CLD-207 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-3816

___________

JOSEPH SCOTT,

Appellant

v.

JOHN MANENTI; JOSEPH NORWOOD; 

MARK A. KIRBY; RUBEN B. MORALES; 

MARILYN ANGUD; GENERAL COUNSEL; 

UNITED STATES

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-15-cv-07213)

District Judge: Honorable Jerome B. Simandle

____________________________________

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

June 6, 2019

Before: CHAGARES, RESTREPO and SCIRICA, Circuit Judges

(Opinion filed: July 30, 2019)

_________

OPINION*

_________

 

* 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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PER CURIAM

Pro se appellant Joseph Scott appeals from the District Court’s order granting 

summary judgment in favor of several defendants in an action that Scott brought pursuant 

to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). For the 

reasons discussed below, we will summarily affirm.

I.

Because we write primarily for the parties, we will recite only the facts necessary 

for our discussion. Scott is a federal prisoner who was previously incarcerated at FCI 

Fairton in New Jersey. In September 2015, he filed a complaint in the District Court 

alleging that the defendants violated his Eighth Amendment rights by mistreating an 

injury to his shoulder. The District Court screened the complaint and dismissed many of 

the claims for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). The District 

Court permitted the claims against Dr. Manenti and Dr. Morales to proceed. Scott then 

filed several motions to amend his complaint. The District Court denied the majority of

those motions, but the District Court permitted Scott to add a claim for medical 

malpractice against the United States under the Federal Tort Claims Act (FTCA), see 28 

U.S.C. §§ 1346, 2671–80.

After discovery, the remaining defendants moved for summary judgment. The 

undisputed facts in the record showed that Dr. Morales was the Clinical Director at FCI 

Fairton and that Dr. Manenti was the Northeast Regional Medical Director. In October 
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2013, Scott first sought medical care for pain that he was experiencing in his shoulder. A 

nurse practitioner examined Scott and recommended an X-ray. Dr. Morales co-signed 

the recommendation, and an X-ray was conducted in November 2013. The findings were 

negative. In February 2014, Scott complained that he was still experiencing pain in his 

shoulder. A nurse practitioner examined Scott, observed that he had a normal range of 

motion, and prescribed pain medication and rest. Scott next visited the prison’s health 

services in August 2014 because his shoulder was still not improving, and in October 

2014, he requested an MRI. A physician’s assistant examined Scott and recommended 

an orthopedic consultation. Dr. Morales agreed and co-signed the recommendation. 

Scott was examined by an orthopedist, Dr. Sarkos, in January 2015. Dr. Sarkos found 

that Scott had a possible rotator cuff tear and labral tear in his shoulder. Dr. Sarkos

initially recommended treatment with a cortisone shot. After Scott was re-evaluated in 

March 2015, Dr. Sarkos recommended an MRI.

Dr. Morales forwarded the MRI recommendation to the Regional Medical Office, 

which denied the request in June 2015 because Scott had not met the physical therapy 

requirements. Dr. Manenti, the secondary reviewer, agreed with this determination. In 

August 2015, Scott was provided instructions for completing the necessary physical 

therapy. In September 2015, Scott’s shoulder still had not improved after completing the 

therapy, and Dr. Morales co-signed a recommendation to provide Scott with an MRI. In 

November 2015, the request was approved. The MRI was performed in January 2016. In 
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March 2016, after reviewing the results of the MRI, Dr. Sarkos recommended surgery. 

Dr. Morales co-signed a request for a consultation with a surgeon and submitted a request 

for surgery in May 2016. Scott had shoulder surgery in August 2016.

The parties disputed whether the medical care provided to Scott was timely and 

whether it met the applicable professional standard of care. Scott provided an affidavit 

from Nurse Monica Scott, R.N., M.S.N., who opined that Scott’s treatment deviated from 

the standard of care. The defendants provided an expert report from Dr. Ian Blair Fries, a 

licensed physician, who opined that the applicable standard of care was met.

The District Court granted summary judgment in favor of Dr. Morales, Dr. 

Manenti, and the United States. This appeal ensued.

II.

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

dismissal order is plenary, and we review its determination that Scott failed to state a 

claim using the same standard that we use for Fed. R. Civ. P. 12(b)(6) dismissals. See

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

We exercise plenary review over the District Court’s order granting summary 

judgment. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006). 
5

Summary judgment is proper when, viewing the evidence in the light most favorable to 

the nonmoving party and drawing all inferences in favor of that party, there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(a); Kaucher, 455 F.3d at 422–23. We may summarily affirm “on 

any basis supported by the record” if the appeal fails to present a substantial question. 

See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); Third Circuit 

LAR 27.4 and I.O.P. 10.6.

III.

To succeed on an Eighth Amendment medical needs claim, “a plaintiff must make 

(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) (alteration in original) (quoting 

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).1 Prison officials can “act 

deliberately indifferent to a prisoner’s serious medical needs by ‘intentionally denying or 

delaying access to medical care or interfering with the treatment once prescribed.’” Id.

(quoting Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). But “mere disagreement as to 

the proper medical treatment” is insufficient to support an Eighth Amendment claim. 

Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Thus, 

 

1 The parties do not dispute that Scott’s medical needs were serious. See Atkinson v. 

Taylor, 316 F.3d 257, 266 (3d Cir. 2003) (“this Court has defined a medical need as 

serious if it has been diagnosed by a physician as requiring treatment”). 
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“when medical care is provided, we presume that the treatment of a prisoner is proper 

absent evidence that it violates professional standards of care.” Pearson, 850 F.3d at 535 

(citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is 

well established that as long as a physician exercises professional judgment his behavior 

will not violate a prisoner’s constitutional rights”)).

Here, the District Court properly dismissed the Eighth Amendment claims against 

Dr. Angud, Director Norwood, Warden Kirby, and the BOP General Counsel. Scott 

failed to allege that Dr. Angud was personally involved in the treatment of his shoulder, 

let alone that Dr. Angud acted with deliberate indifference. See Rode v. Dellarciprete, 

845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have 

personal involvement in the alleged wrongs” to be liable). Similarly, Scott failed to 

allege that Director Norwood, Warden Kirby, or the BOP General Counsel had any 

reason to believe that the prison doctors or their assistants were mistreating Scott. See

Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (a non-medical prison official is not 

charged with deliberate indifference “absent a reason to believe (or actual knowledge) 

that prison doctors or their assistants are mistreating (or not treating) a prisoner”).

The District Court’s order granting summary judgment in favor of Dr. Manenti 

and Dr. Morales on the Eighth Amendment claims was also proper, as Scott failed to 

produce any evidence that these defendants acted with deliberate indifference. The 

undisputed facts showed that Dr. Manenti and Dr. Morales consistently exercised their
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professional judgment during their treatment of Scott’s shoulder injury. See Brown, 903 

F.2d at 278. Scott’s argument—that the defendants should have provided him with an 

MRI and surgery sooner, rather than first prescribing a course of pain treatment and 

physical therapy—constitutes “mere disagreement as to the proper medical treatment.” 

Lanzaro, 834 F.2d at 346.2

We also agree with the District Court’s determination that the United States was 

entitled to summary judgment on Scott’s FTCA claim.3 FTCA claims are generally 

governed by the substantive tort law of the state where the acts or omissions occurred, in 

this case, New Jersey. See Lomando v. United States, 667 F.3d 363, 372–76 (3d Cir. 

2011). To establish medical malpractice under New Jersey law, “a plaintiff must present 

expert testimony establishing (1) the applicable standard of care; (2) a deviation from that 

standard of care; and (3) that the deviation proximately caused the injury.” Lomando, 

667 F.3d at 379 (quoting Gardner v. Pawliw, 696 A.2d 599, 608 (N.J. 1997) (citations 

omitted)). New Jersey law generally requires “the challenging expert to be equivalently-

 

2 We note that Scott provided an affidavit, from Nurse Scott, stating that his treatment 

deviated from the professional standard of care. But, as discussed in more detail below in 

the context of Scott’s FTCA claim, Nurse Scott’s affidavit did not provide evidence that 

would support a finding that Dr. Manenti or Dr. Morales “so deviated from professional 

standards of care that it amounted to deliberate indifference.” Pearson, 850 F.3d at 541 

(quotation marks and citation omitted).

3 The District Court did not abuse its discretion in denying Scott leave to amend his 

complaint to add FTCA claims against the individual defendants. See CNA v. United 

States, 535 F.3d 132, 138 n.2 (3d Cir. 2008) (“The Government is the only proper 

defendant in a case brought under the FTCA.”); Lorenz v. CSX Corp., 1 F.3d 1406, 1413 

(3d Cir. 1993).
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qualified to the defendant.” Id. (quoting Ryan v. Renny, 999 A.2d 427, 436 (N.J. 2010)); 

see also id. at 374 (discussing United States’ liability under FTCA for tortious conduct of 

its employees). Here, Nurse Scott’s affidavit was insufficient to establish the applicable

standard of care because she is not equivalently-qualified to the United States’ 

employees—Dr. Manenti and Dr. Morales—who allegedly deviated from that standard. 

See Meehan v. Antonellis, 141 A.3d 1162, 1173 (N.J. 2016) (in cases against general 

practitioners, “[t]he expert or affiant must be a licensed physician.”) (citing N.J. Stat. 

Ann. § 2A:53A–41).4 Therefore, Scott failed to present any admissible expert evidence 

to establish the applicable standard of care, and the United States was entitled to

summary judgment on the FTCA claim.

5

 

For the foregoing reasons, we will summarily affirm the District Court’s 

judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

 

4 Scott did not provide any support for his argument that “exceptional circumstances” 

permit a deviation from the statutory requirement of a like-qualified professional or that 

he met the good faith or substantial compliance exceptions under New Jersey law. See

Meehan, 141 A.3d at 1167.

5 While this case involved evidence from experts, the District Court did not abuse its 

discretion in denying Scott’s motions for appointment of counsel. See Tabron v. Grace, 6 

F.3d 147, 158 (3d Cir. 1993). The District Court identified the appropriate considerations 

before concluding that it was unnecessary to appoint counsel because Scott had shown a 

sufficient ability to present his case. See id. at 155–58.