N OT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 11

- 1591

JOSE MIGUEL LOPEZ, Appellant

v. CORRECTIONAL MEDICAL SERVICES, INC.; LOUIS TRIPOLI; WILLIAM ANDRADE; JAMES NEAL, M.D.; JAMES RU MAN , R.N. ; ROCK WELCH; ABU AHSAN, M.D.; DEVON BROWN; CHARLES LEONE; WARDEN SOUTHERN STATE CORRECTIONAL FACILITY; WARDEN OF NEW JERSEY STATE PRISON; ST. FRANCIS HOSPITAL; JOHN DOES #1

- 10
On Appeal from the United States District Court for the Distr ict of New Jersey

(D. C. No. 1

- 04

- cv - 02 155 ) District Judge: Honorable Noel L. Hillman

Submitted under Third Circuit LAR 34.1(a) on April 24, 2012 Before: SLOVITER and ROTH, and POLLAK*, Circuit Judges District Judge (Opinion filed : September 26 , 2012 )

*Honorable Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sat by designation. Judge Pollak died on May 8, 2012; this opinion is filed by a quorum of the court pursuant to 28 U.S. C. § 46 and the Third Circuit I.O.P. 12.1(b).2 O P I N I O N

ROTH , Circuit Judge This appeal relates to claims brought by a New Jersey state prisoner pursuant to 42
U.S.C. § 1983 alleging violations of his Eighth Amendment right to be free from c ruel and unusual punishment . The prison er alleged that prison officials and employees of a company to which the s tate had delegated responsibility for arranging its inmates ’ medical care violated this right by exhibiting deliberate indifference to his ser ious medical needs s temming from his Hepatitis C (HCV) infection . The District Court rejected these claims and granted summary judgment to these defendants. We will affirm that judgment. :

I. Jose Lopez (Lopez) filed this action in 2004. At t hat time , he was incarcerated at Bayside Prison , a state prison in New Jersey , and had been incarcerated in various other state prisons since 1983

. Between 1983 and 1996, the New Jersey Department of Corrections (NJDOC) arranged itself for the provisi on o f healthcare to its inmates . When Lopez suffered a head injury in 1992 that required medical attention, the NJDOC had him treated at St. Francis Hospital. A spinal t ap was performed at that time, which showed that Lopez had H C V

. St. Francis, however, ne ither informed him of this diagnosis nor provided him a copy of it s medical records pertaining to him. BACKGROUND3 In 1996, NJDOC entered into a contract with Correctional Medical Services, Inc. (CMS), pursuant to which that company would assume responsibility for ar ranging medical care for state inmates. From this time until 2002, Lopez required medical attention only occasionally , for routine testing and minor treatment

. Then, on May 9, 2002, he started vomiting blood and was taken to the emergency room at South J ersey Hospital. Doctors there found that he had serious esophageal varices that were causing the bleeding, and they also suspected that he had H C V . He was first transf erred to St. Francis for additional treatment and then discharged back to t he prison in firmary on May 13th , where he was monitored until May 29th. On July 9 th , Lopez returned to the
infirm ary because he had a nose bleed. H e was at that point referred for HCV screening. He tested positive for HCV on July 23 rd and learned of his condition t hat day. He eventually began a course of drug therapy, but because of poor results and side effects, that treatment was ultimately discontinued. On May 7, 2004, Lopez file d a lawsuit asserting a number of claims relating to the diagnosis and treatment of his HCV

. Among the defendants in this suit were various NJDOC officials sued in their indi vidual and official capacities (NJDOC defendants) , including Devon Brown, Commissioner of the NJDOC; Charles Leone, Administrator of Bayside Prison; Ronald Cathel, Administrator of Southern State Correctional Facility; and Roy Hendricks, Administrator of New Jersey State Prison. Also named as defendants were CMS and a number of its employees (CMS defendants) , including William Andrade, James J. Neal, James Ruman, Ro ck Welch, and Abu Ahsan

. Lopez’s clai ms against these two groups of defendants included one brought under 42 U.S.C. §4 1983 alleging that they had violated hi s Eighth Amendment right to be free from cruel and unusual punishment through failing to screen fo r HCV, failing to treat HCV , and failing to timel y inform him that he had HCV. The Distr i ct Court granted summary judgment to the NJDOC and CMS def endants on those claims. 1 That judgment , as it pertains to the claim s brought against the NJDOC defendants , in their individual capacities , and the CMS defendants , is now presented for our review. 2
II. The District Court had federal question jurisdiction over Lopez’s § 1983 claims pursuant to 28 U.S.C. § 13 31, and w e exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of summary judgment is plenary. Blackhawk v. Pennsylvania , 381 F.3d 202, 206 (3d Cir. 2004). Our task is thus identical to that performed by the District Court: to determine whet her there is any genuine issue of material fact in relation to Lop ez’s Eighth Amendment claim and whether the NJDOC and CMS defendants are entitled t o judgment as a matter of law. Celotex Corp. v.
Catrett , 477 U.S. 317, 330 (1986)

. A fact is material if, under the governing substantive DISCUSSION

1 Lopez also brought a § 1983 claim against St. Francis all eging a violation of his Eighth Amendment rights. In addition, he brought claims against all defendants alleging violations of his Fourteenth Amendment right to equal protection, violations of his rights under the Americans with Disabilities Act, 42 U.S.C . § 12101, et seq. , and common law fraud. Finally, he brought claims against just St. Francis and the CMS defendants alleging negligence, medical malpractice, and intentional and negligent infliction of emotional distress. The common law claims against S t. Francis were resolved through settlement, and the defendants obtained summary judgment on all others. None of these claims is before us on appeal.

2 On September 1, 2008, Lopez died from complications of liver disease. The administrator of his estate , his son, also named Jose Lopez (Plaintiff), substituted as the plaintiff in this action, see Fed. R. Civ. P. 25(a)(1), and continues in that capacity.5 law, a dispute about it might affect the outcome of the suit; there is a genuine issue as to it if there is evidence in the record from which a reasonable jury could find in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc

. , 477 U.S. 242, 248 (1996). Finally, we note that we are free to affirm the District Court’s judgment on grounds different from those upon which it relied. I n re Mushroom Transp. Co. , 382 F.3d 325, 344 (3d Cir. 2004). Plaintiff is correct that the Eigh th Amendment requires that prisoners receive access to basic medical treatment. Rouse v. Plantier , 182 F.3d 192, 197 (3d Cir. 1999)

. In order to show a violation of Lopez’s right to such treatment , however, Plaintiff must identify “acts or omissions [on the part of the defendants] sufficiently harmful to evidence deliberate indifference to [Lopez’s ] serious medical needs.” Estelle v. Gamble , 429 U.S. 97, 106 (1976)

. A defendant exhibits such deliberate indifference if he “knows of and disregards an exce ssive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility , 318 F.3d 575, 582 (3d Cir. 2002) (citation omitted). Mere medical malpractice, negligence, and courses of treatment inconsistent with the desires of the prisoner, though , do n ot constitute deliberate indifference to serious medical needs. Spruill v. Gillis , 37 2 F.3d 218, 235 (3d. Cir. 2004) . Instead, w e have found deliberate indifference to a prisoner’s serious medical needs only where a prison official knows of a prisoner’s need for medical treatment but intentionally refuses to provide it, delays necessary medical treatment for a non

- medical reason, or prevents a prisoner from receiving needed medical treatment. Rouse , 182 F.3d at 197. A deliberate indifference claim can a lso be made ou t against a supervisor , which requires showing that “(1) [the6 supervisor’s policies] created an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indi fferent to that risk; and ( 4) the injury resulted from the policy [] .” Beers

- Capitol v. Whetzel , 256 F.3d 120, 134 (3d. Cir. 2001).
A. NJDOC Defendants
We find that the NJDOC defendants were entitled to summary judgment on Plaintiff’s deliberate indif ference claim. These defendant s can only be held liable under § 1983 for a deprivation of a constitutional right if they had some “personal involvement” in it. Rode v. Dellarciprete , 845 F.2d 11 95, 1207 (3d Cir. 1988). Plaintiff presents no evidence tha t any of the named NJDOC defendants had such personal involvement in the alleged unconstitutional failures to adequately diagnos e, treat, and inform Lopez of his
HCV

. With respect to defendant Roy Hendricks, the only connection to Lopez is his service as Administrator of New Jersey State Prison, where Lopez was incarcerated between 1983 and 1996. Hendricks, however, did not assume that role until 199 8, well after Lopez’s departure; he thus could not possibly have had any personal involvement in any actio ns, omissions , or policies that violated Lopez’s Eighth Amendment rights. Defendant Ronald Cathel’ s only connection to Lopez is similar

– he began serving as Admin i strato r of Southern State Correctional Facility two years after Lopez’ s imprisonment there ended , and he therefore also could not have had any personal involvement in the alleged deprivation of Lopez’s Eighth Amendment rights. Defendant Devon Brown became Commissioner of the NJDOC in 2002, while Lopez was a state inmate and just months befor e h e received his HCV diagnosis, and defendant Charles7 Leone likewise became Administrator of Bayside Prison in 2002, while Lopez was a prisoner there. There is no evidence in the record , however , indicating that either of these

men were personally involved

– through acts , omissions, or policies

– in the allegedly deficient diagnosis and treatment of Lopez’s HCV. They, too, therefore cannot be held liable for violating Lopez’s Eighth Amendment rights

. B

. CMS Defendants We find that t he District Court’s g rant of summary judgm ent to the CMS defendants was also appropriate. There is no evidence that defendants William Andrade, James J. Neal, James Ruman, or Rock Welch ever had any personal involvement with Lopez’s actual medical care. Though defendant Abu Ahsan did participate in Lopez’s medical care, this involvement bega n only after Lopez learned of his HCV and was receiving treatment for it, and is thus irrelevant to Plaintiff’s claims. As a result, these defendants cannot be held liable for actually fa iling to screen, treat, or i nform Lopez of his HCV

. Plaintiff can succeed in his claims against them only if he can show that they were responsible fo r some policy that resulted in Lopez’s injury. Because CMS cannot be held responsible for the acts of i ts employees under a theory of respondeat superior in a § 1983 action, it t oo can only be held liable on the basis of some policy it had that caused the alleged violation of Lopez’s Eighth Amendment rights. See Natale , 318 F.3d
at 583

- 84. Plaintiff alle ges that CMS had policies not to screen or treat inmates for HCV and

not to inform inmates that were kno wn to have HCV of their diagnose s, all in order to avoid the c osts of testing and treatment. With respect to an alleged policy not to screen8 for HCV , h owever, the record shows that , actually, thousand s of inmates were tested for the infection in the years at issue

. T hough Plaintiff objects to CMS’s having a policy of screening only inmates who presented with both symptoms of HCV and evidence of
HCV as t he cause rather than an alternate policy under which all inmates with risk factors
for an infection would be screened , that choic e , as a medical judgment, cannot serve as the basis of a deliberate indifference claim. See Estelle , 429 U.S. at 107

. To supp ort his next allegation that CMS had a policy of deny ing appropriate treatment to inmates that it knew to be infected with HCV, Plaintiff relies on a “fact sheet” allegedly distributed in 1998 by Louis Tripoli, a CMS official. Plaintiff claims that this d ocument was distributed to “discourage the overtreatme nt of HCV” and that it advocated for allocating resources to the treatment of other diseases rather than to the treatment of HCV. This document does not appear in the record. Even if it did, though, i t would not sustain Plaintiff’s argument because there is no evidence that Tripoli’s suggestions were ever translated into CMS policy. Finally, Plaintiff claims that a CMS policy of not informing inmates with HCV of thei r condition is evidenced by the fac t that , in 2002, it was allegedly discovered that many inmates were unaware that their medical records indicated that they had HCV

. There is no evidence, however, of a CMS policy specifically designed to bring about this result, and we therefore reject Pl aintiff’s argument. We thus find that there is no evidence to support Plaintiff’s claim that CMS had policies to deny prison inmates testing and treatment for HCV and to further intentionally9 keep infected inmates uninformed of their HCV status. As a result, Plaintiff cannot prevail on his Eighth Amendment claims against any of the CMS defendants.
III. For the reasons explained above, we will affirm the District Court’s judgment. CONCLUSION

3

3 Plaintiff also contends that the District Court erred in denying his motion for reconsideration. Thi s motion, filed 174 days after the District Court granted summary judgment to all defendants on Plaintiff’s Eighth Amendment claims, was untimely, and we therefore reject that argument. See D.N.J. L. Civ. R. 7.1(i).