Steven Rex v. Lehigh County Prison

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DLD-154 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4299
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STEVEN REX,
Appellant
v.
LEHIGH COUNTY PRISON;
WARDEN MEISEL
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5:12-cv-02002)
District Judge: Honorable Mary A. McLaughlin
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 14, 2013
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: March 27, 2013)
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OPINION
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PER CURIAM
Pro se appellant Steven Rex appeals the District Court’s order dismissing his complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have jurisdiction pursuant to
28 U.S.C. § 1291 and exercise plenary review over the District Court’s order. See Santiago v.

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Warminster Twp., 629 F.3d 121, 128 & n.4 (3d Cir. 2010). Because the appeal does not
present a substantial question, we will summarily affirm the District Court’s judgment. See 3d
Cir. L.A.R. 27.4; I.O.P. 10.6.
Rex, a state prisoner, filed a complaint in the District Court against Lehigh County
Prison and its warden, Dale A. Meisel, alleging that they violated his Eighth Amendment rights
by providing him with inadequate medical care. More specifically, he claimed that on July 8
2011, he was involved in a motorcycle accident and he fractured his tibia and tore the
surrounding ligaments and tendons. That night after the accident, Rex was arrested for driving
under the influence. Because Rex was injured, the jail would not accept him and he was taken
to Sacred Heart Hospital. He alleged that Prime Care, Inc., the company that provides medical
treatment within the prison, was unable to handle his injury and scheduled him for outside
medical services. Overall, Rex alleged that the defendants denied him continuing medical
treatment and therapy and that he has been permanently disabled as a result.
The defendants filed motions to dismiss on the grounds that Lehigh Prison was not a
legal entity that could be sued and that there were no allegations that Warden Meisel was
involved in Rex’s medical treatment. The District Court concluded that Rex’s complaint failed
to state a claim, but because Rex was pro se, the District Court held three telephone
conferences on the record to determine whether Rex had additional facts that could make out a
claim for inadequate medical care. The District Court also facilitated additional medical
treatment for Rex, urging him to put in a sick call for requests for an MRI and for acid reflux.
According to the transcripts of the phone conferences, Rex received an MRI and he was sent
out for a physical therapy evaluation and given an exercise program to increase the strength in

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his leg. Rex also received medication for the acid reflux. After these phone conferences, the
District Court dismissed Rex’s complaint with prejudice, finding that it would be futile to
allow him to amend his complaint to add Lehigh County or Prime Care as defendants. Rex
timely appealed.
We agree with the District Court’s determination that Rex’s complaint fails to state a
cause of action and that any leave to amend would be futile. In the context of Eighth
Amendment claims based on medical care, a plaintiff must demonstrate deliberate indifference
to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). “To act with deliberate
indifference to serious medical needs is to recklessly disregard a substantial risk of serious
harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). For instance, a plaintiff may make
this showing by establishing that the defendants “intentionally den[ied] or delay[ed] medical
care.” Id. (quotation marks omitted). However, “[w]here a prisoner has received some
medical attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize claims which
sound in state tort law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2
(3d Cir. 1979) (internal quotation marks omitted).
Here, Rex has not asserted deliberate indifference on the part of prison officials.1 First,
we agree with the District Court that Rex has not alleged any personal involvement in his
1 To the extent that Rex claims Sacred Heart Hospital improperly treated his injuries, Sacred
Heart Hospital is not run by the prison or Prime Care and, therefore, it is not a state actor for
purposes of Rex’s Eighth Amendment claim. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d
Cir. 1993) (holding that a § 1983 claim has two essential elements: (1) the conduct
complained of must be “committed by a person acting under color of state law”; and (2) this
conduct must “deprive[] a person of rights, privileges, or immunities secured by the

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medical treatment by Warden Meisel. See Polk County v. Dodson, 454 U.S. 312, 325 (1981)
(holding that liability in a § 1983 action must be predicated on personal involvement, not on
the basis of respondeat superior). Second, Rex has acknowledged that the prison provided him
treatment, as evidenced by the fact that he was taken to the hospital for treatment when he was
first arrested, and upon his request he was taken for an MRI and given medication for his acid
reflux. We agree with the District Court that such conduct does not provide any basis for
deliberate indifference. We are satisfied that amendment to Rex’s complaint would be futile,
and therefore conclude that the District Court properly dismissed the complaint without
providing leave to amend.2 See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002). Accordingly, we will summarily affirm the District Court’s order dismissing Rex’s
complaint because the appeal presents no substantial question and we deny Rex’ motion for
appointment of counsel.
Constitution or laws of the United States” (internal quotation marks omitted)). Accordingly,
we focus on the actions of the prison officials and Prime Care in evaluating Rex’s claim.
2 On November 6, 2012, Rex filed a motion for leave to file an amended complaint. The
District Court denied the motion because at that point the case was closed. In any event, the
amendment, if allowed, would not have changed the outcome.

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