ALD-051 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-2566 ___________

ENRICO FABIANO LANZA, Appellant

v.

MICHAEL A. MOCLOCK, M.D.; KAREN (MERRITT) SCULLY; WEXFORD HEALTH SERVICES, INC.; THOMAS S. MCGINELY, Superintendent of S.C.I. Coal Township; NICHOLLE L. BOGUSLAW, Physicians Assistant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-17-cv-01318) District Judge: Honorable Robert D. Mariani ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 17, 2020 Before: MCKEE, GREENAWAY, JR. and BIBAS, Circuit Judges

(Opinion filed January 8, 2021) _________

OPINION* _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Appellant Enrico Lanza, proceeding pro se and in forma pauperis, appeals from

the District Court’s order dismissing his complaint. For the reasons that follow, we will

summarily affirm the District Court’s judgment.

Lanza commenced this action in July 2017, pursuant to

, alleging

violations of his Eighth Amendment rights by various officials and employees of the

Pennsylvania State Correctional Institute at Coal Township (“SCI-Coal Township”),

where Lanza was incarcerated at the time of the events. He alleged that after he separated

and fractured his shoulder in 2011, the medical staff at SCI-Coal Township failed to

provide him with adequate medical care, despite his repeated grievances. He also claimed

that after an operation on his back in 2016 at an off-site facility, SCI-Coal Township’s

staff did not adhere to the follow-up treatment recommended by the surgeon. Finally, he

claimed he was improperly charged for co-pays and medication for his condition.

For relief, Lanza asked the court to order “immediate medical care from a

specialist,” and require the SCI-Coal Township medical staff “to comply with the

recommendations of the specialist.” He also requested that the court have the professional

licenses of Defendants Moclock and Boguslaw revoked, Defendants Merritt-Scully and

McGinley terminated, and the contract between the Pennsylvania Department of

Corrections (“DOC”) and Wexford Services cancelled. Finally, he sought significant

monetary damages from each defendant.

2 Defendants Merritt-Scully and McGinley filed a joint answer to the complaint,

asserting various affirmative defenses. Defendants Moclock, Boguslaw, and Wexford

then filed motions to dismiss. The District Court granted the motions to dismiss and sua

sponte dismissed the claims against Merritt-Scully and McGinley. Lanza timely filed a

notice of appeal.

I.

We have jurisdiction under

. We exercise plenary review over the

grant of a motion to dismiss pursuant to Rule 12(b)(6), see Newark Cab Ass’n v. City of

Newark,

(3d Cir. 2018), and apply the same standards to a dismissal

pursuant to

(e)(2)(B), see Allah v. Seiverling,

(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,

(2009) (internal quotation marks omitted). We accept all factual

allegations in the complaint as true and construe those facts in the light most favorable to

the plaintiff, Fleisher v. Standard Ins. Co.,

(3d Cir. 2012), and construe

Lanza’s pro se complaint liberally, see Erickson v. Pardus,

(2007) (per

curiam). We may summarily affirm if the appeal fails to present a substantial question.

See Murray v. Bledsoe,

(3d Cir. 2011) (per curiam); 3d Cir. L.A.R.

27.4; I.O.P. 10.6.

3 II.

As an initial matter, we note that to the extent Lanza seeks prospective injunctive

relief ordering medical care, his claims are moot. Lanza has been released from SCI-Coal

Township, and apparently from DOC custody entirely, and thus none of the named

defendants remain responsible for his medical care. See Sutton v. Rasheed,

(3d Cir. 2003) (“An inmate's transfer from the facility complained of generally moots

the equitable and declaratory claims.” (citing Abdul–Akbar v. Watson,

(3d Cir. 1993))). Moreover, granting any of Lanza’s requests to revoke defendants’

professional licenses or terminate their employment—even assuming such actions were

within a court’s equitable powers—would “ignore[] the basic tenet of equity

jurisprudence: if an adequate remedy at law exists, equitable relief will not be granted.”

Goadby v. Phila. Elec. Co.,

, 122 (3d Cir. 1981).1 Therefore, our discussion

concerns only Lanza’s claims for monetary damages.

A. Defendants Moclock and Boguslaw

Lanza asserted claims against Dr. Michael Moclock and Nicholle Boguslaw, a

physician assistant, for deliberate indifference to his medical needs in violation of the

Eighth Amendment. Specifically, he alleged that after a 2011 incident in which he

1 Lanza filed a document titled “Criminal Complaint” against Defendants McGinley and Merritt-Scully. See ECF No. 25. The District Court held that neither it nor Lanza had the authority to initiate such charges, see Mem. at 28 n.4, ECF No. 40, and we agree. He also sought to have the Bureau of Professional and Occupational Affairs prosecute Defendants Moclock and Boguslaw but was properly rebuffed. See Compl. at 57, ECF No. 4. 4 fractured and separated his shoulder, these defendants denied his requests for medical

treatment. Then, following his surgery at an outside facility for spinal stenosis in 2016,

the defendants did not give him the precise follow-up treatment recommended by the

surgeon. Finally, he asserts that he was improperly charged for sick call co-pays and pain

relief medication for a condition he claims is “chronic.” For the reasons that follow, the

District Court properly granted the motion to dismiss these claims.

The District Court properly held that many of Lanza’s claims were time barred.

The two-year state statute of limitations for a personal injury claim applies to Lanza’s §

1983 claim. See Dique v. N.J. State Police,

(3d Cir. 2010);

. While actions that amount to “continuing violations” may toll the

running of the statute so long as some acts complained of fall within the limitations

period, see Cowell v. Palmer Twp.,

(3d Cir. 2001), “time-barred

claims cannot be resurrected by being aggregated and labeled continuing violations,”

O’Connor v. City of Newark,

(3d Cir. 2006). Here, Lanza’s complaint

asserts claims beginning in 2011, six years before he brought his action. As the District

Court noted, Lanza’s prayer for monetary relief of “One (1) Million Dollars for every

year [he] suffered,” Compl. at 6, ECF No. 4, “speaks unambiguously” to the statute of

limitations problems with his claims, Mem. at 13, ECF No. 40.2 Lanza has not adequately

2 Lanza’s response to defendants’ motions to dismiss expressed concern about the citation to “(Doc. 4, Section II(C), page 2 of 63)” as the source of the dates of events leading to his action. See Resp. at 1, ECF No. 39. We reassure Lanza that this citation is not to confidential medical records, but to his own Complaint, where he answered the question 5 pled his claims to establish the continuing violations doctrine’s applicability, or any other

justification for equitable tolling of the statute of limitations. We thus agree with the

District Court that any claims that accrued prior to July 2015 are barred.

Although Lanza’s remaining Eighth Amendment claims were timely, the District

Court properly granted defendants’ motion to dismiss. To sustain such a claim under §

1983, a plaintiff must make a subjective showing that “the defendants were deliberately

indifferent to [his or her] medical needs” and an objective showing that “those needs

were serious.” Rouse v. Plantier,

(3d Cir. 1999). “[I]ntentionally

denying or delaying access to medical care or intentionally interfering with the treatment

once prescribed” will clearly establish a violation, Estelle v. Gamble,

, 104–

05 (1976), yet a plaintiff’s “mere disagreement” with a medical provider as to proper

treatment is insufficient, Spruill v. Gillis,

(3d Cir. 2004) (quoting

Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro,

, 346 (3d Cir.

1987)). In addition, “the deliberate indifference standard of Estelle does not guarantee

prisoners the right to be entirely free from the cost considerations that figure in the

medical-care decisions made by most non-prisoners in our society.” Reynolds v. Wagner,

(3d Cir. 1997).

Lanza attached to his complaint exhaustive records of his communications with

the medical staff and prison administration through requests for treatment and grievances.

“What date and approximate time did the events giving rise to your claim(s) occur?” with “May 2011 – and 2016 thru [sic] 2017.” See Compl. at 2, ECF No. 4. 6 Rather than demonstrating deliberate indifference, Lanza’s records show that he was

treated with a variety of medications and seen regularly by medical staff at his request.

The very fact that he was seen at an outside facility and underwent surgery for his spinal

stenosis shows the extent to which he did receive treatment. As the District Court found,

“the allegations in the complaint amount to nothing more than Lanza's subjective

disagreement with the treatment decisions and medical judgment of the medical staff at

the prison.” Mem. at 17, ECF No. 40. Moreover, Lanza’s complaints about charges for

co-pays and over-the-counter pain relievers do not rise to the level of an Eighth

Amendment violation; nor do they give rise to a Fourteenth Amendment violation, since

he clearly had access to the grievance procedures as an available post-deprivation

remedy. See Reynolds, 128 F.3d at 174–75. The District Court therefore properly granted

the motion to dismiss.

B. Defendants Merritt-Scully and McGinley

The District Court also sua sponte dismissed Lanza’s claims against Karen

Merritt-Scully and Thomas McGinley. While these defendants had not filed a motion to

dismiss, they had included in their answer to Lanza’s complaint affirmative defenses

based on the statute of limitations and failure to state a claim. The District Court

exercised its authority under

(e)(ii)(B) to dismiss Lanza’s claims against

these defendants. For the same reasons stated above, the statute of limitations barred any

claims prior to July 2015. Furthermore, Lanza’s allegations against these defendants

rested on grounds that do not amount to cognizable § 1983 claims. See Rode v. 7 Dellarciprete,

(3d Cir. 1988) (holding that grievance review alone is

not sufficient “personal involvement” for liability in a civil rights action, nor is

respondeat superior a proper theory of liability in such action). Therefore, the District

Court properly dismissed Lanza’s claims against these defendants.

C. Wexford Services

The District Court also properly dismissed Lanza’s claims against Wexford

Services for failing to provide adequate medical care and for negligently hiring Dr.

Moclock. See Compl. at 7, ECF No. 4. While Lanza is correct that the original contract

between Wexford and the Pennsylvania Department of Corrections was intended to run

until 2017, see Resp. to Mot. to Dismiss at 2, ECF No. 39, the contract was in fact later

modified, and, as the District Court noted, terminated on August 31, 2014.3 We therefore

agree with the District Court’s conclusion that Wexford had no involvement in Lanza’s

care after that date, and any claims prior to that date are barred by the statute of

limitations. Thus, the District Court properly granted Wexford’s motion to dismiss.

D. Leave to Amend

Lastly, we conclude that the District Court did not abuse its discretion by denying

Lanza an opportunity to amend the complaint to better support his claims; as the District

3 See Mem. at 26–27, ECF No. 40; Release, Pa. Treasury, Cont. No. AGR-15-213 (May 26, 2015), https://patreasury.gov/transparency/e-library//ContractFiles/314505_AGR-15- 213%20Wexford%20Health%20Sources%2C%20Incorporated.pdf. We note that for the same reason, Lanza’s prayer for cancellation of the contract between Wexford and the DOC—even assuming it would be within a court’s equitable powers to do so—is moot. 8 Court explained, such amendment would be futile. See Phillips v. County of Allegheny,

(3d Cir. 2008) (holding that a district court need not permit a curative

amendment if such amendment would be futile); Great W. Mining & Min. Co. v. Fox

Rothschild LLP,

(3d Cir. 2010). Here, the District Court concluded

that the legal and factual flaws in Lanza’s claims rendered any attempt at amendment

futile. As we affirm that determination for the reasons discussed above, the District Court

did not abuse its discretion in denying leave to amend.

III.

For the foregoing reasons, Lanza’s appeal fails to present any substantial question,

and we will summarily affirm the District Court’s judgment.4

4 Lanza’s motion to appoint counsel is also denied. See Tabron v. Grace,

(3d Cir. 1993) (holding that the “arguable merit” of a claim is a “threshold matter” to the exercise of discretion in appointing counsel under § 1915). 9