NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4526
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JESSE VELASQUEZ,
Appellant
v.
COMMISSIONER GEORGE W. HAYMAN;
CHIEF ADMINISTRATOR KAREN BALICKI;
DR. ALLEN MARTIN; LYNN KWEPP, Nurse Director;
DENISE JANE DOE, Nurse; TERRY JANE DOE, Nurse;
CORRECTIONAL MEDICAL SERVICES, (C.M.S.);
ST. FRANCIS MEDICAL CENTER;
SOUTH JERSEY MEDICAL CENTER
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:09-cv-03230)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 2013
Before: SMITH, GARTH and ROTH, Circuit Judges
(Opinion filed: November 20, 2013)
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OPINION
_________
PER CURIAM
Jesse Velasquez appeals pro se from the District Court’s order granting the
defendants’ motion for summary judgment. For the following reasons, we will affirm.
I.
Velasquez, a paraplegic, alleges that while he was a New Jersey state prisoner, the
following events occurred. In May 2008, Velasquez complained to a prison nurse that he
was experiencing swelling in his right leg and foot, but his complaint was ignored. A
month later, he was examined by a prison doctor, Dr. Allen Martin, who diagnosed a
blood clot but did not confirm this with an ultrasound. Instead, Dr. Martin prescribed
Velasquez two anticoagulants, injected a “blood thinner” into his stomach, and gave him
a lymphedema pump to stimulate blood flow and reduce the swelling. Over the next
three weeks, however, the bleeding worsened and spread to other areas of his body.
During that time, Dr. Martin discontinued the medications and the lymphedema pump.
Velasquez asked several times to be transferred to a hospital for more effective treatment,
but his requests were denied. On June 30, 2008, Velasquez met with the prison’s Nurse
Director, Joy Lynn Kwepp, and relayed his complaints to her. On July 1, 2008, when his
bleeding worsened, Dr. Martin finally transferred Velasquez to South Jersey Regional
Medical Center. Thereafter, Velasquez was transferred to St. Francis Medical Center.
In July 2009, Velasquez filed a complaint against Correctional Medical Services
(C.M.S.), St. Francis Medical Center, South Jersey Medical Center, and various doctors,
nurses and prison employees. He raised federal claims under 42 U.S.C. § 1983, including
allegations that the defendants were deliberately indifferent to his medical needs, and
2
Title II of the ADA, 42 U.S.C § 12132, and medical malpractice claims under New
Jersey law.
The District Court screened the complaint and dismissed claims against several
defendants.1 The four remaining defendants—Dr. Martin, Nurse Director Kwepp,
C.M.S., and St. Francis—moved for summary judgment. The District Court granted
summary judgment in favor of the defendants, determining that Velasquez failed to
exhaust his administrative remedies prior to commencing suit. The Court also noted that
Velasquez failed to state claims against Kwepp, C.M.S., and St. Francis, but it thought
the claims against Dr. Martin were more potentially meritorious. Velasquez timely
appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over
the District Court’s entry of summary judgment in favor of the defendants. See Saldana
v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Summary judgment is proper when,
viewing the evidence in the light most favorable to the nonmoving party and drawing all
1
The District Court dismissed Velasquez’s Eighth Amendment claims against two of the
originally-named defendants because they relied on principles of respondeat superior,
see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); it dismissed his failure-to-
train-or-supervise claims because he pointed to no facts suggesting (1) a deficiency in
training and (2) a causal connection between the deficiency and his injury, see Carter v.
City of Phila., 181 F.3d 339, 357 (3d Cir. 1999); and it dismissed his ADA claims, see 42
§ 12132, and state-law medical malpractice claim against South Jersey Regional Medical
Center for failure to allege that he suffered injury or damages resulting from his care at
that facility. Reviewing this order de novo, Gelman v. State Farm Mut. Auto. Ins. Co.,
3
inferences in favor of that party, no genuine issue of material fact exists. See Fed. R. Civ.
P. 56(c); Saldana, 260 F.3d at 231.
1. Dr. Martin
The record indicates that Dr. Martin was not deliberately indifferent to
Velasquez’s medical needs. Velasquez alleged that Dr. Martin improperly diagnosed and
treated his wounds, overmedicated him with anticoagulants and blood thinners, and
should have transferred him to a hospital sooner than he did. Velasquez admitted that Dr.
Martin did treat his condition, just not to his satisfaction. Mere disagreement, however,
between prison doctors and a prisoner about the proper course of treatment does not
evince the deliberate indifference necessary for an Eighth Amendment violation. See
Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). A
prison official is not deliberately indifferent unless he “(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).
Tellingly, the record does not indicate that Dr. Martin’s decisions were a result of
anything but medical judgment. See Lanzaro, 834 F.2d at 346; see also Inmates of
Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (noting that courts
583 F.3d 187, 190 (3d Cir. 2009), for substantially the reasons given by the District Court
we find no error in this judgment.
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generally will not gainsay the professional judgment of medical practitioners). And
Velasquez conceded that Dr. Martin was in fact treating him continuously. On June 11,
2008—the day that Dr. Martin learned of Velasquez’s bleeding and swelling—Dr. Martin
prescribed him medication and ordered blood testing to monitor the medication, and two
days later he ordered more blood testing. (Defs.’ Mot. for Summ. J. ¶¶ 25-26.) Dr.
Martin halted use of one of the anticoagulants shortly thereafter, discontinued use of the
lymphedema pump on June 24, 2008, and halted use of the other anticoagulant
approximately on June 28, 2008. (Defs.’ Mot. for Summ. J. ¶¶ 29, 35.) Throughout this
period, Dr. Martin had ordered several more blood tests and continued monitoring
Velasquez’s condition. (Defs.’ Mot. for Summ. J. ¶¶ 34-35.) Early in the morning on
July 1, 2008, when Velasquez’s bleeding worsened, Dr. Martin finally had him
transferred to South Jersey Regional Medical Center. (Defs.’ Mot. for Summ. J. ¶ 37.)
Velasquez does not contest these assertions, none of which imply deliberate indifference.
Accordingly, the record does not support Velasquez’s Eighth Amendment claim.
2. Kwepp
Likewise, the record does not support Velasquez’s Eighth Amendment claim
against Kwepp. He alleged that Kwepp was present on June 30, 2008, when he asked to
be taken to the hospital but was initially denied and that she was involved in the decisions
related to his condition. In his deposition, however, Velasquez claimed that he was suing
her because she supervised the nursing staff. (Defs.’ Mot. for Summ. J. ¶ 46.) But
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liability under § 1983 requires personal participation in unlawful conduct and “cannot be
predicated solely on the operation of respondeat superior.” Rode, 845 F.2d at 1207.
We also agree with the District Court that no genuine issue of material fact exists
as to Velasquez’s state medical malpractice claim against Kwepp.2 He failed to produce
an affidavit from a licensed medical professional, as is required in order to state a claim
of medical malpractice under New Jersey law. See N.J. Stat. Ann. § 2A:53A-27.
3. C.M.S. & St. Francis
Velasquez alleged that employees of C.M.S. and St. Francis exacerbated his
injuries because they were “just trying to find a shortcut for saving money from medical
services,” seeking to attribute those employees’ actions to C.M.S. and St. Francis. But
respondeat superior liability cannot attach to C.M.S. and St. Francis for the acts of their
employees. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (3d Cir.
2003); Rode, 845 F.2d at 1207. Rather, Velasquez needed to show that they had policies
or customs of denying necessary medical care. See Natale, 318 F.3d at 583-84. The
record is bereft of any facts suggesting that C.M.S. and St. Francis had such policies or
customs.
2
The District Court was permitted to retain supplemental jurisdiction over the state-law
claim. See 28 U.S.C. § 1367; Bright v. Westmoreland Cnty., 443 F.3d 276, 286 (3d Cir.
2006) (District Courts may exercise supplemental jurisdiction after dismissing federal
claims if “considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so”).
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For the reasons given, we will affirm the judgment of the District Court.3
3
Because Velasquez’s claims fail on the merits, we need not reach the question of
exhaustion.
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