NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-3164

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THOMAS WISNIEWSKI,

 Appellant

v.

JAMES F. FROMMER, JR, D.O..; D.O. ANDREW J. DANCHA;

CORRECT CARE SOLUTIONS LLC; DEBORAH CUTSHALL; WILLIAM 

DREIBELBIS; PAULA NOEL; EUGENE H. GINCHEREAU; H.C.A. KATHY 

MONTAG; JODI WHITE; ANDREA NORRIS; JOSEPH J. SILVA; CHRISTOPHER 

OPPMAN; PENNSYLVANIA DEPARTMENT OF CORRECTIONS

_____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-16-cv-01626)

District Judge: Honorable Yvette Kane

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Submitted Under Third Circuit L.A.R. 34.1(a)

July 9, 2018

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Before: McKEE, VANASKIE, and SILER,∗ Circuit Judges

(Filed: October 3, 2018)

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OPINION**

 ______________

 ∗ The Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the Sixth Circuit 

Court of Appeals in Kentucky, sitting by designation.

** 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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VANASKIE, Circuit Judge.

Appellant Thomas Wisniewski is currently serving a life sentence for murder. He

filed this 42 U.S.C. § 1983 claim in July 2017 alleging that medical professionals at 

Pennsylvania State Correctional Institution-Smithfield (“SCI-Smithfield”) (collectively 

“Appellees”) were deliberately indifferent to his medical needs in violation of the Eighth 

Amendment. The District Court dismissed Wisniewski’s complaint after it determined 

that the allegations amounted to nothing more than a bona fide disagreement between 

Wisniewski and the prison’s professional medical staff over the best means of treating 

Wisniewski’s back pain. Because a review of the record confirms that Wisniewski 

indeed failed to allege a prima facie Eighth Amendment violation, we will affirm. 

I.

Wisniewski is serving a life sentence for murder at SCI-Smithfield, where he has 

been incarcerated for the better part of the past eighteen years. Wisniewski has 

experienced chronic back pain since the late 1970s. For the first fifteen years of his 

incarceration, he managed his discomfort by taking a prescription opioid called Tramadol

(also known as Ultram). The dosage, which amounted to roughly 400 milligrams per 

day, was administered by medical professionals under the employ of Appellee Correct 

Care Solutions, LLC (“CCS”), a private company contracted to provide medical services 

for inmates at SCI-Smithfield. 

Appellee James Frommer, D.O., was assigned as SCI-Smithfield’s medical 

director in 2015. Following his appointment, Dr. Frommer conducted an independent 

evaluation of Wisniewski to assess his medical needs. He then decided to discontinue 
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Wisniewski’s prescription for narcotic pain medication. Dr. Frommer’s decision was

based on various medical considerations, including the addictive nature of Tramadol and

the harmful complications associated with its long-term usage. In its place, Dr. Frommer

determined that Wisniewski’s back pain could be treated just as effectively through 

nonsteroidal anti-inflammatory drugs or Motrin. 

Shortly after Dr. Frommer discontinued Wisniewski’s Tramadol prescription, 

Wisniewski filed a complaint and an emergency application for a temporary restraining 

order in the Court of Common Pleas of Huntingdon County, requesting that the court 

mandate that Appellees provide him with his previously prescribed levels of Tramadol. 

The trial court, after a brief hearing at which only Wisniewski presented evidence, 

granted his motion on August 21, 2015. Appellees promptly moved to vacate the 

injunction, and a second hearing was held on September 1, 2015. This time, Appellees 

were afforded an opportunity to proffer documentary and testimonial evidence, but 

Wisniewski was prevented from presenting all of his witnesses. Nevertheless, after the 

close of the second hearing, the trial court issued an order vacating the preliminary 

injunction. Wisniewski subsequently appealed, and on June 16, 2016, the Pennsylvania 

Superior Court vacated the trial court’s order and remanded the case with instructions to 

provide Wisniewski an additional opportunity to gather evidence in support of his 

request. 

After the Superior Court issued its decision, Dr. Frommer opted to renew 

Wisniewski’s Tramadol prescription at a lower dosage of 100 milligrams per day. It is 
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undisputed that Wisniewski continues to receive Tramadol and Motrin for pain 

management. 

In the meantime, Wisniewski filed a Second Amended Complaint (“SAC”) in 

state court asserting various federal claims, including the Eighth Amendment claim at 

issue here, and seeking further injunctive relief. His filing prompted Appellees to remove 

the case to the U.S. District Court for the Middle District of Pennsylvania. The case was 

then referred to a Magistrate Judge, who convened an evidentiary hearing on August 23, 

2016, to afford each party a full opportunity to present documentary and testimonial 

evidence. 

At the hearing, Wisniewski testified on his own behalf and explained in detail the 

nature of his back pain and the circumstances surrounding his medical treatment at SCISmithfield. Wisniewski additionally presented the testimony of an expert witness, who 

critiqued the 100-miligram dosage of Tramadol that Wisniewski was receiving from Dr. 

Frommer, but nevertheless acknowledged that prescription practices are matters of 

professional medical judgment and may vary depending on the patient’s circumstances. 

Dr. Frommer took the stand at the hearing as well. He explained his rationale for initially 

discontinuing Wisniewski’s Tramadol prescription, citing the myriad physical and mental

complications known to arise from extended opioid use.

Equipped with a full factual record, the Magistrate Judge issued a detailed report 

on October 12, 2016, recommending that Wisniewski’s request for a preliminary 

injunction be denied without prejudice. “At the outset,” the Judge reasoned, “Wisniewski

cannot meet the first element for such injunctive relief since he cannot show a reasonable 
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likelihood of success on the merits” of his Eighth Amendment claim. (JA 29). The 

Judge also found that Wisniewski could not demonstrate an immediate, irreparable harm 

so as to justify the issuance of a preliminary injunction because he continued to receive 

“the medication he seeks, simply not in the dosage he desires.” (Id. at 36). The 

Magistrate Judge accordingly recommended that Wisniewski’s motion for preliminary 

injunction be denied. 

Wisniewski, in response, filed several objections to the Report and 

Recommendation. On July 24, 2017, the District Court overruled Wisniewski’s

objections and adopted the Magistrate Judge’s Report and Recommendation in full, 

denying Wisniewski’s request for emergency relief, and referring the case back to the 

Magistrate Judge for further pre-trial management and resolution of Wisniewski’s 

remaining claims. 

On remand, the Magistrate Judge determined that Wisniewski failed to establish a 

prima facie Eighth Amendment violation. Citing our case law, the Magistrate Judge 

explained that an Eighth Amendment claim brought under § 1983 must fail if the 

evidence shows that the doctor “exercise[d] . . . professional judgment” in attending to a 

prisoner’s medical needs. (Id. at 56) (quoting Brown v. Borough of Chambersburg, 903 

F.2d 274, 278 (3d Cir. 1990)). Therefore, because Wisniewski’s allegations confirmed 

that he “[had] been seen many times by medical providers” who “exercised professional 

judgment with respect to his care,” the Magistrate Judge accordingly recommended that 

Appellees’ motion to dismiss be granted. (Id. at 62). Once again, the District Court 
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adopted the Magistrate Judge’s Report and Recommendation and granted Appellees’ 

motion to dismiss, prompting this timely appeal.

II.1

“‘Acts or omissions sufficiently harmful to evidence deliberate indifference to 

serious medical needs’ constitute cruel and unusual punishment under the Constitution.”

Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987) (quoting Estelle v. Gamble, 429 

U.S. 97, 106 (1976)). To prove that a prison official acted with deliberate indifference, a 

§ 1983 plaintiff must make two separate showings: “(1) a subjective showing that ‘the 

defendants were deliberately indifferent to [his or her] medical needs’ and (2) an 

objective showing that ‘those needs were serious.’” Pearson v. Prison Health Serv., 850 

F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 

1999) (alterations in original)). Here, because Appellees concede that Wisniewski’s 

medical needs were in fact serious, our analysis will be limited to the first prong only. 

Wisniewski levies a litany of broad accusations against the District Court, most of 

which center on his contention that the District Court disregarded allegations in his SAC

in the course of granting Appellees’ motion to dismiss. For example, Wisniewski states 

that the District Court mistakenly relied on the Magistrate Judge’s finding that Dr. 

Frommer “recommended” that Wisniewski’s back pain be treated with Motrin, when in 

 1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We 

have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a Rule 

12(b)(6) dismissal, see Connelly v. Lane Const. Cor., 809 F.3d 780, 786 n.2 (3d Cir. 

2016) (citation omitted), and “may affirm the district court on any ground supported by 

the record,” Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). 
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fact his complaint alleged “that Motrin was unavailable in [the] prison commissary.” 

(Appellant’s Br. 2) (citation omitted.) A review of the record, however, belies this claim. 

Wisniewski’s complaint states that “high-dose Motrin” was “not available in 

commissary,” (JA 113) (emphasis added), which is precisely what the District Court 

stated. (See id. at 70).

Similarly, Wisniewski asserts that Dr. Frommer “abruptly halt[ed] all pain 

prescriptions and provid[ed] no other medical treatment for severe chronic pain for about 

a year.” (Appellant’s Br. 18). Again, a reading of the SAC reveals otherwise. The SAC

alleges that, after taking Wisniewski off Tramadol, Dr. Frommer told him “to buy Motrin 

in the prison commissary. . . .” (JA 113). 

We have made clear “that there is a critical distinction ‘between cases where the 

complaint alleges a complete denial of medical care and those alleging inadequate 

medical treatment.’” Pearson, 850 F.3d at 535 (quoting United States ex rel. Walker v. 

Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir .1979)). As both the Magistrate Judge and 

the District Court readily concluded, the case at bar plainly falls under the latter category. 

Thus, “[b]ecause mere disagreement as to the proper medical treatment does not support 

a claim of an [E]ighth [A]mendment violation when medical care is provided,” id.

(internal citation omitted), we will affirm the District Court’s order granting Appellees’ 

motion to dismiss.2

 

 2 Because we affirm the District Court’s granting of Appellees’ motion to dismiss, 

it necessarily follows that the District Court’s Order granting Appellees’ Motion to 

Dissolve Injunction is affirmed as well.
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IV. 

For the foregoing reasons, the District Court’s July 24, 2017 Order, granting 

Appellees’ Motion to Dissolve Injunction, as well as the August 31, 2017 Order, granting 

Appellees’ Motion to Dismiss Wisniewski’s Eighth Amendment claim, will be affirmed.