Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-8-2007
Mendez v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3097
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"Mendez v. PA Dept Corr" (2007). 2007 Decisions. Paper 1128.
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BLD-47 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3097
________________
SAMUEL MENDEZ,
Appellant,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS; PRISON HEALTH
SERVICES; DR. MARK BAKER; DR. FRAIDER
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00035)
District Judge: Honorable Sean J. McLaughlin
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
November 16, 2006
Before: MCKEE, FUENTES AND ROTH, CIRCUIT JUDGES
(Filed: May 8, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Samuel Mendez, an inmate at the State Correctional Institution at Albion,
Pennsylvania, appeals an order of the United States District Court for the Western District
of Pennsylvania dismissing his civil rights complaint. For the following reasons, we
conclude that the appeal is meritless and we will dismiss it under 28 U.S.C. §
1915(e)(2)(B).
Mendez injured his right arm and shoulder while employed moving rugs in the
prison medical department. Shortly after the injury occurred, he was examined by several
physicians including Dr. Conrad Fraider, an orthopedic specialist contracted by Prison
Health Services (“PHS”). Dr. Fraider concluded that Mendez’s injury was cosmetic in
nature and self-healing, and decided not to take an x-ray of the afflicted area or administer
an MRI. Mendez alleges that he visited another physician several months later for a
second opinion, and at that time received an x-ray that revealed a ruptured bicep tendon,
rotator cuff problems, bone spurs in the right shoulder, and problems with the shoulder
ball and socket. Mendez states that he continues to experience pain and that corrective
surgery is no longer a viable option. He claims that he would not be experiencing these
problems had he received proper treatment from prison medical personnel.
In 2005, Mendez filed suit under 42 U.S.C. § 1983 against the Pennsylvania
Department of Corrections (“DOC”), PHS, Dr. Fraider, and Dr. Mark Baker, another
physician affiliated with PHS, alleging that each defendant violated Mendez’s Eighth
Amendment rights by exhibiting deliberate indifference to his serious medical needs.
Each defendant moved to dismiss the complaint. Mendez then filed a motion to amend
his complaint to include more specific allegations against Dr. Baker, who allegedly
examined Mendez’s injury prior to Dr. Fraider. The matter was referred to a Magistrate
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Judge, who issued a Report and Recommendation (“R&R”) advising the District Court to
deny Mendez’s motion to amend as futile and grant the defendants’ motions to dismiss.
The District Court adopted the R&R in its entirety and ordered the case dismissed.
Shortly thereafter, Mendez submitted untimely objections to the Magistrate Judge’s
findings, which the District Court considered and rejected. Mendez then filed a “motion
to sustain complaint,” which was denied by the District Court. Mendez has appealed the
District Court’s order adopting the R&R. We have jurisdiction under 28 U.S.C. § 1291.
Because this Court has granted Mendez leave to proceed in forma pauperis, we must
dismiss the appeal if it lacks an arguable basis in law or fact. See 28 U.S.C. §
1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because Mendez is
proceeding pro se, we will liberally construe his pleadings. Alston v. Parker, 363 F.3d
229, 234 (3d Cir. 2004).
We agree with the R&R that the Eighth Amendment claims against Dr. Fraider and
Dr. Baker fail because Mendez’s allegations fall short of demonstrating deliberate
indifference. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Mendez does not
allege that the defendants intentionally refused to provide treatment or failed to exercise
medical judgment; he merely disputes the correctness of the medical decisions that were
made during the course of his treatment. At most, the alleged conduct evidences
professional negligence, which is not actionable as a constitutional violation. See
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987) (“[M]ere allegations of malpractice do not raise issues of constitutional import
3
. . . [n]or does mere disagreement as to the proper medical treatment support a claim of an
eight amendment violation.”). The R&R also correctly concluded that Mendez has not
stated a claim against PHS because the complaint does not indicate that this party had any
direct involvement in the alleged wrongful conduct, and respondeat superior is not a
recognized basis for liability under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988). Finally, Mendez’s claim against the DOC fails because a state
agency is not a proper party in a § 1983 action. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989); Latessa v. New Jersey Racing Comm’n, 113 F.3d 1313,
1316 n.2 (3d Cir. 1997). Moreover, the Eleventh Amendment precludes Mendez from
recovering money damages from a state agency such as the DOC. See Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
Because Mendez has failed to set forth allegations sufficient to state an Eighth
Amendment claim, the District Court correctly dismissed the entire complaint and denied
Mendez’s motion to amend. Thus, his appeal lacks merit and we will dismiss it under 28
U.S.C. § 1915(e)(2)(B)(I).
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