GLD-317 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-2167

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MICHAEL BEARAM,

Appellant

v.

GEORGE C. WIGEN, Warden; DR. CUTLER; J. HUBLER, LPN; C. SMITH, PA; J. 

MILLER, Case Manager.

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3:13-cv-00050)

District Judge: Honorable Kim R. Gibson

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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

July 3, 2013

Before: FUENTES, FISHER and VANASKIE, Circuit Judges

(Opinion filed: October 7, 2013)

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OPINION

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PER CURIAM

Michael Bearam, a prisoner at the Moshannon Valley Correctional Center 

(MVCC) in Pennsylvania, appeals pro se the dismissal of a civil rights action brought 

pursuant to Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S. 
2

388 (1971), alleging a violation of his Eighth Amendment rights. For the reasons that 

follow, we will summarily affirm. See LAR 27.4; I.O.P. 10.6. 

In his complaint,1 Bearam alleged that he has a brain tumor, a 

pheochromocytoma,2

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

and an advanced degree of kidney damage. He alleged that the 

only treatment he received related to these conditions is blood pressure medication, and 

that an array of prison doctors failed to treat his condition, with some even denying the 

existence of his tumors. The District Court dismissed the amended complaint for failure 

to state a claim. See 28 U.S.C. 1915(e)(2)(B)(ii). 

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). The standard 

requires “a two-part analysis.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d 

Cir. 2009). First, the court must separate the complaint’s factual allegations from its 

legal conclusions, taking only the factual allegations as true. Id. Second, the court must 

determine whether the plaintiff has alleged facts “sufficient to show that the plaintiff has 

 1 Bearam’s original complaint was screened by the Magistrate Judge pursuant to 28 

U.S.C. § 1915A, who recommended it be dismissed with leave to amend. Bearam filed a 

“Motion to Amend” which the District Court treated as an amended complaint. 

Construing his filings liberally, we treat both documents as a single, amended complaint. 

2 A pheochromocytoma is a kind of tumor affecting the adrenal glands. See STEDMAN’S 

MEDICAL DICTIONARY 1480 (28th ed. 2006).
3

a plausible claim for relief.” Id at 211. “We may also consider documents attached to 

the complaint.” Huertas v. Galazy Asset Management, 641 F.3d 28, 32 (3d Cir. 2011) 

(per curiam). We may affirm on any basis supported by the record. Murray v. Bledsoe, 

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

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). Where prison officials know of the prisoner’s serious medical need, 

deliberate indifference will be found where the 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 medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d 

Cir. 1999). 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 

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

(1994).

We may easily affirm the dismissal as to three of the five defendants, as “J. 

Hubler, LPN; C. Smith, PA; J. Miller, Case Manager” appear nowhere in the complaint 

other than the caption. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (holding 
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that personal involvement was a necessary element in a civil rights action against an 

individual government defendant). Almost as easily, we may affirm the dismissal as to 

George C. Wigen, warden of MVCC, as his sole involvement appears to be in reviewing 

Bearam’s administrative complaint related to this suit. See id. Additionally, as 

nonmedical personnel, Wigen 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). 

The final defendant is Dr. Cutler. Dr. Cutler’s involvement is unclear. The factual 

allegations against Dr. Cutler, stripped of legal conclusions not entitled to the 

presumption of truth, are that: 

Dr. Cutler, recommends High Blood Pressure Pills, which are totally 

inadequate to remedy my Kidney or Tumor problem. Dr. Cutler refuses to 

perform Surgery so as to remove the Tumor. Further, Dr. Cutler, refuses a 

Blood Transfusion . . . refuses to conduct an MRI, CT scan, or Surgery to 

remove the Tumor in the Brain. Dr. Cutler said: ‘the Blood test shows 

negative.’ Inspite of my pain, slow lost of eye sight, swelling in the chest, 

groin area, all of which I am constantly complaining of to the Medical 

Staff. . . Dr. Cutler made clear that I do have a High Blood pressure. What 

Dr. Cutler is refusing to acknowledge is the Pheochromocytoma which is 

the root cause of my High Blood pressure. Dr. Cutler told me to keep 

looking at the ‘call out’ for my name.

Amended Complaint at 2-3 (errors in original). Taking these allegations as true, 

they do not rise to the level of deliberate indifference, and are at best an allegation of 

medical malpractice. See Spruill, 372 F.3d at 235 (“Allegations of medical malpractice 

are not sufficient to establish a Constitutional violation.”). 
5

Bearam asserted that Dr. Cutler either misdiagnosed or refused to diagnose his 

tumors, and did not order additional testing after some initial diagnostics3 suggested that 

Bearam did not have tumors. Without more, the decision not to order additional 

diagnostic tests will not constitute deliberate indifference, as it suggests mere negligence, 

if that. See Gamble, 429 U.S. at 106. Bearam’s allegation that Dr. Cutler is “refusing to 

acknowledge” his tumors does not substitute for a plausible allegation that Dr. Cutler 

actually knew certain tumors existed and refused to treat them. See Schieber v. City of 

Philadelphia, 320 F.3d 409, 421 (3d Cir. 2003). Here, we have instead an allegation that 

Dr. Cutler performed some investigation and determined that Bearam does not have the 

condition he thinks he has; while Dr. Cutler could conceivably be wrong, he cannot 

consciously disregard a risk he has found reason to believe does not exist. There are no 

facts to draw an inference of a substantial risk of serious harm, and Dr. Cutler has 

accordingly drawn the opposite inference.4

Finding no substantial question to be presented by this appeal, we will summarily 

affirm the judgment of the District Court. 

 

 3 In addition to the allegations relating to Dr. Cutler himself, the complaint and the 

documents attached also suggest that multiple MRIs were performed at a previous prison, 

that while at MVCC additional urinalysis and blood tests have been performed, and that 

Bearam saw a nephrologist, with the result that no evidence of tumors has been found. It 

is not clear which of these tests were ordered by or reviewed by Dr. Cutler personally, 

beyond the blood test referenced in the text. 

4 Under the circumstances presented here, where the plaintiff has already amended his 

complaint once to allege deliberate indifference, the District Court was not obliged to 

give Bearam additional leave to amend. See Grayson v. Mayview State Hospital, 293 

F.3d 103, 114 (3d Cir. 2002).