DLD-167 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3668
___________
GREGORY ALTENBACH,
Appellant
v.
TONI IANUZZI, Nurse Practitioner; PHYSICIAN JOHN LISIAK;
PHYSICIAN JOSE BOGGIO;
PHYSICIANS ASSISTANT NICHOLLE BOGUSLAW;
KAREN HOLLY, Registered Nurse Supervisor; PHYSICIAN ANDREW J. DANCHA;
PHYSICIANS ASSISTANT MARIA LEAHY;
WEXFORD HEALTH SOURCES INC, Prison Healthcare provider
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-14-cv-01932)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 3, 2016
Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges
(Opinion filed: April 7, 2016)
_________
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.
Pro se appellant Gregory Altenbach appeals from the judgment of the United
States District Court for the Middle District of Pennsylvania in his § 1983 action. As the
appeal does not present a substantial question, we will summarily affirm the decision of
the District Court.
I.
Altenbach initiated this § 1983 action in 2014 against various medical personnel
from SCI-Mahanoy and SCI-Benner Township, alleging that these Defendants denied
him adequate medical care in connection a shoulder injury he suffered while exercising.
Altenbach claims that he was initially treated at sick call on May 22, 2013 by
Defendant Nurse Practitioner Tony Ianuzzi, complaining of pain, stiffness, and weakness
in his right shoulder resulting from an exercise injury. Altenbach claims that he had a
fist-sized depression in his shoulder, and that Ianuzzi diagnosed it as a strain and
prescribed muscle rub and Naprosyn. Altenbach returned to sick call on June 12, 2013
with his shoulder “feeling worse” and requested stronger medication, treatment by a
doctor, and an order that he be handcuffed only in the front. Altenbach claims Ianuzzi
denied all of these requests, stating they were “not needed.”
Altenbach returned again on June 27, 2013, and was seen by Defendant Physician
Jose Boggio. Altenbach claims that Boggio denied the same requests he made two weeks
earlier to Ianuzzi, but that Boggio acknowledged that his shoulder has “either atrophied
or shriveled up somewhere it shouldn’t be.” Altenbach returned two days later and was
seen this time by Defendant Physician Assistant Nicholle Boguslaw, at which time he
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offered the same complaints and requests previously made to Boggio and Ianuzzi.
Boguslaw noted that his shoulder “may have a deformity” and indicated he would be
“pulled out to triage for further evaluation.”
On July 7, 2013, Altenbach was treated again by Ianuzzi, at which time Altenbach
renewed his complaints of pain and stiffness and also renewed his previous requests.
Ianuzzi allegedly advised him that there was “no need” for these requests because he
would be x-rayed soon and provided stronger medication. Altenbach was x-rayed five
days later and the report indicates the presence of “bone demineralization,” but concludes
that “there is no radiographic evidence of acute disease in the right shoulder.” Ten days
after the x-rays, Altenbach was again seen by Ianuzzi, at which time Ianuzzi allegedly
denied Altenbach’s renewed requests and advised him that the x-rays did not reveal a
trauma injury. Ianuzzi administered a steroid injection the following day.
Four days after receiving the injection, on July 27, 2013, Altenbach was seen by
Defendant Physician John Lisiak and advised Lisiak of his increasing pain, his belief that
currently prescribed medications were not working, and his desire to be handcuffed only
in the front. Lisiak examined Altenbach’s shoulder and noted an “apparent atrophy . . .
below the scapula,” and also increased Altenbach’s dose of Naprosyn.
Less than two weeks later, Altenbach was seen again by Ianuzzi, who again denied
his previous requests, but advised Altenbach that he might be referred to physical
therapy. The next day Ianuzzi prescribed a liquid pain-killer. Four days later, Dr. Lisiak
re-examined Altenbach and allegedly advised him that potential treatments were limited
3
because the injury was “months old,” and that an MRI, not an x-ray, should have been
ordered because the “problem was related to muscle, not the bone.” This statement is not
present in the medical records.
A week later, on August 17, 2013, Altenbach was treated again by Boguslaw, who
observed a “muscular deformity of [the] scapular region” and noted that “PT [was]
ordered though RHU states is difficult to transport.” She also noted: “consider MRI if
atrophy not improved [with] PT.” On August 25, 2013, Boguslaw noted that “PT has
been denied per inmate” and prescribed Altenbach Trixacin, a pain-relieving cream.
Altenbach was transferred to SCI-Benner Township on September 2, 2013.
Ten days after arriving, Altenbach went to sick call and was seen by Defendant
Physician Andrew Dancha, who noted a “concave defect in scapular region” and
indicated he would review Altenbach’s records with Defendant Physician Assistant Maria
Leahy. The next day Altenbach was examined by Leahy, who observed “muscle
atrophy” and recommended physical therapy and a possible MRI. According to
Altenbach, she also advised him that “because [SCI] Mahanoy didn’t actually do
anything to treat the problem . . . the length of time that’s passed since the actual injury . .
. severely limits treatment.” There is no record of this statement in the medical records.
About forty days later, on October 23, 2013, Altenbach was seen by a physical
therapist, who observed “obvious muscle atrophy,” and issued Altenbach a physical
therapy plan. Three weeks later, Altenbach went to sick call and advised Defendant
Physician Assistant Laura Dunkle that the physical therapy was ineffective. Dunkle
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advised him he would be referred to an orthopedic specialist and for stronger pain meds.
A week later, on November 21, 2013, Altenbach was again seen by Dancha, who
allegedly advised Altenbach that his injury was permanent, but prescribed Prednisone and
Nortriptyline, an anti-depressant. Dancha also administered a pain-killing injection on
December 12, 2013.
On February 14, 2014, Altenbach was seen again by Leahy, who advised
Altenbach to continue the physical therapy regimen and allegedly advised him “the range
of motion will possibly correct itself.” On March 17, Dunkle prescribed Zostrix cream
for pain and advised Altenbach that “some discomfort is likely no matter what pain meds
are issued.” On April 9, 2014, Dancha examined Altenbach and noted the depression in
his shoulder was still present and prescribed Motrin for pain. Dancha saw Altenbach
again on May 18, 2014, and Dancha noted that the Nortriptyline was helping his
discomfort.
On July 1, 2014, Dancha ordered an MRI, which was performed on July 7, 2014.
The radiologist reviewing the MRI found that “the supraspinatus muscle is moderately
severely atrophied.” Altenbach alleges that Dancha later reported, after reviewing the
MRI results, that he had an “uncommon” nerve injury in his shoulder, and his treatment
prognosis would have been better had the injury been detected earlier. This statement is
not present in any of the medical records. On July 22, 2014 Dancha ordered another
physical therapy consultation, and on August 20, 2014, Altenbach was seen by a physical
therapist, who allegedly advised him that his “shoulder looked better than the first time.”
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On October 30, 2014, Dancha referred Altenbach for an Electromyogram study, which
was performed on January 7, 2015. The report concluded that “this study is consistent
with a significant, active right suprascapular neuropathy, especially involving the branch
to the infraspinatus muscle.”
In the meantime, on July 4, 2013, Altenbach began filing numerous grievances
related to his medical treatment, many of which Defendant Resident Nurse Supervisor
Karen Holly denied. Altenbach does not allege that Holly was otherwise personally
involved in his treatment, or treatment decisions.
On September 25, 2015, the District Court granted Holly’s 12(b)(6) motion to
dismiss, finding, among other things, that she lacked sufficient personal involvement in
the complained-of conduct. In the same order, the Court also granted the Medical
Defendants’1 motion for summary judgment, finding that they provided Altenbach
substantial care and that his claims amount to an improper attempt to second-guess the
adequacy of treatment. Altenbach filed a timely notice of appeal from this order on
October 29, 2015.2
II.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
dismissal under Rule 12(b)(6) using the same test that the District Court should have
applied and ask whether the complaint contains “sufficient factual matter; accepted as
1
“Medical Defendants” refers to all defendants except Karen Holly.
2
Altenbach delivered his notice to prison officials at SCI-Camp Hill on October 23,
2015.
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true; to state a claim to relief that is plausible on this face.” Fantone v. Latini, 780 F.3d
184, 186-193 (3d Cir. 2015) (citing Ashcroft v. Iqbal; 556 U.S. 662 678 (2009)). We also
exercise plenary review over the District Court’s award of summary judgment and apply
the same test the District Court should have utilized – whether the record “shows that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). In
applying this test, we must accept evidence presented by the non-movant as true and
draw all justifiable factual inferences in his favor. Id. We may summarily affirm any
decision of the District Court where “it clearly appears that no substantial question is
presented or that subsequent precedent or a change in circumstances warrants such
action.” 3d Cir. I.O.P. 10.6 (2015).
The District Court accurately observed that the complaint fails to set forth any
specific allegations against Defendant Holly, let alone allegations that she was personally
involved in any of Altenbach’s treatment, or treatment decisions. To the extent that
Altenbach’s claim is based on Holly’s failure to direct or supervise subordinate medical
staff, the District Court correctly dismissed it as an improper theory of liability. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held
liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior.”). To the extent that his claim is based on Holly’s alleged failure to
satisfactorily resolve his grievances, the District Court was similarly correct in dismissing
it. See Rogers v. United States, 696 F. Supp. 2d 472, 488 (W.D. Pa. 2010) (citing Rode
7
v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988)) (“If a grievance official's only
involvement is investigating and/or ruling on an inmate's grievance after the incident
giving rise to the grievance has already occurred, there is no personal involvement on the
part of that official.”). Having determined that Holly lacks sufficient personal
involvement in Altenbach’s medical treatment claim, we conclude that the District Court
properly declined to exercise supplemental jurisdiction over Altenbach’s state law claim
against her.
In granting the Medical Defendants’ motion for summary judgment, the District
Court accurately observed that Altenbach received substantial medical treatment for his
shoulder injury at both correctional facilities and accurately characterized his claim as
“nothing more than his subjective disagreement with that medical care.”
Regarding the adequacy of the treatment, Altenbach received a number of
continuous and responsive medical interventions for more than a year including pain
medications, steroid injections, x-rays, an MRI, physical therapy, and ultimately an
Electromyogram, which revealed a nerve injury. These responses were predicated on the
reasonable professional opinions of the Defendants, seemingly confirmed by the MRI
results, that Altenbach’s injury was only muscular in nature. To the extent Altenbach
claims that this particular course of treatment was ineffective, this amounts to “[m]ere
disagreement as to the proper course of medical treatment,” which is insufficient to state
an Eighth Amendment claim. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (citing
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
8
Cir.1987)); See also Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978) (“Where the
plaintiff has received some care, inadequacy or impropriety of the care that was given
will not support an Eighth Amendment claim.”).
Concerning the timeliness of the interventions, the gist of Altenbach’s claim is that
if his nerve injury had been detected earlier along, his treatment plan, and prognosis,
might have been different. Altenbach acknowledges, however, that the purported nerve
injury revealed by the Electromyogram was “uncommon,” so the failure of the
Defendants to recognize the possibility of such an injury, and order an Electromyogram
study to diagnose it, amounts, at worst, to medical malpractice, which is not actionable
under the Eighth Amendment. Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993)
(“[M]edical malpractice does not become a constitutional violation merely because the
victim is a prisoner.”).
The earliest indication of a nerve injury in the medical records is found in the
Electromyogram study report issued on January of 2016. Even if we credit Altenbach’s
unsubstantiated allegation that Dancha reported the possibility of a nerve injury in July of
2014 – about four months before he ordered the Electromyogram study – his claim would
still fail because he has offered no “verif[ied] medical evidence . . . to establish the
detrimental effect of [the] delay,” as he must do to support a delayed treatment claim.
Hill v. Dekalb Rg'l Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994) (overruled
on other grounds). He has offered, instead, only bare allegations that his prognosis might
have been different had the injury been earlier detected. Such speculation, without
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additional evidentiary support, is insufficient to survive a motion for summary judgment. 3
See Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (“[A] non-moving
party may not avert summary judgment by baldly contesting his adversary's factual
allegations.”); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968)
(Plaintiff cannot rest on his allegations to get to a jury without “any significant probative
evidence tending to support the complaint.”).
Regarding the denial of Altenbach’s requests to be cuffed only in the front, we
find no error in the District Court’s determination that he failed to establish a serious
medical need in connection with this request. As the District Court accurately observed,
several medical notes indicated that he had full range of motion and was exercising and
doing pushups at the time of the requests. Having determined that the District Court
properly dismissed the Eighth Amendment claim against the Medical Defendants, we
conclude that the Court properly declined to exercise jurisdiction over Altenbach’s state
law claim.
3
In the District Court, Altenbach cited LeMarbe v. Wisneski, 266 F.3d 429, 440 (6th Cir.
2001) for the proposition that a “failure to make timely referral to [a] specialist or tell [a]
patient to seek one out” constitutes deliberate indifference. LeMarbe, however,
addressed a physician’s failure to immediately refer a prisoner to a specialist, following
gallbladder surgery, when the physician observed five liters of bile in the prisoner’s
abdomen. In addition, the plaintiff there submitted an affidavit in opposition to
defendant’s motion for summary judgment from a physician who swore that “anyone
with a medical education and [ ] most lay people who encountered five liters of bile in a
patient's abdomen would have known that the bile in LeMarbe's abdomen was due to a
leak and that such condition posed a substantial risk of serious harm to LeMarbe if the
leak was not closed or stopped before permanent damage occurred.” Id. at 438 (emphasis
in original). Altenbach has submitted no similar evidence here to indicate such a pressing
need for immediate referral.
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Accordingly, we will summarily affirm the decision of the District Court.
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