NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 3

- 4640

___________ ANTHONY L

. TENON ,

Appellant

v. WILLIAM DREIBELBIS, Corrections Health Care Administrator; RONALD LONG, Medical Doctor; JOSH MAHUUT, Physician Assistant; SEAN TYSON, Physician Assistant; DOCTOR AGAWAL, S.C.I. Smithfield Doctor; DOCTOR LONG

____________________________________ On Appeal from the United States District Court for the Middle D istrict of Pennsylvania (D.C. Civil Action No. 1

- 12

- cv - 0 1 278 ) District Judge: Honorable William W. Caldwell

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

March 27, 2015
Before: CHAGARES, JORDAN and GREENBERG , Circuit Judges

(Opinion filed : March 31, 2015 )

___________ OPINI ON *

___________

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding preceden t.2

PER CURIAM Pro se appellant Anthony Tenon seeks review of the District Court’s order s dismissing his civil right s action against several defendants and awarding summary judgment to the remaining defendants . For the reasons discussed bel ow, we will affirm in part, vacate in part , and remand for further proceedings

. Tenon , a Pennsylvania state prisoner , fi led suit pursuant to 42 U.S.C. § 1983 against William Dreibelbis, a health care administrator at the State Correctional
Institution at S mithfield (SCI

- Smithfield ) , Dr. Ronald Long and Dr. Agawal, both physicians , and two physician assistants, Josh Mahu t e 1 and Sean Tyson , all employed at
SCI

- Smithfield

. O n July 16, 2010 , Tenon suffered a diabetic seizure in his prison cell, causing him to fall and fracture his jaw

. In his complaint, he alleges that the defendants were deliberately indifferent to the serious medical needs stemming from his injury , causing him to suff

er severe, unnecessary pain and permanent disfigurement, and thereby
violat ing his civil rights

. Tenon also asserts a state law claim for negligence.
The Magistrate Judge initially screened the complaint pursuant to 28 U.S.C. § 1915A and recommended dismissing all of the claims without prejudice for failure to

state a claim, except those against defendant Drebeilbis . In response, Tenon filed an
amende d complaint. The Magistrate Judge issued a Report and Recommendation (R&R) , which the District Court adopted as its opinion , dismissing the § 1983 claims a gainst Tyson, Mahu t e and Dr. Agawal with prejudice and declining to exercise supplemental

1 Josh Mahute’s name is misspelled as “Mahuut” in the caption and throughout Tenon’s3

jurisdiction over the state law claims . The case then proceeded a gainst defendants Dreibelbis and Long; after discovery, the District Court granted su mmary judgment in
their favor

. T his appeal ensu ed. 2 We have appellat e jurisdiction under 28 U.S.C. § 1291

. Our review of a District
Court’s sua sponte dismissal under the PLRA is plenary. Allah v. Seiverling , 229 F.3d
220 , 223 (3d Cir. 2000 ). We exercise plenary review ov er an ord er granting summary judgment. De Hart v. Horn , 390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, there is n o genui ne issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Kaucher v. Cnty. of Bucks , 455 F.3d 418, 422

- 23 (3d Cir. 2006).
I. Tenon alleges that, i mmediately after his injury, he was examined by De fendant
Mahu t e . Tenon complained that he could not open his jaw and that it was causing him excruciating pain. After concluding that the jaw was likely broken, Mahute ordered an x

ray, and prescribed Motrin and a “ soft diet.” 3 There appears no dispute t hat Tenon never

pleadings. 2 Tenon has waived his right to appeal the District Court’s decision to decline supplemental jurisdiction over the state law claims. See Kost v. Kozakiewic z , 1 F.3d 176, 182 (3d Cir. 1993) ( issues not raised in an opening brief are deemed waived) ; see also LoSacco v. City of Middletown , 71 F.3d 88, 92

- 93 (2d Cir. 1995) (although “appellate courts generally do not hold pro se litigants rigidly to the formal b riefing standards . . . we need not manufacture claims of error for an appellant proceeding pro se, especially when he has raised an issue below and elected not to pursue it on appeal.”). 3 Throughout his complaint, Tenon incorrectly refers to the diet or dered by Mahute as a4

received the soft diet. On July 22, 2010, six days after the injury, Tenon ’s jaw was x rayed; he was also examined and informed by defendant Tyson that he had a single fracture to his jaw. Tenon informed Tyson that he was unable to eat be cause he had not yet received the soft diet. Tyson respond ed that the sof t diet was likely delayed because of “paperwork.” On July 29th, Tenon was examined by Dr. Agawal . Tenon reiterated his complaint that he had yet to receive a soft diet, and complai ned to Agawal that the Motrin was ineffective for the pain. Ac cording to Tenon, Agawal co nfirmed the fracture
and informed Tenon that he would be scheduled for surgery.
The record indicates that Tenon made additional efforts to seek relief for his pain and obtain a soft diet. On July 30, 2010, he submitted a “Sick Call Request” to the medical department, requesting to be seen by a physician’s assistant because the pain medication for his “broken jaw” was “not working at all.” There was no response to t his request. On August 5, 2010, he submitted an “Inmate Request Slip to Staff Member” addressed to defendant Long, complaining that his previous sick call request went unheard, and that he was unable to sleep or eat because of the “extreme pain” in his
br oken jaw and the delay in getting it fixed. According to Tenon, there was no response. On August 14th, nearly one month after his injury, Tenon filed a second “Sick Call Request” to the medical department seeking “stronger pain medication” because the
“M otrin is not working at all.” On August 19, he filed another “inmate request” with Defendant Long, outlining the lack of medical treatment and severe pain, and inquiring

“liquid,” rather than a soft diet.5

about getting his jaw fixed. On that date, h e also filed an official g rievance with the prison, detail ing his pain and la ck of medical care. H e was transported five days later to the Medical Hospital of S.C.I. Pittsburgh , where he was examined by Dr. Chung, a maxillof acial s pecialist. Dr. Chung allegedly informed Tenon that he sustained three fractures to his jaw, two on the left and one on the right, but that the right fracture had already started to fuse on its own. On September 17, 2010, Dr. Chung s urgically repaired Tenon’s left jaw.
In his com plaint, Tenon alleges that he was denied the soft diet by the dining hall and forced to try to eat solid foods because “either Defendant Mahuut (sic) did not place the [soft diet] order” or “Defendant Dreibelbis did not approve” it. As a result of his “[im]proper diet,” his “diabetes and blood sugar levels [were] out of whack causing sickness.” He further alleges that defendants Mahute and Tyson failed to respond to his sick call requests, Dr. Long failed to respond to his direct inmate requests, and Dr. Agawal failed to address his compl aints regarding the severity of his pain and improper
diet. He maintains that, as a direct result of the delay in treatment, the fracture on the right side of his jaw healed improperly, leaving him with a permanent crooked jaw line, which prevents him fro m chewing properly.
II. The Prison Litigation Reform Act (PLRA) requires courts to dismiss a prisoner civil rights suit if the action is frivolous or does not state a claim upon which relief may be granted. 28 U.S.C.A. § 1915A(b)(1) & (2). To avoi d dismissal, the facts as plead must6

“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678

- 79 (2009) (citation omitted). To state a claim for a violation under the Eighth Amendment, Tenon must allege “(1) that the defendants were deliberately indifferent to [his] medical needs and (2) that those needs were serious.” Rouse v. Plantier , 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble , 429 U.S. 97, 106 (1976)). T o succeed on his claim, the first prong requ ires Tenon to establish that objectively the deprivation of a basic human need was “sufficiently serious

. ” Under the second prong, he must prove that, subjectively , the prison official acted with a “sufficiently culpable state of mind.”
Wilson v. Seiter , 501 U.S. 294, 298 (1991). T he District Court properly concluded tha t his fractured jaw, and result ing pain, constituted an objectively serious medical need. See Wise v. Lappin , 674 F.3d 939, 941 (8th Cir. 2012) (finding that “a painful broken jaw

const ituted an objectively serious medical need”). The District Court dismissed the claims against defendants Mahute, Tyson , and Agawal , finding that Tenon failed to allege facts sufficient to demonstrate that they were deliberately indifferent to this serious
medical need. We agree with the District Court that the allegations against Tyson do not support
an inference that he acted with deliberate indifference. Nearly a week after the injury, Tyson examined Tenon and informed him that, as confirmed by the x - ray, his jaw was fractured. He put Tenon on the “sick call list” to be seen by a medical doctor. In response to Tenon’s complaint that he had not yet received the soft diet, Tyson indicated that the delay could be the result of “paperwork.” Tenon doe s not allege that he followed7

up directly with Tyson regarding the lack of soft diet or any other medical care ; his “sick call request” was not directed to Tyson or any specific medical provider . It cannot plausibly be inferred from these facts

-- which s uggest that Tyson believed that the soft
diet was ordered

-- that he was deliberately indifferent to Tenon’s medical needs. See
Farmer v. Brennan , 511 U.S. 825, 837 (1994) (a person acts with deliberate indifference when “he knows of and disregards an exc essive risk to inmate health or safety ” ); see also Fowler v. UPMS Shadyside , 578 F.3d 203, 210 (3d Cir.2009) (t o survive sua sponte
screeni ng for failure to state a claim , the complaint must allege “sufficient factual matter”
to show that the claim is faci ally plausible ). With respect to Mahute, the District Court noted that he provided immediate and proper care to Tenon on the day he was injured

. It concluded that Tenon failed to allege facts to support a claim that, after that date, Mahute was aware he was being denied adequate medical care. See Farmer v. Brennan , 511 U.S. 825 , 837 (1994)

. The District
Court neglected to address the claim, added to the amended complaint, that Mahute failed
to order the soft diet

. T his allegation was sufficient to stat e a claim for relief , particularly where it is alleged that Mahute believed at the time that the jaw was broken

. See Estelle , 429 U.S. at 103 ( The Eighth Amendment safeguards the prisoner against a lack of medical care that ‘may result in pain and sufferi ng which no one suggests would serve
any peno logical purpose. ”) ; Spruill v. Gillis , 372 F.3d 218, 235 (3d Cir. 2004) (finding deliberate indifference “where prison authorities deny reasonable requests for medical treatment . . . and such denial exposes the inmate to undue suffering or the threat of8

tangible residual injury”); McElligott v. Foley , 182 F.3d 1248, 1257 (11th Cir. 1999) (“A core principle of the Eighth Amendment jurisprudence in the area of medical care is that prison officials with knowledge o f the need for care may not, by failing to provide care, delaying care, or providing grossly inadequate care, cause a prisoner to needlessly suffer the pain resulting from his or her illness. ” ). However, t he summary judgment record , which includes a “Heal thy Therapeutic Diet Order Form” and a “Physician’s Order Form,” both signed by Mahute, clearly establishes that Mahute order ed a soft diet for
Tenon. Because it is clear the claim c ould not survive judgment as a matter of law , we will not disturb the Dis trict Court’s order dismissing it

. In dismissing the claim against Dr. Agawal , the District Court noted that , according to the complaint , Tenon told Agawal the M otrin was “effective” in treating the pain. This was clearly a typographical error by Teno n . In addition to the delay in surgery, the crux of Tenon’s c laims

-- made clear throughout the complaint and its
attachments

– is that the M otrin was ineffective in treating his pain. 4 See U.S. Express Lines, Ltd. v. Higgins , 281 F.3d 383, 388 (3d Cir. 2002) (i n determining whether a complaint states a claim for relief , courts accept as true the allegations in the complaint and its attachments, as well as reasonable inferences construed in the light most favorable to the plaintiffs )

. Indeed, the R&R the n acknowledges that Tenon asked Dr. Agawal for “stronger pain medic ation” for his “severe jaw pain, ” a request which would belie an

4 For example, the Sick Call Request, dated July 30, 2010, the day after Tenon was seen by Dr. Agawal, states that he needs “stronger pain medication” because the “[M] otrin is not working at all.”9

assertion that the medication was effective. Furthermore, it was Dr. Agawal who confirmed that Tenon required surgery for his jaw fracture . In the face of that knowledge
and the knowledge that it had been nearly two weeks since the injury , yet the prescribed soft diet had not been provided, Tenon’s allegations that Agawal failed to respond to his claims for stronger pain med ication for his “excruciating pain” are sufficiently serious to support an Eighth Amendment claim

. See Estelle , 429 U.S. at 103 ; Rouse , 182 F.2d at 197 (deliberate indifference is demonstrated where “a prison official . . . knows of a prisoner’s need for medical treatment but intentionally refuses to provide it” ). Accordingly, the District Court e rred in dismissing the claims against Dr. Agawal.
III.
The remaining question is whether the summary judg ment record established that
defendants Long and Dreibelbis were deliberately indifferent to Tenon’s serious medical need “by intentionally denying or delaying medical care.” Giles v. Kearney 571 F.3d 318, 330 (3d Cir. 2009). In granting summary judgment to d efendant Long, the District Court conc luded
that hi s “ only involvement in the treatment of Plaintiff’s jaw injuries was that Plaintiff sent him two request slips. ” It further concluded that, because Tenon “had been fully evaluated by the prison medical staff, and a course of t reatment had bee n recommended[, a]ny failure of Defendant Long to provide treatment beyond the basic medical care mandated by the Eighth Amendment speaks more to the adequacy of the medical care10

than the absolute denial of medical care alleged by Plaintiff, and as such is not a viable Eighth Amendment claim. ” We disagree with the District Court’s disposition of this
claim for two reasons . First, it mis characterizes Tenon’s claim . Contrary to the District Court’s conclusion, Tenon’s claim is not a dispute over the adequa cy of the treatment or the need to pursue one course of treatment over another, either of which generally fails to
state a claim for relief under the Eighth Amendment. See United States v. Fayette County , 599 F.2d 573, 575 n.2 (3d Cir. 1979) (“When a pris oner had 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.”) (quotation marks omitt ed). Rather, t he gravamen of Tenon’s claim against Long is that a prescribed course of treatment

– a soft diet and
surgery

– were not being provided, and that he was needlessly suffering pain as a result. Such a claim is cognizable under the Eighth Amend ment. See White v. Napoleon , 897 F.2d 103, 109

- 10 (3d Cir. 1990) (prison officials are deliberately indifferent to a prisoner’s serious medical needs when they “intentionally deny[ ] or delay[ ] medical

care or intentionally interf[ere] with the treatmen t once prescribed ”) (citing Estelle , 429
U.S. at 104 ) (emphasis in original) ( citations omitted)); Berry v. Peter man , 604 F.3d 435 (7th Cir. 2010) (8

- week delay in providing effective treatment for dental pain is actionable); see also Boyd v. Knox , 47 F.3d 966, 968

– 69 (8th Cir.1995) (3

– week delay in dental care for infected and impacted tooth where swelling and pus were assessed,11

coupled with knowledge of inmate's suffering, can support finding of Eighth Amendment violation). Second, as the moving party , Long has the burden to demonstrate that there is no genuine issue of fact. Fairbanks, Morse & Co. v. Consolidated Fisheries Co. , 190 F.2d 817, 824 (3d Cir. 1951). The only evidence presented in support of the motion was a copy of Tenon’s deposition. A ccording to Long, the deposition demonstrates that Tenon was receiving “ongoing medical care” and, therefore, any failure to respond to the medical requests does not demonstrate deliberate indifference. The “ongoing medical

care ” Long refers to is Tenon b eing seen by Mahute, Tyson, and Agawal, and being recommended for surgery. T enon had alleged that despite these “medical interventions,” as Long refers to them, he did not receive the prescribed care. T he deposition does not negate that contention. The Inmate to Staff Requests are probative evidence that Dr. Long was aware of Tenon’s complaints and, absent any evidence to the contrary

– which Dr. Long failed to provide − is sufficient to create a genuine issue of fact. Viewing the evidence in the light most favorable to Tenon, as we must, we cannot agree with the District Court that summary judgment was warranted. 5 A § 1983 action cannot be premised on a theory of respondeat superior. See Rode v. Dellarciprete , 845 F.2d 1195, 1207 (3d Cir. 1988). Defendant Dreibelbis must have

5 Dr. Long argued that the claims against him should be dismissed for failure to exhaust administrative remedies because Tenon failed to name him in his grievance. We agree with the District Court that Tenon has overcome this procedural default because the Initial Review Response to the grievance clearly indicates that Long was put on notice of the claim. See Williams v. Bear , 482 F.3d 637, 640 (3d Cir. 2007).12

personal involvement, including participation, or actual knowledge and acquiescence, to
be liable. Id. Tenon alleged that Dreibelbis had direct knowledge of his serious medical injury but failed to approve the prescribed treatment and unreasonably delayed the recommended treatment. We agree with the District Court that Dreibelbis met his burden
to demonstrate that there is no genuine issue of fact regarding whether he was deliberately indifferent to Long’s medical needs. In support of his motion for summary judgment, Dreibelbis included an affidavit in which he averred that, as the Corrections Health Care Administrator (CHCA), he was responsible for the “overall administrative operation of the Health Care Depar tment at SC I

- Smithfield” but was “not responsible for overseeing and approving the findings and recommendations of doctors and physicians assistants regarding treatment, medication or diets.” Dreibelbis Aff. , ¶ ¶ 2, 4. He indicated that “Corizon,” a medical company that contracts with the DOC for medical services, was responsible for approving all physicians’ orders and scheduling surgeries

. Id. at ¶¶ 5, 17. Dreibelbis’ sole involvement a ppears to be in reviewing Tenon 's administrative complaint related to this suit

. M erely responding to or reviewing an inmate grievance does not rise to the level of personal involvement necessary to allege an Eighth Amendment deliberate i ndifference claim. See Dellarciprete , 845 F.2d at 1208. Accordingly, summary judgment was warr anted on this claim. 6

6 Dreibelbis stated that the scheduling of the surger y was to be done by the “Corizon Clin ical Coordinator,” and approved by “Corizon Clinical Review.” Dreibelbis Aff., ¶17. On remand, Tenon may wish to again seek leave to amend the complain t to name the proper defendants. Allowing any such amendment is, of course, within the discretion of13

Based on the foregoing, we will affirm the dismissal of the claims against defendants Tyson and Mahute, and the grant of summary judgment in favor of defend ant Dreibelbis. We will vacate the dismissal of the claims against Dr. Ag awal, and the grant of summary judgment in favor of defendant Long , and remand for further proceedings on
those claims

. 7

t he District Court.

7 In its August 22, 2012 order, the District Court declined t o appoint Tenon counsel, after finding that h e could present his own case. We agree with its assessment at that time , and find no abuse of discretion

. See Tabron v. Grace , 6 F.3 d 147, 156 (3d Cir. 1993) (“The plaintiff's ability to present his or her case is, of course, a significant factor that must be considered in determining whether to appoint counsel.”). T hat said, t he District Court indicated its willingness to revisit this issue in the future . G iven the present stage of the case, and the medical evidence that may be involved, the Court may wish to again consider the Tabron factors on remand. We take no position on whether that request should be granted.