,
Inc. , 188 F.3d 172, 181 (3d Cir. 1999). For the foregoing reasons, we will affirm the District Court’s orders dismissing Montgomery’s comp laint

. Montgomery’s request for appointment of counsel , stated within his informal brief and another document he filed in support of his appeal , is denied. Dr. Anicette ’s motion to supplement the record is granted.

3 Because these negligence claims were dis missed without prejudice, Montgomery has the option of pursuing them in state court. However, as it appears that the applicable two

- year statute of limitations , see N.J. Stat. Ann. § 2A:14

- 2 (a) ; McGrogan v. Till , 744 A.2d 255, 260 (N.J. Super. Ct. App. Di v. 2000), is about to or has already expire d on some of these claims during the pendency of this federal litigation , Montgomery risks being time

- barred if he does not file any such action in a New Jersey court within 30 days of this decision. See 28 U.S.C . § 1367 (d) ; Binder v. Price Waterhouse & Co., L.L.P. , 923 A.2d 293, 297 (N.J. Super. Ct. App. Div. 2007).