CLD-070 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3746

___________

JAMES DAVIS,

Appellant

v.

SUPERINTENDENT SOMERSET SCI; DEPUTY SUPERINTENDENT GEHLMAN; 

HEALTH CARE ADMINISTRATOR DENISE THOMAS; HEALTH CARE 

ADMINISTRATOR GERALD PUSKAR; DR. MASON (P.T.); MICHELE 

SWANHART, R.N.; ALL DEFENDANTS EMPLOYED BY PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS AT SOMERSET; JOHN DOE PUBLIC 

EMPLOYEE INSURANCE PROVIDER

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-14-cv-00024)

District Judge: Honorable Kim R. Gibson

____________________________________

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

December 23, 2014

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

(Opinion filed: January 7, 2015)

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OPINION*

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

constitute binding precedent.
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PER CURIAM

James Davis appeals from the District Court’s dismissal of his complaint with 

prejudice. Because his appeal does not present a substantial question, we will summarily 

affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

Davis’s amended complaint, removed from state court, alleged violations of his 

rights under the First and Eighth Amendments. According to Davis, he was an inmate at 

the State Correctional Institution at Somerset (“SCI Somerset”) on December 17, 2011, 

when he slipped and fell on ice at the entrance to his housing unit. Davis suffered 

injuries to his right knee and right shoulder and was taken to the Somerset Hospital for 

treatment. He alleged that the hospital recommended he be immediately referred to an 

orthopedic physician and returned to the hospital to have an M.R.I., but SCI Somerset’s 

Health Care Administrator “chose an alternative treatment,” including physical therapy 

with Defendant Mason. Davis alleged that Mason prescribed weightlifting exercises that 

caused Davis further injury, and that although Davis told Mason that the weightlifting 

was extremely painful to him, Mason nevertheless insisted that Davis continue the 

exercises. Davis further alleged that he told Defendant Nurse Swanhart that he was in 

extreme pain, but she refused him treatment. Davis then submitted to prison officials a 

written request to be seen by the doctor, but the request slip was returned to him with a 

note from Defendant Puskar, who instructed Davis to wait for a response to a grievance 

that Davis had earlier filed. Davis alleged that Puskar’s response was made in retaliation 

for Davis’s grievance. 
3

After Defendant Mason and Defendants Gehlmann, Thomas, Puskar, and Rozum 

filed motions to dismiss, the Magistrate Judge recommended that the complaint be 

dismissed as to all defendants for failure to state a claim. The District Court adopted the 

Magistrate Judge’s Report and Recommendation and concluded that Davis’s amended 

complaint had failed to allege even negligence as to any defendant, much less deliberate 

indifference. The District Court ordered that the complaint be dismissed without further 

leave to amend. 

We have jurisdiction under 28 U.S.C. § 1291. We review the District Court's 

dismissal for failure to state a claim under a plenary standard. See Lazaridis v. Wehmer, 

591 F.3d 666, 670 (3d Cir. 2010) (per curiam). Dismissal 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 affirm on 

any basis supported by the record. See Brown v. Pa. Dep’t of Health Emergency Med. 

Servs., 318 F.3d 473, 475 n.1 (3d Cir. 2003).

To state a claim for deliberate indifference to a serious medical need in violation

of the Eighth Amendment, a plaintiff must show 1) deliberate indifference by prison 

officials to 2) the prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 

106 (1976). “To act with deliberate indifference 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 find deliberate indifference, “the official must both be aware of 

facts from which the inference could be drawn that a substantial risk of serious harm 
4

exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 

(1994). Where 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 medical 

judgments and to constitutionalize claims which sound in state tort law.” United States 

ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal quotation 

marks omitted). Claims of negligence or medical malpractice do not constitute deliberate 

indifference. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

We agree with the District Court that the allegations contained in Davis’s 

complaint do not plausibly state a claim that the defendants acted with deliberate 

indifference to Davis’s medical needs. With respect to the non-medical defendants 

Thomas, Rozum, and Gehlmann, Davis failed to allege that these defendants were 

personally involved with or had knowledge of his medical care. Davis apparently sought 

to impose liability based solely on these defendants’ supervisory positions, but liability in 

a civil rights action must be predicated upon personal involvement, not on the basis of 

respondeat superior. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981).

With respect to Puskar, his sole involvement appears to be in reviewing Davis’s 

note requesting to see the doctor and referring him to the grievance process. As 

nonmedical personnel, Puskar is entitled to presume the competence of medical staff in 

treating a prisoner, meaning that his conduct cannot, without much more, amount to 

“deliberate indifference.” See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). 
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Davis also failed to state a retaliation claim against Puskar. “A prisoner alleging 

retaliation must show (1) constitutionally protected conduct, (2) an adverse action by 

prison officials sufficient to deter a person of ordinary firmness from exercising his 

constitutional rights, and (3) a causal link between the exercise of his constitutional rights 

and the adverse action taken against him.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 

2003) (internal quotation marks and citations omitted). Davis has arguably engaged in 

conduct protected by the First Amendment by filing a grievance concerning the medical 

care he was receiving.1 However, the alleged retaliation – Puskar’s advising Davis to 

await the outcome of his ongoing grievance before filing a repetitive request – does not 

plausibly rise to the level of “adverse action” because it would not be sufficient to deter a 

person of ordinary firmness from exercising his First Amendment rights. See McKee v. 

Hart, 436 F.3d 165, 170-71 (3d Cir. 2006). 

We also agree with the District Court’s decision to dismiss Davis’s claims against 

medical defendants Mason and Swanhart. Davis’s allegations regarding the weightlifting 

regime prescribed by Mason constitute at most a disagreement with the type of care he 

was provided and do not support a claim of deliberate indifference. See Monmouth Cnty. 

Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). With respect to 

Swanhart, Davis’s allegation that she did not sufficiently react to his complaint of pain 

 

1

In recommending the dismissal of Davis’s retaliation claim, the Magistrate Judge relied 

on the lack of a causal link between Davis’s grievance and Puskar’s response. We need 

not decide that question here but observe that timing can be suggestive enough to supply, 

for purposes of 12(b)(6), the required causal link. See Jalil v. Avdel Corp., 873 F.2d 701, 

708 (3d Cir. 1989).
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does not substitute for a plausible allegation that she actually knew Davis required 

medical treatment other than that which he was already receiving. See Schieber v. City 

of Phila., 320 F.3d 409, 421 (3d Cir. 2003). 

With regard to Davis’s claims against Rozum and Gehlmann concerning the 

maintenance of the walkways, Eighth Amendment liability requires “more than ordinary 

lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 

319 (1986). Here, the allegations contained in the amended complaint, taken as true, 

assert a simple negligence claim at most, and thus do not state a claim of a constitutional 

violation under the Eighth Amendment. 

Finally, under the circumstances presented here, where the plaintiff has already 

amended his complaint once, the District Court was not obliged to give Davis additional 

leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).