CLD-155 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1637 ___________

WILLIAM PLUMMER, Appellant

v.

WELLPATH; CORRECT CARE SOLUTIONS; DR. ROBERT MAXA; CHCA KIM SMITH; RNS GARY PRINKEY; DR. BARRY EISENBERG; CRNP ANDREW LESLIE; RN ESSONNO; DR. DANIEL WECHT; DR. RICHARD WILLIAMSON; SUPERINTENDENT OVERMEYER; DORINA VARNER; ASSISTANT KERI MOORE; JOSEPH SILVA, Director of Health Service; CRNP WILLIAM SUTHERLAND; SUPERINTENDENT DEREK OBERLANDER ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1-22-cv-00039) District Judge: Honorable Susan Paradise Baxter ____________________________________

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 June 8, 2023

Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges

(Opinion filed: June 26, 2023) _________

OPINION * _________

PER CURIAM

William Plummer, proceeding pro se, appeals from the District Court’s order

granting defendants’ motions to dismiss. We will summarily affirm.

Plummer, a state inmate currently housed at SCI-Coal Township, sued numerous

defendants, including Department of Corrections (“DOC”) administrators, SCI-Forest’s

medical service provider, employees of the medical service provider, and two

independent physicians, pursuant to

. Plummer alleged that, while he

was housed at SCI-Forest, all defendants violated the Eighth Amendment in failing to

adequately treat his serious back issues, and the medical defendants committed medical

malpractice under state law. Dkt. No. 68 at 19. He sought injunctive, compensatory, and

punitive relief.

at 19–20.

The District Court granted Plummer leave to file a supplement to his amended

complaint, Dkt. Nos. 147 & 149, and all defendants filed motions to dismiss, Dkt. Nos.

84, 105, 109, 121. A Magistrate Judge recommended granting the motions as to

Plummer’s Eighth Amendment claims, dismissing the Eighth Amendment claims with

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

2 prejudice, and declining to exercise supplemental jurisdiction over his state law claims. 1

Dkt. No. 172. Plummer then filed a motion for leave to further supplement his amended

complaint to add new defendants. Dkt. No. 185. The District Court, over Plummer’s

objections, adopted the Magistrate Judge’s recommendation in its entirety. Dkt. No. 189.

The Court denied Plummer’s motion to supplement without prejudice to his ability to

bring a new suit against the new defendants in the appropriate jurisdiction.

Plummer

filed this timely appeal. Dkt. No. 194.

We have jurisdiction under

. 2 We exercise plenary review over

the dismissal of the complaint. Chavarriaga v. N.J. Dep’t of Corr.,

(3d Cir. 2015). Upon review, we will affirm because no substantial question is presented

on appeal. See 3d Cir. L.A.R. 27.4.

1 One of the independent physicians filed a motion for summary judgment as to Plummer’s state law claim, which the Magistrate Judge recommended the Court dismiss as moot. Dkt. Nos. 143 & 172 at 36 n.6. 2 This Court has jurisdiction over this appeal even though a without-prejudice dismissal generally is neither final nor appealable. See Borelli v. City of Reading,

(3d Cir. 1976) (per curiam). In declining to exercise supplemental jurisdiction, the District Court dismissed Plummer’s state law claims without prejudice to Plummer’s ability to bring those claims in state court. Dkt. No. 189 at 21. Because Plummer cannot cure the lack of original subject matter jurisdiction, Borelli does not preclude the Court’s review. See

at 951–52; cf. Pa. Fam. Inst., Inc. v. Black,

, 162 (3d Cir. 2007) (per curiam) (“Borelli does not apply ‘where the district court has dismissed based on justiciability and it appears that the plaintiffs could do nothing to cure their complaint.’”) (citation omitted).

3 The District Court properly dismissed Plummer’s Eighth Amendment claims

against the medical defendants. As Plummer recounted, his medical providers addressed

his serious medical condition for seven years prior to the filing of his complaint, during

which they responded to his sick calls, prescribed him medication, and conducted

examinations and tests. White v. Napoleon,

, 108–09 (3d Cir. 1990) (“Only

‘unnecessary and wanton infliction of pain’ or ‘deliberate indifference to the serious

medical needs’ of prisoners are sufficiently egregious to rise to the level of a

constitutional violation.”) (citations omitted). Plummer’s mere disagreement with his

medical care does not state an Eighth Amendment claim. 3

.

The District Court also correctly dismissed Plummer’s Eighth Amendment claims

against the DOC administrators for lack of personal involvement. Although Plummer

alleged that these defendants had knowledge of his medical treatment because they

received and reviewed his medical records and grievances, such actions do not establish

personal involvement. 4 See Rode v. Dellarciprete,

, 1207–08 (3d Cir.

1988).

3 The District Court properly dismissed Plummer’s claims against the medical service provider because he failed to allege any facts about a policy or practice implicating the corporation, as required to hold a private corporation liable under § 1983. Natale v. Camden Cnty. Corr. Facility,

, 583–84 (3d Cir. 2003). 4 Despite Plummer’s objections, the District Court also correctly concluded that, given the defendants’ motions to dismiss, the Magistrate Judge properly denied Plummer’s requests to compel the production of documents. See Ashcroft v. Iqbal,

,

4 The District Court did not abuse its discretion in dismissing Plummer’s Eighth

Amendment claim with prejudice because amendment was futile. See Grayson v.

Mayview State Hosp.,

(3d Cir. 2002). The Court also did not abuse its

discretion in denying without prejudice Plummer’s motion to supplement based on

futility, as all the defendants Plummer sought to add should be named in a separate

lawsuit in the proper federal jurisdiction. See In re Burlington Coat Factory Sec. Litig.,

(3d Cir. 1997). Finally, as Plummer failed to state a claim under

federal law, the District Court acted within its discretion in declining to exercise

jurisdiction over supplemental state law claims. 5 See Doe v. Mercy Cath. Med. Ctr.,

(3d Cir. 2017).

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

685–86 (2009); Rutman Wine Co. v. E. & J. Gallo Winery,

(9th Cir. 1987) (“The purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints without subjecting them to discovery.”). 5 Given the decision not to exercise supplemental jurisdiction, the District Court properly dismissed the independent physician’s motion for summary judgment on Plummer’s state law claim without prejudice to the physician’s ability to assert the motion in state court.

5