Michael J. Ascenzi v. Doctor R. Diaz

ALD-357 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2289
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MICHAEL J. ASCENZI,
Appellant
v.
DOCTOR R. DIAZ; J. MATALONI;
DR. GUNNAR KOSEK
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On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-01656)
District Judge: Honorable Thomas I. Vanaskie
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Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
August 23, 2007
BEFORE: SLOVITER, CHAGARES and COWEN, CIRCUIT JUDGES.
(Filed: September 7, 2007)
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OPINION
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PER CURIAM
Appellant Michael Ascenzi, currently an inmate at the Retreat State Correctional
Institution (“SCI-Retreat”) in Hunlock Creek, Pennsylvania, filed an in forma pauperis
civil rights complaint against Dr. Gunnar Kosek, a physician at the Luzerne County

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Prison, Dr. Renato Diaz, a contract physician at SCI-Retreat, and Joseph P. Mataloni,
SCI-Retreat’s Health Care Administrator. Ascenzi alleged that, while he was
incarcerated at the Luzerne County Prison and SCI-Retreat, defendants were deliberately
indifferent to his medical needs, in particular, his need for narcotic pain relievers and
corrective surgery for two herniated cervical discs. Ascenzi also asserted that, on two
separate occasions, defendants were deliberately indifferent to his skin infections.
Ascenzi sought medical attention in the form of an orthopaedic consultation and surgery
for his neck, as well as compensatory and punitive damages.
In an order entered on March 30, 2007, the District Court granted defendants’
motions to dismiss for failure to state a claim upon which relief may be granted. The
court reasoned that the action could not proceed because Ascenzi’s allegations of
inadequate care did not rise to the level of deliberate indifference, see Farmer v. Brennan,
511 U.S. 825, 842 (1994), and because defendant Mataloni was aware that Ascenzi was
being treated by the institution’s physician for various ailments. Mataloni could not be
found deliberately indifferent under the Eighth Amendment simply because he deferred to
the medical judgment of Ascenzi’s treating physician. See Durmer v. O’Carroll, 991 F.2d
64, 69 (3d Cir. 1993). Ascenzi appeals and has been granted leave to proceed in forma
pauperis on appeal.
Deliberate indifference to serious medical needs is a violation of the Eighth
Amendment and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97
(1976). However, mere disagreements over the type or amount of care provided do not

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state an Eighth Amendment claim. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
See also United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir.
1979) (“Where 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.”). Ascenzi’s
complaints were evaluated by the medical staff, and he received treatment in the form of
medications (including pain medications and antibiotics) and diagnostic x-rays. The
circumstances alleged do not amount to deliberate indifference to serious medical needs.
We further agree with the District Court that granting Ascenzi leave to amend the
complaint a second time would have been a futile act. See Grayson v. Mayview State
Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
Accordingly, we will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i) as it is
lacking in legal merit. Neitzke v. Williams, 490 U.S. 319 (1989).

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