Martin Bramson v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 1971 , that prison…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1823
________________
MARTIN BRAMSON,
Appellant
vs.
S.M. SULAYMAN, M.D. Medical Officer, a medical doctor in his individual capacity;
M.D. J. CHUNG, Medical Officer, a medical doctor in his individual capacity; FNU
LORANTH, M.D. Clinical Director, a medical doctor in his individual capacity; S.P.A.
Patel, Hospital Administrator, in his individual capacity; M. MANGALINDAN, Mid-
Level Practitioner, in his individual capacity; MLP E. MAGALLON, Mid-Level
Practitioner, in his individual capacity; UNITED STATES OF AMERICA
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.N.J. Civ. No. 04-cv-5196)
District Judge: Honorable Noel L. Hillman
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 12, 2007
BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES
Filed: October 17, 2007
_______________________
OPINION
_______________________
PER CURIAM.

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2
Martin Bramson appeals pro se from the District Court’s dismissal by
summary judgment of his claims for inadequate medical care under the Eighth
Amendment and medical malpractice under New Jersey law. For the reasons that follow,
we will affirm.
I.
Bramson’s complaint concerns the medical care he received while
incarcerated in a federal prison in New Jersey. According to Bramson, prison doctors
prescribed medication for his lung infections, but those treatments were ineffective
because the doctors failed to diagnose him with heart disease. Bramson further claims
that prison doctors delayed his access to an outside specialist, and that, by the time he saw
the specialist and was properly diagnosed with heart disease, he required immediate
hospitalization and the installation of a pacemaker and electric defibrillator. Bramson
alleges that he has suffered permanent heart and lung damage, has a reduced life
expectancy, and is unable to be as physically active as he was in the past. On the basis of
these allegations, Bramson asserted (1) an Eighth Amendment claim, under Bivens v. Six
Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that prison
doctors had been deliberately indifferent to his serious medical needs, and (2) a Federal
Tort Claims Act (“FTCA”) claim for medical malpractice under New Jersey state law.
Defendants moved for summary judgment, arguing that they were entitled
to qualified immunity from Bramson’s Eighth Amendment claim and that Bramson’s
malpractice claim was barred as a matter of law because he failed to serve an affidavit of

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1 We have jurisdiction pursuant to 28 U.S.C. § 1291. Defendants filed voluminous
medical records with their motion but, because no discovery had been taken, the District
Court restricted its review to the face of the complaint. Our review is plenary. See
Snyder v. Pascack Valley Hosp., 303 F.3d 271, 273 (3d Cir. 2002); Leveto v. Lapina, 258
F.3d 156, 161 (3d Cir. 2001).
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merit as New Jersey law requires. The District Court granted the motion and dismissed
both claims with prejudice. We will affirm.1
II.
A. Bramson’s Eighth Amendment Claim
The District Court dismissed Bramson’s Eighth Amendment claim because
it concluded that defendants were shielded by qualified immunity. We agree. In
assessing qualified immunity, courts ask (1) whether a plaintiff has alleged a violation of
a constitutional right, and, if so, (2) whether the right was clearly established, such that a
reasonable person would understand that their actions were unlawful. See Leveto, 258
F.3d at 162. The District Court dismissed Bramson’s claim against four of the five
defendants under the first of these prongs and his claim against the remaining defendant
(Dr. Loranth) under the second. We believe that Bramson failed to state an Eighth
Amendment claims against any of the defendants.
Inadequate medical care violates the Eighth Amendment only when prison
doctors act with “deliberate indifference” to a prisoner’s serious medical needs; mere
medical malpractice is not enough. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
Here, Bramson’s complaint states nothing more than a claim for medical malpractice (a

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conclusion underscored by his briefs on appeal). Bramson’s complaint makes clear that
the defendants treated him on many occasions. He claims that those treatments proved
ineffective and that defendants negligently failed to diagnose his heart condition, but
those allegations do not state an Eighth Amendment claim. See id. at 107-08 & n.16.
We believe that the same applies to Dr. Loranth. According to Bramson,
Dr. Loranth implemented a Bureau of Prisons policy allowing prisoners outside
consultation only when their medical situation turns “critical.” It is true that a delay in
rendering necessary medical care for non-medical reasons can constitute deliberate
indifference under certain circumstances. See Natale v. Camden County Corr. Facility,
318 F.3d 575, 582 (3d Cir. 2003). Here, however, Bramson does not allege that Dr.
Loranth (or any of his other doctors) actually knew or believed that treatment by an
outside physician was necessary but intentionally delayed it. Instead, he alleges that he
first saw Dr. Loranth the same month he was sent to an outside consultant, and that Dr.
Loranth told him that the consultation already had been ordered. (Compl. ¶ 21.)
Moreover, Bramson does not claim that the alleged policy is unconstitutional.
Accordingly, Bramson failed to state an Eighth Amendment claim against any of the
defendants.
B. Bramson’s Malpractice Claim
The District Court dismissed Bramson’s malpractice claim for failure to

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2 The affidavit of merit requirement applies to malpractice claims under New Jersey
law in federal court. See Chamberlain v. Gianpapa, 210 F.3d 154, 161 (3d Cir. 2002).
Chamberlain was a diversity jurisdiction case, but the FTCA, under which the District
Court had jurisdiction here, also requires the application of state law. See 28 U.S.C. §
1346(b)(1); Gould Elec., Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000).
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serve an affidavit of merit as required by New Jersey law.2 We agree with that
determination as well. In malpractice cases, New Jersey law requires plaintiffs to serve,
within a certain period of time, an affidavit of merit by an appropriate licensed person
stating that there is a reasonable probability that each defendant’s conduct fell outside
acceptable professional standards. See N.J. Stat. Ann. § 2A:53A-27. Failure to comply
with these requirements is deemed a failure to state a claim. See N.J. Stat. Ann. §
2A:53A-29; Chamberlain, 210 F.3d at 160.
In this case, Bramson served a “certification” signed by a licensed physician
(his brother). There is some dispute about whether Bramson served it on time. Even
giving him the benefit of the doubt and assuming that he did, however, we agree with the
District Court that the certification is deficient. The certification opines merely that
“medical malpractice was committed upon Martin Bramson” without mentioning any of
the defendants, let alone specifying what each did or opining that any particular
defendant’s conduct fell outside acceptable professional standards. Such a generalized
certification does not comply with the statute. See Fink v. Thompson, 772 A.2d 386,
391-92 (N.J. 2001) (holding non-compliant an affidavit that failed to set forth a
“reasonable probability that at least one claim concerning each defendant has merit” and

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“failed to include specific reference” to a defendant physician). For the same reason, the
certification does not generally comply with the purpose of the statute, and thus cannot be
saved by the doctrine of substantial compliance. Cf. id. at 391-92 (finding substantial
compliance where plaintiff had served, in addition to non-compliant affidavit, an
extensive pre-suit expert report regarding a physician’s conduct). Bramson took no other
steps to comply with the affidavit of merit requirement here.
For these reasons, we will affirm the District Court’s judgment.

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