dissenting.
I cannot agree with the majority that the complaint meets our established standard of standard of “deliberate indifference.” As the opinion of the Magistrate Judge recites, Mutschler
“... does not allege that Defendant Ma-lena deliberately exposed him to latex on the two occasions at issue, and his only specific allegation regarding Defendant Overton is that she assured him after the first time he was exposed to latex that it would not happen again. His allegations against each defendant sound in negligence and do not rise to an Eighth Amendment violation. Plaintiff does state in his Amended Complaint that one of the defendants (he could be referring to either Malena or Overton) ‘was reckless and indifferent with her patient care and [his] special medical need[.]’ [ECF No. 18 at p. 1]. This rote allegation — which he made in his Amended Complaint in response to Defendants’ contention that he was making a claim of negligence only — does not save his Eighth Amendment claim from dismissal.”
I would affirm the judgment dismissing the plaintiffs amended complaint, as I cannot conclude that he has alleged a constitutional violation.