Willie Riddick v. Dr. Marsha Modeny

BLD-366 NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1645
________________
WILLIE RIDDICK,
Appellant
v.
DR. MARSHA MODENY;
MARVA CERULLO;
PRISON HEALTH SERVICES, INC.
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-01095)
District Judge: Honorable Malcolm Muir
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
or Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 7, 2007
Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: October 9, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Willie Riddick, a prisoner, appeals from the order of the United States District
Court for the Middle District of Pennsylvania granting the defendants’ motion to dismiss

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The caption has misspelled Doctor Modery’s name as “Modeny.” We will refer to1
her throughout this opinion by her correctly spelled name, Modery.
2
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Riddick filed a civil rights complaint alleging that he was diagnosed with follicular
eczema and was prescribed medications in 2003. At the prison, he was given samples and
substitute medications because the prescribed medications were not on the prison’s
approved medication list and were too costly. He was released in 2004. Shortly after his
re-commitment to prison in September 2005, Riddick saw Doctor Modery for his skin
problem; she prescribed selenium sulfate. A few days later, he submitted a request to1
Marva Cerullo, SCI-Mahoney Health Care Administrator, asking for “plexion cleanser,”
one of the original medications prescribed by the dermatologist in 2003, that seemed to
work for him. Cerullo denied the request because Riddick’s skin problem “was okay.” In
early October 2005, two weeks after he started treating with selenium sulfate, Riddick
suffered severe burns to his face and neck. He was seen on sick call, treated, and given
an antibiotic ointment for the burns, which he complains did not work.
Riddick claims that the defendants were deliberately indifferent to his serious
medical needs in violation of his Eighth Amendment rights. Specifically, he claims that
the defendants knew that he needed to be treated with plexion cleanser and deliberately
failed to provide it for non-medical reasons. He asserts that Doctor Modery failed to
warn him of the risk of serious burns caused by selenium sulfate and failed to promptly

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treat him for it.
The defendants filed a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, to which Riddick responded. The
District Court granted the Rule 12(b)(6) motion, holding that absent any allegation from
which the court could infer Prison Health Services’s direct involvement in the alleged
deprivation of his constitutional rights, it was not liable on a theory of respondeat
superior. See Gay v. Petsock, 917 F.3d 768, 771 (3d Cir. 1990). The District Court also
ruled that the allegations against Cerullo, assumed to be true, did not lead to an inference
that Cerullo was deliberate indifferent to Riddick’s medical needs. As for Doctor
Modery, the District Court noted that Riddick’s allegations indicated that the doctor did
not delay in providing Riddick dermatological treatment. Nor was there any allegation
from which the District Court could infer deliberate indifference in the doctor’s failure to
warn of risk of serious burns with selenium sulfate treatment. The District Court
dismissed the Complaint with prejudice for failure to state a claim. Riddick filed a timely
notice of appeal, followed shortly thereafter by a timely motion for relief from judgment,
which the District Court treated as a timely filed motion for reconsideration and denied.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Riddick has been granted
leave to proceed IFP on appeal. Under § 1915(e)(2)(B), the Court must dismiss an appeal
if it indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Substantially for the same reasons set forth by the District Court, we conclude that

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Riddick’s civil rights complaint was properly dismissed for failure to state a claim. As
the District Court correctly noted, “[i]t is well-settled that claims of negligence or medical
malpractice, without some more culpable state of mind, do not constitute ‘deliberate
indifference.’” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); see also White v.
Napoleon, 897 F.2d 103, 108 (3d Cir.1990) (concluding that mere medical malpractice
cannot give rise to a violation of the Eighth Amendment). The protections afforded
prisoners by the Due Process Clause of the Fourteenth Amendment are not triggered by
the mere negligence of prison officials. See Daniels v. Williams, 474 U.S. 327 (1986).
Likewise, Eighth Amendment liability under 42 U.S.C. § 1983 requires “more than
ordinary lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475
U.S. 312, 319 (1986). Only “unnecessary and wanton infliction of pain” or “deliberate
indifference to the serious medical needs” of prisoners is sufficiently egregious to rise to
the level of a constitutional violation. White, 897 F.2d at 108-09 (quoting Estelle v.
Gamble, 429 U.S. 97, 103 (1976)).
The District Court properly disposed of Riddick’s Eighth Amendment claim
against Doctor Modery. Assuming the truth of Riddick’s allegations, as we must, there
are no allegations from which we can conclude that Doctor Modery delayed treating him.
According to Riddick’s Complaint, he was seen and treated on the day he arrived at sick
call. Modery’s failure to warn Riddick of the risk of burns to his skin from the treatment
she prescribed amounts to mere negligence, which is not cognizable under § 1983. See

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Daniels, 474 U.S. 327. As for defendant Cerullo, although Riddick alleges that she
should have allowed him to obtain a prescription that was written two years earlier, these
allegations are simply not enough, in and of themselves, to state a claim under the Eighth
Amendment. See Estelle, 429 U.S. at 107. In short, although Riddick would have
preferred a different course of treatment, his preference does not establish a cause of
action. Inmates of Allegheny Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (noting that
courts will “disavow any attempt to second-guess the propriety or adequacy of a particular
course of treatment . . . which remains a question of sound professional judgment”
(citations omitted)). For the reasons set forth by the District Court, we agree that Riddick
failed to allege any direct involvement by Prison Health Care Services, Inc., and thus his
complaint against them was also properly dismissed for failure to state a claim.
Accordingly, because Riddick’s appeal lacks arguable merit, we will dismiss it
pursuant to § 1915(e)(2)(B). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

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