NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1066 ___________

JUSTIN J. ROBERTSON, Appellant

v.

ROBERT GILMORE, Superintendent at SCI Greene; TRACEY SHAWLEY, Sup. Assistant/Grievance Coordinator; ROBERT VALLEY, Former, Medical Director; MICHAEL HICE, Wexford Administrator; DR. ARTHUR M. SANTOS ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-18-cv-01338) Magistrate Judge: Honorable Cynthia R. Eddy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 12, 2021 Before: CHAGARES, PHIPPS, and COWEN, Circuit Judges

(Opinion filed: March 17, 2021) _________

OPINION* _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Justin Robertson, proceeding pro se and in forma pauperis, appeals from the

District Court’s order dismissing his civil rights complaint.1 We will affirm the judgment

of the District Court.

I.

In August 2018, Robertson, who is incarcerated at State Correctional Institution

Greene (“SCI Greene”), initiated a lawsuit in state court pursuant to

alleging that various prison personnel violated his Eighth Amendment right to receive

adequate medical care. The case was removed to federal court, and Robertson filed an

amended complaint. The amended complaint named as defendants the superintendent of

SCI Greene (Defendant Gilmore), a grievance coordinator (Defendant Shawley), the

prison’s former medical director (Defendant Valley), a doctor who treated Robertson

(Defendant Santos), and an administrator for the medical service provider that contracts

with SCI Greene (Defendant Hice).

Robertson alleged that on May 24, 2016, he saw Defendant Santos about a severe

pain in his left shoulder that was causing numbness in his arm and disrupting his sleep.

The doctor prescribed Robertson a muscle relaxer. On June 30, Robertson returned,

complaining that the pain had gotten worse. Santos prescribed a different muscle relaxer

and ordered an x-ray. On July 12, Robertson again returned, explaining that the drug was

not working. Santos prescribed a medication to help Robertson sleep. Later that month,

1 A Magistrate Judge conducted the proceedings with the consent of the parties. 2 Robertson had an x-ray and began prescribed physical therapy. On August 9, the

physical therapist told Robertson that he believed his pain was coming from a swollen

disc near his spinal cord, but that an MRI would be needed to be sure.

On August 30, Robertson again saw Santos, with Hice present. He explained that

the physical therapy was making his pain worse and requested pain medication. He also

told them what the physical therapist had said about a swollen disc and requested an

MRI. Santos told Robertson that his x-ray appeared normal and that an MRI was not

needed. Robertson alleged that Hice said that the physical therapist’s recommendation

“doesn’t matter” because he is not a doctor. See Am. Complaint, ECF No. 45 at 7.

Robertson was denied pain medication and told to purchase Motrin from the commissary.

He filed a grievance that same day, in which he reported that the two defendants “became

very hostile stating [their] diagnosis is all that counts,” and that he was “kicked out of the

office.” See ECF No. 45-1 at 1.

Robertson was then temporarily transferred to Dauphin County Prison for a reason

unrelated to the claims in this case. There, he was seen by medical staff and referred to a

specialist at Hershey Medical Center. The specialist told Robertson that he believed he

had a collapsed disc, and that he suspected surgery was necessary, but that an MRI was

needed to confirm the diagnosis. Robertson was returned to SCI Greene on January 12,

2017, before the MRI could be completed. He alleged that, upon his return, he informed

Defendant Valley via request slip that he needed an MRI but received no response. He

3 also told other SCI Greene medical staff about his need for an MRI during a sick call

visit. Robertson’s family tried to contact Valley multiple times, but no action was taken.

His family called Hershey Medical Center and got the hospital to send his records to SCI

Greene.

On February 9, 2017, Robertson was informed that he was scheduled for an MRI.2

However, he alleged that the SCI Greene medical staff ordered the wrong MRI, and it

was rescheduled for July 14, 2017. The MRI was performed on the rescheduled date.

Robertson had surgery on August 2, 2017. He asserts that the defendants’ delayed

treatment caused him permanent nerve and muscle damage. Robertson Br. at 15.

The defendants moved to dismiss Robertson’s amended complaint for failure to

state a claim. On October 2, 2019, the District Court granted the defendants’ motions,

concluding (1) that Robertson had failed to allege that Gilmore or Shawley were liable

under § 1983 because they lacked personal involvement in Robertson’s medical

treatment; (2) that Robertson had failed to state an Eighth Amendment claim against

Valley, Santos, or Hice; and (3) that further amendment of Robertson’s complaint would

be futile. After the District Court denied his motion pursuant to Federal Rule of Civil

Procedure 60(b),3 Robertson appealed.

2 In his amended complaint, Robertson did not state who ordered the MRI, who informed him that he was scheduled for an MRI, or when the MRI was originally meant to take place. 3 We will not review this ruling because Robertson does not challenge it on appeal. See 4 II.

We have jurisdiction under

, and we exercise plenary review over

the District Court’s dismissal of Robertson’s complaint. See Newark Cab Ass’n v. City

of Newark,

(3d Cir. 2018). “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 and citation omitted). We construe all allegations in the light most

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

(3d Cir. 2012).

Additionally, we may affirm on any ground supported by the record. See Munroe v.

Cent. Bucks Sch. Dist.,

(3d Cir. 2015).

III.

Robertson argues that the District Court erred in concluding that he failed to state

a § 1983 claim against Defendants Gilmore, Shawley, and Valley because he did not

allege their personal involvement as required under Rode v. Dellarciprete,

(3rd Cir. 1988). We disagree. Non-medical prison officials cannot “be charge[d]

with the Eighth Amendment scienter requirement of deliberate indifference” when the

“prisoner is under the care of medical experts.” Pearson v. Prison Health Serv.,

(3d Cir. 2017) (quoting Spruill v. Gillis,

(3d Cir. 2004)).

In re Wettach,

(3d Cir. 2016) (holding that arguments not raised in an appellant’s opening brief are forfeited). The Rule 60(b) motion was filed within 28 days of when the District Court’s order dismissing Robertson’s complaint was entered, thus bringing up the underlying case for review. See Fed. R. App. P. 4(a)(4)(A)(vi). 5 Here, Robertson pleaded that he was under the care of medical professionals for the

duration of the alleged events. And although “[a] high-ranking prison official can expose

an inmate to danger by failing to correct serious known deficiencies in the provision of

medical care to the inmate population,” Barkes v. First Corr. Med., Inc.,

(3d Cir. 2014), reversed on other grounds by Taylor v. Barkes,

(2015),

Robertson did not identify a supervisory policy, practice, or custom that caused him

harm, see Sample v. Diecks,

(3d Cir. 1989). Thus, the District

Court was correct to dismiss Robertson’s claims as to Defendants Gilmore, Shawley, and

Valley.4

We also disagree with Robertson’s argument that the District Court erred in

dismissing his complaint as to Defendants Santos and Hice. To succeed on an Eighth

Amendment medical needs claim, an inmate must demonstrate (1) that the defendants

showed “deliberate indifference” to his medical needs, and (2) that those needs were

“serious.” Pearson,

. Here, the parties do not dispute that Robertson

4 Although Defendant Valley was the medical director of SCI Greene during the alleged events, he was a “high-ranking prison official,” see Barkes,

, and Robertson was not under his direct care, see Spruill,

; see also Rode,

(concluding that an administrator reviewing an inmate grievance does not rise to the level of “personal involvement” necessary to allege a § 1983 claim). Besides, Robertson failed to allege that Valley exhibited “a mental state of deliberate indifference” toward him. See Spruill,

. Robertson stated that he notified Valley of his need for an MRI after he returned to SCI Greene on January 12, 2017. Although Robertson alleged that Valley never responded to his or his family’s attempts to contact him, Robertson was scheduled for an MRI on February 9, 2017, less than one month after Valley became aware of Robertson’s medical needs. 6 alleged a serious medical need, and we agree that a collapsed spinal disc that requires

surgical treatment is, without question, “serious.” See Atkinson v. Taylor,

(3d Cir. 2003) (explaining that a medical need is “serious if it has been diagnosed by

a physician as requiring treatment”).

However, Robertson failed to allege sufficient facts to show that Defendants

Santos and Hice acted with deliberate indifference. Although Robertson pleaded that the

defendants’ treatment choices resulted in undue pain and permanent nerve and muscle

damage, he was not denied medical care. On the contrary, Robertson alleged that he

received continuous care from the defendants. Where, as here, a prisoner does not allege

the total denial of medical care but that the medical care he received was inadequate,

there are two questions we ask when assessing deliberate indifference: (1) whether the

care the prisoner received was, in fact, inadequate, and (2) whether the defendants

possessed the requisite state of mind in delivering the care. Pearson, 850 F.3d. at 535–36.

Robertson’s claim fails on the second prong. Regardless of whether he received

inadequate care, he failed to allege that Defendants Santos and Hice showed more than

negligence or medical malpractice in making their treatment decisions. Rouse v. Plantier,

(3d Cir. 1999) (“It is well-settled that claims of negligence or medical

malpractice, without some more culpable state of mind, do not constitute deliberate

indifference.”). While Robertson alleged that his care was delayed, he failed to plead that

the delay was “deliberate” or for “non-medical reasons.” See Durmer v. O’Carroll, 991

, 68–69 (3d. Cir. 1993). Rather, he alleged that the defendants refused his initial

requests for pain medication and an MRI for medical reasons, e.g., on the basis of their

examination of him and Robertson’s normal-looking x-ray. See Pearson,

(explaining that we are disinclined to second-guess medical professionals’ expertise).

And Robertson’s allegations that Santos and Hice disparaged his physical therapist’s

opinion and were hostile toward him do not rise to the level of intentional maliciousness

or wantonness required to state a violation of the Eighth Amendment. See Spruill,

. Thus, we conclude that Robertson failed to allege sufficient facts to survive

Santos’ and Hice’s motions to dismiss.

IV.

Accordingly, we will affirm the judgment of the District Court.

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