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GLD-049 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3498

___________

ERIC DICKERSON,

Appellant

v.

SCI GRATERFORD; THE DEFENDANTS OF THE COMMONWEALTH; MERCY 

SUBERTION HOSPITAL PRISON HEALTH CARE SERVICES; BUREAU OF 

HEALTH CARE SERVICES

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 10-cv-07177)

District Judge: Honorable Mary A. McLaughlin

____________________________________

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

November 23, 2011

Before: FUENTES, GREENAWAY, JR. and STAPLETON, Circuit Judges

(Opinion filed: December 1, 2011)

_________

OPINION

_________

PER CURIAM

Appellant, Eric Dickerson, a state prisoner proceeding pro se, appeals from an 

order of the United States District Court for the Eastern District of Pennsylvania 
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dismissing his civil rights action brought pursuant to 42 U.S.C. § 1983. We will 

summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 

10.6.

Dickerson filed a complaint, which he later sought to amend, alleging that he was 

not provided with adequate medical care for various ailments, including a hernia, chronic 

pain, and hypertension. He also claimed that prison officials ignored grievances 

concerning his medical condition. Dickerson named as defendants Prison Health 

Services and four of its doctors; Mercy Suburban Hospital and Dr. Christopher Bruce;

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SCI-Graterford and the Bureau of Health Care Services; and four supervisory prison 

officials who allegedly oversaw the processing of administrative grievances. The 

defendants filed motions to dismiss the complaint, Fed. R. Civ. P. 12(b)(6), on the ground 

that it failed to state cognizable federal civil rights claims.

The District Court held two telephone conferences “in part to understand better the 

complaints by [Dickerson] about his medical treatment.” Following those conferences,

the District Court granted the motions to dismiss, agreeing that Dickerson failed to 

demonstrate that the defendants who treated his ailments were deliberately indifferent to 

any serious medical needs. The District Court also noted that Dickerson had not raised 

any factual allegations against Mercy Suburban Hospital and had not alleged that Prison 

Health Services was directly involved in the alleged deprivation of his constitutional 

 

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Initially, Dickerson also named Drs. Dominic Bontempo and Michael Schorr because 

their names appeared on a report issued by Dr. Bruce. During a telephone conference, 

however, Dickerson agreed to dismiss Drs. Bontempo and Schorr because they did not 

engage in any action which caused him harm. Drs. Bontempo and Schorr filed a separate 
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rights. To the extent that Dickerson sought damages against SCI-Graterford, the Bureau 

of Health Care Services, and the prison officials in their official capacities, the District 

Court held that they were protected by immunity under the Eleventh Amendment. 

Furthermore, the District Court concluded that Dickerson had not stated a claim against

the four supervisory prison officials in their individual capacities based on an alleged 

failure to respond to his administrative grievances. Finally, the District Court noted that 

Dickerson’s amended complaint did not cure the pleading deficiencies. Dickerson 

appealed.

We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of a District 

Court’s order granting a motion to dismiss for failure to state a claim is plenary. Dique v. 

N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010). To survive a motion to dismiss, a 

plaintiff must “plead[] factual content that allows the court to draw the reasonable 

inference that the defendant[s are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 556 (2007)). We may summarily affirm if no substantial question is presented by 

the appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O. P. 10.6.

Pursuant to the Eighth Amendment’s prohibition on cruel and unusual 

punishment, prison officials are required to provide basic medical treatment to inmates. 

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). In order to establish a constitutional 

a violation, a prisoner must show that prison officials were deliberately indifferent to the 

prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A finding 

 

motion to dismiss, which the District Court granted. 
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of deliberate indifference requires proof of subjective knowledge, not objective 

knowledge, “meaning that the official must actually be aware of the existence of the 

excessive risk; it is not sufficient that the official should have been aware.” BeersCapitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). We have found deliberate 

indifference where a prison official: 1) knows of a prisoner’s need for medical treatment 

but intentionally refuses to provide it; 2) delays necessary medical treatment for nonmedical reasons; or 3) prevents a prisoner from receiving needed or recommended 

treatment. Rouse, 182 F.3d at 197. 

We will assume that Dickerson’s symptoms and ailments presented an objectively 

serious medical condition. Nevertheless, we agree with the District Court that the 

conduct of the doctors does not amount to deliberate indifference. Dickerson was 

transferred to SCI-Graterford on July 23, 2009. Over the next several months, Dickerson 

submitted numerous “sick call slips” and was seen on the “Doctor Line” on several 

occasions. He did not claim that his requests for medical treatment were ignored. 

Instead, Dickerson emphasized that the doctors decreased, changed, or discontinued 

various medications. For instance, he asserted that the doctors “replaced one of 

Plaintiff’s pain treatment med[ications],” discontinued a medication previously 

prescribed by a cardiologist, and “cut the Plaintiff’s seizure and hypertension 

medication.”2 He also alleged that a doctor told him that “he doesn’t care how much 

 

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Some of Dickerson’s complaints have to do with the defendants’ decision to treat his 

pain with “a muscle relaxer” as well as medication used for gout and “nerve problems.” 

We have held, however, that a doctor’s choice of one drug over another is generally not 

actionable. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
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[pain] the Plaintiff is in [and that he] will have to learn to live with” it. At the same time, 

however, Dickerson acknowledged that the doctors regularly “renew[ed]” his 

medications, “add[ed] a steroid inhaler . . . to [his] asthma med[ications],” and provided 

medication for pain “which did help,” although it also caused him to “gain weight.” 

Furthermore, according to Dickerson, Dr. Bruce concluded that he did not have a hernia, 

after initially recommending surgery. Dickerson also claimed that his “”Abdominal 

Binder” “is of no support whatsoever,” although he admitted that a new one had been 

ordered and that he was waiting for it to arrive.

These allegations, accepted as true, do not support the contention that the doctors 

knew of and disregarded an excessive risk to Dickerson’s health. Farmer v. Brennan, 511 

U.S. 825, 837 (1994). Although Dickerson would have preferred a different course of 

treatment, and complains that he still “suffers from a . . . complex of symptoms,” his 

dissatisfaction does not establish a cause of action. Inmates of Allegheny Jail v. Pierce, 

612 F. 2d 754, 762 (3d Cir. 1979) (courts will “disavow any attempt to second-guess the 

propriety or adequacy of a particular course of treatment . . . (which) remains a question 

of sound professional judgment.” (citations omitted)). Indeed, the doctors’ decisions not 

to prescribe Dickerson’s preferred choice of medications does not establish an Eighth

Amendment violation. Similarly, Dr. Bruce’s determination that Dickerson did not need 

surgery, even if negligent, does not rise to the level of a constitutional violation. Cf.

Johnson v. Doughty, 433 F.3d 1001, 1015 (7th Cir. 2006) (holding that doctor’s 

determination that surgery for a hernia was not necessary did not give rise to an Eighth 

Amendment violation). Therefore, because Dickerson has not alleged facts from which a 
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court could conclude that the doctors acted with deliberate indifference, the District Court 

properly dismissed his Eighth Amendment claims. Monmouth Cnty. Corr. Inst. Inmates 

v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). In addition, Dickerson did not allege any 

facts to demonstrate a policy on the part of Prison Health Services to deny necessary 

medical care, Natale v. Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d 

Cir. 2003) (holding corporation cannot be held liable for acts of its employees under 

doctrine of respondeat superior), and he raised no allegations against Mercy Suburban 

Hospital, other than that he was sent there to be treated by Dr. Bruce.

We further agree with the District Court’s conclusion that the Eleventh 

Amendment affords SCI-Graterford, the Bureau of Health Care Services, and the 

supervisory prison officials protection from suit in their official capacities. Under the 

Eleventh Amendment, states and state agencies are immune from suit for monetary 

damages in federal court. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & 

Eddy, Inc., 506 U.S. 139, 144 (1993). Because SCI-Graterford and the Bureau of Heath 

Care Services are part of the executive department of the Commonwealth of 

Pennsylvania, their employees share in the Commonwealth’s Eleventh Amendment 

immunity to the extent that they were sued in their official capacities. Betts v. New 

Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010); see also Lavia v. Pa. Dep’t of 

Corr., 224 F.3d 190, 195 (3d Cir. 2000). As we have previously noted, the 

Commonwealth of Pennsylvania has not waived its rights under the Eleventh 

Amendment. See Lavia, 224 F.3d at 195; 42 Pa. Cons. Stat. Ann. § 8521(b). In addition, 

we note that the Eleventh Amendment also prevented the District Court from granting 
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Dickerson’s request for prospective injunctive relief against SCI-Graterford and the 

Bureau of Health Care Services.

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See Puerto Rico Aqueduct, 506 U.S. at 146. With 

regard to the supervisory prison officials who were sued in their individual capacities, the 

District Court correctly concluded that Dickerson failed to state a claim for relief under a 

respondeat superior theory. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

(holding that a “defendant in a civil rights action must have a personal involvement in the 

alleged wrongs; liability cannot be predicated solely on the operation of respondeat 

superior.”). To the extent that those prison officials had some direct involvement with

Dickerson’s grievances, he cannot maintain a claim inasmuch as a prisoner has no 

constitutional right to a grievance procedure. See Flick v. Alba, 932 F. 2d 728, 729 (8th 

Cir. 1991) (per curiam).

For the foregoing reasons, we conclude that no substantial question is presented by 

this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s 

judgment. Dickerson’s letter motion asking for an extension of time to file a summary 

action response is granted, and we have considered his response in reaching our decision.

 

3 Although the Eleventh Amendment would not bar a claim for prospective injunctive 

relief brought against the supervisory prison officials in their official capacities, Iles v. de 

Jongh, 638 F.3d 169, 177 (3d Cir. 2011), Dickerson raised no such request for relief. 

Rather, the only injunctive relief Dickerson requested was against the doctors, seeking 

that they reinstate his “previous pain treatment.”