BLD-347 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 17-2144

___________ CHARLES TALBERT, Appellant

v. CORIZON INC; MICHELLE DILA URO; MOHAMMAD HAQUE; BRUCE BLATT; JEAN PATEL; KIMBERLEE ADAMS

___________________ _________________ On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (D.C. Civil No. 2-16-cv-05545) District Judge: Honorable Lawrence F. Stengel

___________________ _________________ Submitted for Possible Dismissal Due to a Jurisdictional Defect, or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 31, 2017 Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges (Opinion Filed: October 16, 2017)

_________ OPINION *

_________

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 PER CURIAM Charles Talbert appeals the District C ourt’s dismissal of a suit under 42 U.S.C. § 1983 against several employees of Corizon, Inc. (“Corizon”), the medical provider at Curran-Fromhold Correcti onal Facility (“CFCF”) in Philad elphia, alleging violations of the First and Eighth Amendment. The claims stem from the medical treatment Talbert received while he was incarcerated at CFCF fo r three months in 2016. For the reasons given here, we will summarily affirm. In 2014, Talbert filed a different suit ag ainst Corizon, concerning events that occurred when he was incarcerate d at CFCF on a separate occa sion. That case settled in April 2016 and in mid-July 2016, Talbert returned to CFCF on a probatio n violation. He alleged that when he was waiting in the triage area to be screened for tuberculosis upon readmission into the facility, an unidentifie d Corizon employee made comments about his 2014 suit and then threat ened to stick him with a needle contaminated with HIV. Fearing that he would be stuck with the HIV-infected needle, Talbert refuse d the blood test for tuberculosis. He was then pl aced in “medical lo ck-in” for 24 hours, until he ultimately “decided to let Corizon employe es stick him with a needle.” 1 See Compl. ¶¶ 8-14. Talbert remained incarcerated at CFCF for approximately thre e more months, until early-October 2016. During that time, he filed several requests asking to either “have an x-ray examination check for tuberculosis” or to be taken to an outside medical facility to

1 It is unclear from the complaint and from Ta lbert’s other filings whether this constituted the blood test for tuberculosis and, if it did, what the results were.3 have blood testing for tuberculosis done. All of these requests were denied. See id. ¶¶
16-17. Talbert filed this lawsuit shortly after he was released from CFCF. In May 2017, the District Court dismissed his complaint with leave to file an am ended complaint within 14 days. Talbert did not, however, file an am ended complaint. He instead filed a timely notice of appeal. We have jurisdiction over appeals from fina l decisions of the district courts. 28 U.S.C. § 1291. A final deci sion “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 376 (3d Cir. 2005) (internal quotatio ns omitted). Generally, an order which dismisses a complaint without pr ejudice is neither final nor appealable unless the plaintiff “declares his intention to sta nd on his complaint.” Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam). In this regard, there is no “clear rule for determining when a party has elected to stand on his or her complaint.” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009) . But we have determined th at a party does so when, as is the case here, it has been given leave to amend within a certain amount of time and instead files a notice of appeal. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992). Consequently, we have appell ate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the order granting the defendants’ motion to dismiss. Grier v. Klem, 591 F.3d 672, 676 (3d Cir. 2010). In reviewing the dismissal under Rule 12(b)(6), “we accept all factual al legations as true [and] construe the4 complaint in the light most fa vorable to the plaintiff.” Wa rren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinke r v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A court may grant a motion to dismiss under Rule 12(b)(6) “only if, accepting all well-pleaded allegations in the complaint as tr ue and viewing them in the light most favorable to th e plaintiff, [it] finds that [the] plaintiff's claims lack facial plausibility.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). Talbert first alleged that th e threat to stick him with an HIV-infected needle was in retaliation for having filed the 2014 lawsuit ag ainst Corizon. We agree with the District Court’s dismissal of this First Amendment retaliation claim on the basis that Talbert failed to adequately allege that any of the named defendants were personally involved in either making the threat or placing him in “med ical lock-in” as a result of his refusal to undergo the tuberculosis test. See Rode v. Dellarciprete, 845 F. 2d 1195, 1207 (3d Cir. 1988). Indeed, Talbert allege d only that some “unknown, very slim Corizon employee” threatened him with the HIV- infected needle, Compl. ¶ 11, and that “Corizon” ordered the medical lock-in, id. ¶ 14. Moreove r, Talbert did not name any unidentified individuals as defendants, and the allegati ons against the Corizon employees against whom he did bring suit solely concern their alleged subsequent refusal to perform an xray tuberculosis test or refe r him to an off-site medical f acility. And the District Court properly determined that Ta lbert failed to state a claim against Corizon pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), because he failed to allege facts plausibly demonstrating the existence of a re levant custom or policy of Corizon. See5 Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013). The First Amendment retaliation clai m, therefore, fails. We also agree with the District Court th at Talbert has not sufficiently alleged an Eighth Amendment violation. The Eighth Amendment prohibits deliberate indifference towards the serious medical needs of prison ers as it constitutes the “unnecessary and wanton infliction of pain.” Estelle v. Gamble , 429 U.S. 97, 105 (1976). In order to state a cognizable claim, a plaintiff must allege “(1) that the defendants were deliberately indifferent to their medical needs and (2) th at those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle, 429 U.S. at 106). A medical need is generally “serious” if it is either “one that has been diagnosed by a physician as requiring treat ment or one that is so ob vious that a lay person would easily recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quota tions omitted). But “serious medical needs” are not limited to “current serious health pr oblems,” Helling v. McKinney, 509 U.S. 25, 34 (1993), as the fact “[t]hat the Eighth Amendment protects against future harm to inmates is not a nove l proposition,” id. at 33. In this regard, “prison officials may [not] be deliberately in different to the exposu re of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Id .; see also Lee v. Armontrout , 991 F.2d 487, 489 (8th Cir. 1993) (noting that tuberculosis is a highly contagious, communicable disease having the potential to become epidem ic in prison populations).6 But even if Talbert adequately alleged an objectively “serious medical need,” he did not adequately allege “deliberate indiffere nce.” Talbert relies exclusively on the fact that prison medical staff would not x-ray him for tuberculosis or send him outside of CFCF to have tuberculosis te sting done elsewhere. Yet deliberate indifference requires that prison officials know of an excessive ri sk to an inmate’s he alth or safety and disregard that risk. Farmer v. Brennan, 511 U.S. 825, 835 (1994). Talbert’s complaint in fact acknowledged that tubercul osis testing was available at CFCF, and he did not allege that any of the named defendants even knew of his stated reas on (the threat he received at intake) for refusing that tubercul osis test. Moreover, “mere di sagreement as to the proper medical treatment [does not] support a claim of an eighth amendment violation.” See Monmouth Cty. Corr. Inst. In mates, 834 F.2d at 346. Co nsequently, Talbert has not sufficiently alleged an Eighth Amendment violation here. Accordingly, for the reasons stated ab ove, we will affirm the District Court’s dismissal of Talbert’s claims.