DLD-052 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3556

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SOLOMON JOHNSON,

Appellant

v.

BRIAN V. COLEMAN, WARDEN; DR. HERBICK, MEDICAL DIRECTOR;

ROBERT TRETINIK, R.N.

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2:11-cv-01376)

District Judge: Honorable Joy Flowers Conti

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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 29, 2012

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: December 13, 2012 )

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OPINION

_________________

PER CURIAM

Solomon Johnson appeals pro se from the District Court’s order dismissing his

complaint. Because the appeal presents no substantial question, we will summarily 

affirm the District Court’s order.
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I.

In 2008, Johnson filed a civil rights complaint in the United States District Court 

for the Western District of Pennsylvania. In the complaint, he alleged that Defendants 

Dr. Herbick, Brian Coleman, and Robert Tretinik were deliberately indifferent to his 

serious medical condition in violation of the Eighth Amendment to the Constitution. 

The medical condition from which Johnson suffers is known as deep vein 

thrombosis. Prior to his incarceration, he was given a treatment plan consisting of

“lifetime annual ultrasound therapy in conjunction with blood thinners . . . .” Johnson 

received this treatment while imprisoned at the State Correctional Institution at Albion in

September 2007. After being transferred to the State Correctional Institution at Fayette, 

he requested his annual treatment for 2008. Herbick, the Medical Director, refused to 

continue with the yearly ultrasound therapy, telling Johnson that ultrasound therapy was 

only necessary if he was having pain. Herbick also arranged for Johnson to consult with 

a vascular surgeon via videoconference, and it appears that the vascular surgeon agreed 

with Herbick’s decision to forego Johnson’s annual ultrasound therapy.

At some point in 2009, Johnson developed pain and a lump in his left leg. After 

he expressed concern that he was experiencing clotting in his legs, he was visited by 

medical personnel. It appears that, during his medical examination, Johnson received 

anti-inflammatory medicine and an X-ray, which came out negative for signs of the lump. 

Because Johnson was unable to consult the vascular surgeon again or receive ultrasound 

therapy, he filed a grievance regarding his treatment. Tretinik, the Chief Health Care 
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Administrator, responded to Johnson’s grievance with a letter reiterating the treatment

that Johnson received.

According to Johnson’s complaint, Herbick demonstrated deliberate indifference 

to Johnson’s serious medical condition by failing to comply with Johnson’s preincarceration medical treatment plan and failing to consult the vascular surgeon after 

Johnson complained of the lump and pain in his left leg. Johnson also claimed that his 

grievance put Tretinik and Coleman, the Warden, on notice that he suffered from a 

serious medical condition and was not receiving adequate medical treatment in the 

prison.

The Magistrate Judge recommended dismissing Johnson’s complaint against all 

three defendants, reasoning that (1) Johnson’s claim against Herbick was time-barred; (2) 

Johnson failed to allege facts establishing that Herbick acted with deliberate indifference; 

and (3) Johnson failed to allege facts establishing that Coleman and Tretinik had actual 

knowledge that Johnson was not receiving adequate medical treatment. Despite

Johnson’s objections to the Report and Recommendation, the District Court agreed 

substantially with the Magistrate Judge and issued a memorandum order dismissing 

Johnson’s complaint. Johnson timely appealed to this Court.

II.

We have appellate jurisdiction pursuant to 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 
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dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must contain “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, 678 (2009) (citing 

Twombly, 550 U.S. at 556). We may summarily affirm a judgment of the District Court 

on any basis supported by the record if the appeal does not raise a substantial question. 

See I.O.P. 10.6; see also Murray v. Bledsoe

A. 

, 650 F.3d 246, 247 (3d Cir. 2011).

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

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

Dismissal of the claim against Herbick

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

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 

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). Deference is given to prison 

medical authorities in the diagnosis and treatment of patients, and courts “disavow any 

attempt to second-guess the propriety or adequacy of a particular course of treatment . . . 

(which) remains a question of sound professional judgment.” Inmates of Allegheny 

Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 
5

F.2d 44, 48 (4th Cir. 1977)). 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 based on a non-medical reason; or (3) 

prevents a prisoner from receiving needed or recommended treatment.” Rouse, 182 F.3d 

at 197 (citing Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993)). However, we have 

found that “no claim is stated when a doctor disagrees with the professional judgment of 

another doctor.” White v. Napoleon

The District Court properly dismissed Johnson’s claim for failure to allege facts 

establishing that Herbick knew of and ignored a risk to Johnson’s health. Although 

Johnson alleged a serious medical condition, he did not allege that Herbick denied or 

delayed necessary medical treatments. Instead, Johnson received treatment for his 

condition in accordance with Herbick’s treatment plan, which Herbick apparently 

developed via videoconference consultation with a vascular surgeon. It thus appears that 

Johnson’s claim is fundamentally about his concern that Herbick’s treatment plan 

differed from the treatment Johnson received prior to his incarceration at SCI-Fayette. 

Because Johnson’s complaint alleged only a disagreement with the course of treatment he 

received, we agree with the District Court that Johnson failed to state a claim that 

Herbick was deliberately indifferent to his serious medical condition.

, 897 F.2d 103, 110 (3d Cir. 1990).

B. 

The District Court properly dismissed Johnson’s claims against Tretinik and 

Coleman for their roles as administrators. “If a prisoner is under the care of medical 

Dismissal of the claim against Tretinik and Coleman 
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experts . . . a non-medical prison official will generally be justified in believing that the 

prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Thus, 

“absent a reason to believe (or actual knowledge) that prison doctors or their assistants 

are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be 

chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” 

Id. Because Tretinik’s only alleged role was responding to Johnson’s administrative 

complaint, we conclude that the District Court properly applied Spruill

The District Court also properly dismissed Johnson’s claim against Coleman. “An 

individual government defendant in a civil rights action must have personal involvement 

in the alleged wrongdoing; liability cannot be predicated solely on the operation of 

respondeat superior.”

when it dismissed 

Johnson’s claim against Tretinik.

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting 

Rode v. Dellarciprete

Accordingly, this appeal presents us with no substantial question, and we will 

summarily affirm the District Court’s order. 

, 845 F.2d 1195, 1207 (3d Cir. 1988)). Here, because Johnson did 

not allege that Coleman had any personal involvement in the alleged underlying 

wrongdoing, he failed to state a claim against Coleman.

See 3rd Cir. LAR 27.4 and I.O.P. 10.6.