Mills v. Rogers

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SELWYN MILLS, :

Plaintiff : No. 1:20-cv-00266

:

v. : (Judge Kane)

:

DR. ROGERS, et al., :

Defendants :

MEMORANDUM

Presently before the Court is Defendant Dr. Pujara (“Pujara”)’s motion to dismiss (Doc.

No. 55) pro se Plaintiff Selwyn Mills (“Plaintiff”)’s amended complaint (Doc. No. 52). The

motion is fully briefed and ripe for disposition. For the reasons that follow, the Court will grant

the motion.

I. BACKGROUND

A. Procedural History

Plaintiff, who is currently incarcerated at the State Correctional Institution Mahanoy in

Frackville, Pennsylvania (“SCI Mahanoy”), initiated the above-captioned case on February 14,

2020 by filing a complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants Dr. Rogers

(“Rogers”), Pujara, Dr. Chesonis (“Chesonis”), G. Travers (“Travers”), and six (6) John and Jane

Doe individuals. (Doc. No. 1.) Plaintiff also paid the full filing fee. (Id.) In an Order dated

February 19, 2020, the Court specially appointed the Clerk of Court to serve a copy of the

complaint, notice of lawsuit, request for waiver of service of summons, and waivers on

Defendants. (Doc. No. 7.) Defendant Pujara filed a motion to dismiss Plaintiff’s complaint on

April 28, 2020. (Doc. No 18.) After receiving an extension of time (Doc. Nos. 25, 26),

Defendant Rogers filed an answer to the complaint on June 12, 2020 (Doc. No. 35). On June 3,

2020, Plaintiff filed a notice of voluntary dismissal as to Defendants Travers, Dr. Jane Doe #2,

John Doe #3, Dr. John Doe #4, and Registered Nurse Jane Doe #2. (Doc. No. 32.)

In a Memorandum and Order dated August 4, 2020, the Court denied Defendant Pujara’s

motion to dismiss and directed him to file an answer to Plaintiff’s complaint within fourteen (14)

days. (Doc. Nos. 38, 39.) Specifically, the Court concluded that: (1) Plaintiff had adequately

alleged that Defendant Pujara was a state actor; (2) Plaintiff had set forth a plausible Fourteenth

Amendment due process claim regarding informed consent; and (3) Plaintiff had adequately

alleged an Eighth Amendment deliberate indifference claim. (Doc. No. 38 at 8-14.) On August

12, 2020, Defendant Chesonis filed a motion to dismiss or, in the alternative, for summary

judgment. (Doc. No. 42.) A day later, Plaintiff filed a motion for leave to file an amended

complaint (Doc. No. 45), to which he attached his proposed amended complaint. Plaintiff sought

leave to file an amended complaint because he “mistakenly identified Dr. Mathew Micelli as Dr.

Chesonis” and sought to identify Jane Doe #1 as Carey Ritsko and John Doe #1 as John

Steinhart. (Id. at 1-2.) He also sought to add Wellpath, a private corporation providing medical

care to inmates at SCI Mahanoy, and Jenna Williams, a physician’s assistant, as Defendants in

the above-captioned case. (Id.) Defendant Pujara filed his answer to Plaintiff’s initial complaint

on August 18, 2020. (Doc. No. 48.) In an Order dated August 31, 2020, the Court granted

Plaintiff’s motion for leave to file an amended complaint, directed service of the amended

complaint upon the newly named Defendants, denied Defendant Chesonis’ motion to dismiss or,

in the alternative, motion for summary judgment as moot, and directed Defendants Rogers and

Pujara to answer or otherwise respond to the amended complaint within fourteen (14) days.

(Doc. No. 53.) Defendant Pujara filed the instant motion to dismiss on September 14, 2020.

(Doc. No. 55.)

B. Summary of Plaintiff’s Amended Complaint

On August 7, 2017, Defendant Rogers referred Plaintiff to Defendant Pujara, a urology

and oncology specialist, for an evaluation and possible biopsy of Plaintiff’s prostate. (Doc. No.

52 ¶ 16.) Defendant Rogers’ referral was based upon significant increases in Plaintiff’s Prostate

Specific Antigen (“PSA”). (Id.) Defendant Micelli authorized that referral twelve (12) hours

after it was requested. (Id.) On August 22, 2017, Plaintiff was taken to Defendant Pujara’s

office, where Defendant Pujara conducted a physical examination and “issued orders for [a] PSA

test to be repeated in two weeks.” (Id. ¶ 17.)

On September 1, 2017, Plaintiff “submitted a § 2255 Petition for Writ of Habeas Corpus

wherein he voluntarily waived extradition in support of his request for speedy resolution of

federal criminal charges pending against him the United States District Court for the Northern

District of New York.” (Id. ¶ 18.) On September 20, 2017, Plaintiff received the results from

the blood test Defendant Pujara conducted on August 22, 2017. (Id.) Those results indicated a

“serum PSA of 19.” (Id.) On October 11, 2020, Defendant Rogers referred Plaintiff to

Defendant Pujara for an “off-site follow up office visit with procedures related to biopsy of the

prostate.” (Id. ¶ 19.)

On October 24, 2017, Plaintiff was transported to Defendant Pujara’s office, where “four

needle biopsies of the left and right side[s] of [his] prostate were collected.” (Id. ¶ 20.) The

samples were sent to the oncology department at the Schuylkill Medical Department. (Id.) They

were also sent to Genpath for a “solid tumor immunohistochemical analysis.” (Id.) After

Plaintiff returned to SCI Mahanoy, Defendant Rogers reviewed Defendant Pujara’s consult notes

and requested that Plaintiff be scheduled for a follow-up examination with Defendant Pujara on

November 7, 2017. (Id. ¶ 21.) Plaintiff alleges that Defendants Rogers and Micelli then failed to

ensure that Defendant Pujara’s October 24, 2017 consultation record “was uploaded into the

comp[u]ter system for review by other medical professionals.” (Id. ¶ 22.)

On October 25, 2017, the Schuylkill Medical Center drafted a pathology report indicating

that examination of the biopsy sampled “revealed results consistent with edenocarcinoma of the

prostate with a Gleason score of 6 or 7, which is medically equivalent to Stage 3 Prostate

Cancer.” (Id. ¶ 23.) The report was faxed to Defendant Pujara on November 1, 2017. (Id. ¶ 24.)

Defendant Pujara faxed a copy of the report to Defendant Steinhart that same day. (Id. ¶¶ 24,

70.) Plaintiff alleges that Defendant Steinhart failed “to document the reception and results of

the pathology report as a progress note in [Plaintiff’s] medical record or otherwise upload the

pathology report into the computer system for review by other medical professionals.” (Id. ¶ 24.)

Plaintiff alleges that Defendant Steinhart had notice that the United States Marshals

Service was scheduled to pick up Plaintiff on November 3, 2017 for transfer to a federal facility

in New York. (Id. ¶ 25.) According to Plaintiff, Defendants Rogers and Steinhart failed to

include progress notes regarding Plaintiff’s prostate condition in his medical record before he

was transferred. (Id.) Plaintiff maintains that the form used to transfer his medical information

failed to indicate that the immunohistochemical biopsy analysis was still pending and that

Plaintiff had a follow-up appointment with Defendant Pujara scheduled for November 7, 2017.

(Id. ¶ 29.) According to Plaintiff, Defendant Steinhart failed to amend the form to include that

information. (Id. ¶ 30.) Plaintiff maintains that but for this deliberate indifference, he “would

have petitioned the federal court for stay/and or discharge from voluntary extradition” because

his medical condition made a transfer “without therapeutic treatment extremely dangerous.” (Id.

¶ 31.)

Plaintiff was subsequently transferred to the Rensselaer County Jail (“RCJ”) in Troy,

New York. (Id. ¶ 32.) During intake, Plaintiff informed medical staff “about his unresolved

medical problems pertaining to significantly elevated serum PSA, and that a biopsy of the

prostate had been collected at SCI-Mahanoy, but he did not know the results.” (Id. ¶ 34.) The

doctor contacted Defendant Steinhart to obtain a copy of the pathology and biopsy reports. (Id.)

Plaintiff alleges that Defendants Steinhart and Ritsko sent “stale and incomplete information

indicating that a biopsy had been collected without stating any test results.” (Id.) The doctor at

RCJ then “took another blood test which resulted in elevated serum PSA.” (Id. ¶ 35.) Plaintiff,

however, was transferred to the Metropolitan Detention Center in Brooklyn, New York

(“MDC”), on January 1, 2018, prior to receiving follow-up care. (Id.)

Plaintiff alleges that meanwhile, Defendant Williams held a chronic care clinic, without

Defendant Rogers being present, on January 29, 2018. (Id. ¶ 36.) At that time, she discovered

that the biopsy and pathology reports had not been uploaded to Plaintiff’s medical record. (Id.)

Defendant Williams wrote to Defendant Pujara to obtain the consult results and scheduled

Plaintiff to meet with Defendant Rogers upon his return to SCI Mahanoy. (Id.) Plaintiff alleges

that Defendant Pujara failed to timely provide copies of the two (2)-page Biopsy Procedure Note

that he created on October 24, 2017, as well as a copy of the Solid Tumor Immunohistochemical

Analysis. (Id. ¶ 37.)

On February 7, 2018, while at MDC, Plaintiff underwent another blood test, which

“resulted in a serum PSA of 32.8.” (Id. ¶ 39.) Medical Director Travers scheduled Plaintiff to be

taken to the urology clinic at Brooklyn Hospital on April 26, 2018. (Id. ¶ 40.) Plaintiff alleges

that at some time between January 29, 2018 and April 26, 2018, Defendants Steinhart and

Williams “received from either [Defendant] Pujara or the Schuylkill Medical Center[] written

copies of the Procedure Note created by [Defendant] Pujara on October 24, 2017 . . . , the Solid

Tumor Immunohistochemical Analysis . . . , and a second Pathology Report.” (Id. ¶ 42.) On

April 26, 2018, Plaintiff was taken to the urology clinic at Brooklyn Hospital. (Id. ¶ 45.) He

explained that he had undergone a prostate biopsy six (6) months earlier, but that he had not been

given the results before his transfer. (Id.) MDC subsequently contacted SCI Mahanoy to request

a copy of Plaintiff’s results. (Id. ¶ 46.) On April 27, 2018, MDC received a fax containing the

requested information. (Id. ¶ 55.) Plaintiff was referred for follow-up care at the Brooklyn

Hospital on May 10, 2018. (Id. ¶ 56.) He was transferred back to SCI Mahanoy on July 16,

2018. (Id. ¶ 64.)

On August 7, 2018, Plaintiff met with Defendant Pujara and informed him that “while on

transfer . . ., he had a bone scan, CT scan, and PET scan, but did not know the results.” (Id.

¶ 67.) That same day, Defendant Rogers asked Defendant Ritsko to obtain Plaintiff’s medical

records from MDC. (Id.) On August 14, 2018, Plaintiff filed a grievance, complaining that he

had experienced a ten (10)-month delay in receiving treatment for his cancer. (Id. ¶ 68.)

Subsequently, a doctor at the Geisinger Medical Center diagnosed Plaintiff with LA Grade

Esophagitis after performing an Upper GI Endoscopy on October 19, 2018. (Id. ¶ 71.)

Based on the foregoing, Plaintiff alleges violations of his rights under the Eighth and

Fourteenth Amendments. (Id. at 21-23.) With respect to Defendant Pujara, Plaintiff alleges that

Defendant Pujara violated his Eighth Amendment rights by demonstrating deliberate indifference

to continuity of care “predicated on an unreasonable 6 to 10 month delay in providing diagnostic

and therapeutic treatment of Stage 3 Prostate Cancer.” (Id. at 22.) He also avers that Defendant

Pujara violated his Fourteenth Amendment due process right to seek a stay from voluntary

extradition. (Id. at 23.) Plaintiff seeks damages as well as declaratory and injunctive relief. (Id.

at 24.)

II. LEGAL STANDARDS

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Federal notice and pleading rules require the complaint to provide the defendant notice of

the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224,

232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a

plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled

to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure

12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.

12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the Court accepts as true all

factual allegations in the complaint and all reasonable inferences that can be drawn from them,

viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims

are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the

defendant is liable for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” See Iqbal, 556 U.S. at 679 (citing Fed. R.

Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a district court must

take when reviewing a 12(b)(6) motion: (1) identify the elements that a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint that are “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and quotation

marks omitted). The Third Circuit has specified that in ruling on a Rule 12(b)(6) motion to

dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached

to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.” See Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful that a document

filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A

pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than

formal pleadings drafted by lawyers” and may be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Section 1983 Standard

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to

vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon,

331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85

(2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the

conduct complained of was committed by persons acting under color of state law; and (2) the

conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United

States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West

v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

Defendant Pujara seeks dismissal of Plaintiff’s complaint on the bases that Plaintiff fails

to state actionable Fourteenth and Eighth Amendment claims against him. (Doc. No. 56 at 7-18.)

The Court considers Defendant Pujara’s arguments below.

A. Fourteenth Amendment Claim

As this Court noted previously, the “Due Process clause of the Fourteenth Amendment

substantively protects certain fundamental rights. Among these are the right to be free from

unjustified intrusions into the body, the related right to refuse unwanted medical treatment,

and . . . the right to sufficient information to intelligently exercise those rights.” See White v.

Napoleon, 897 F.2d 103, 111 (3d Cir. 1990) (internal citations omitted). The Third Circuit has

held that “convicted prisoners . . . retain a limited right to refuse treatment and a related right to

be informed of the proposed treatment and viable alternatives. The scope of the right to refuse

treatment, however, must be circumscribed by legitimate countervailing State interests.” See id.

at 113; see also Pabon v. Wright, 459 F.3d 241, 246 (2d Cir. 2006) (concluding that “the

Fourteenth Amendment’s recognized liberty interest in an individual’s right to refuse medical

treatment carries with it a concomitant right to such information as a reasonable patient would

deem necessary to make an informed decision regarding medical treatment”). “To establish a

violation of the constitutional right to medical information, a prisoner must satisfy an objective

reasonableness standard, must demonstrate that the defendant acted with the requisite state of

mind, and must make a showing that the lack of information impaired his right to refuse

treatment.” See Pabon, 459 F.3d at 250. “If a prisoner still would have accepted the proposed

treatment, even if he had been given all of the necessary information regarding that treatment,

then his right to refuse treatment has not been impaired, and the deprivation of medical

information is of no consequence.” Id. at 251-52.

Defendant Pujara maintains that by “amending the most significant fact pertaining to

[Defendant] Pujara, and confirming that [Defendant] Pujara forwarded Plaintiff’s biopsy report

to SCI-Mahanoy the day following receipt of same, Plaintiff has eliminated any plausible basis

to assert a Fourteenth Amendment informed consent claim.” (Doc. No. 56 at 8-9.) He asserts

that Plaintiff’s “instant claim is inapposite to a lack of informed consent claim” because Plaintiff

is, instead, asserting a delay in receiving treatment. (Id. at 10.) The Court agrees with Defendant

Pujara. At no point in Plaintiff’s amended complaint does he allege facts suggesting that a lack

of information impaired his right to refuse treatment for prostate cancer. Rather, Plaintiff

suggests that had he been timely informed of the biopsy results, he would have sought a stay of

his transfer to New York. (Doc. No. 52 at 23.) Plaintiff’s claim, therefore, is not that he would

have refused treatment, but that he was not provided with the opportunity to receive treatment in

a timelier fashion. Accordingly, Plaintiff’s Fourteenth Amendment claim fails as a matter of

law, and the Court will grant Defendant Pujara’s motion to dismiss with respect to this claim.1

B. Eighth Amendment Claim

The Eighth Amendment prohibits the infliction of cruel and unusual punishment on

prisoners. In the context of medical care, the Eighth Amendment “requires prison officials to

provide basic medical treatment to those whom it has incarcerated.” See Rouse v. Plantier, 182

F.3d 192, 197 (3d Cir. 1999). To establish an Eighth Amendment claim based on a prison’s

denial of medical care, an inmate must allege acts or omissions by prison officials that were

sufficiently harmful to evidence deliberate indifference to a serious medical need. See Spruill v.

Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,

1 As Defendant Pujara points out in his reply brief, Plaintiff’s brief in opposition fails to respond

to Defendant Pujara’s argument that Plaintiff’s claim that treatment was delayed is inapposite to

a claim for lack of informed consent. (Doc. No. 67 at 4 n.3.) Rather, Plaintiff argues that “the

date [Defendant] Pujara ‘received’ the biopsy report, and then ‘forwarded’ it to medical staff at

SCI-Mahanoy involves evidence outside the four corners of the amended complaint and exhibits

submitted in support thereof.” (Doc. No. 66 at 3.) Plaintiff avers that he does not object to

Defendant Pujara’s dismissal “[i]f the written pathology report generated from [Plaintiff’s]

urology visit on October 24, 2017 was, in fact, forwarded to SCI-Mahanoy upon receipt of

same.” (Id.) However, a motion to dismiss, unless converted to a motion for summary

judgment, “is generally confined to the four corners of the complaint when evaluating its

sufficiency. It must accept all facts alleged as true and, apart from narrow exceptions not

relevant here, cannot rely on outside evidence the parties may introduce.” See Tri3 Enters., LLC

v. Aetna, Inc., 535 F. App’x 192, 195 (3d Cir. 2013). Plaintiff himself, in his amended

complaint, alleges that Defendant Pujara sent the pathology report to Defendant Steinhart “by fax

shortly after he received it on November 1, 2017” and that Defendant Rogers received the

pathology report that same day. (Doc. No. 52 ¶ 70.) Moreover, the amended complaint alleges

that it was individuals at SCI Mahanoy, not Defendant Pujara, who failed to upload the results

from Plaintiff’s biopsy to his medical file. Furthermore, while Plaintiff faults Defendant Pujara

for not transmitting the Procedure Note and Solid Tumor Immunohistochemical Analysis Report

to Defendant Steinhart in a timely manner (id. ¶ 37), the first Pabon element “preclude[s]

liability in cases where a prisoner may not have received all conceivable information regarding a

particular treatment but a reasonable person would not find the missing information necessary to

a decision regarding whether to go forward. See Pabon, 459 F.3d at 250. For these additional

reasons, Plaintiff’s Fourteenth Amendment claim against Defendant Pujara is subject to

dismissal.

582 (3d Cir. 2003). The relevant inquiry is whether the defendant (1) was subjectively

deliberately indifferent to (2) the plaintiff’s objectively serious medical needs. See Farmer, 511

U.S. at 834, 837; Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 226 (3d Cir. 2015).

The “deliberate indifference” prong of the Eighth Amendment test requires that the

defendant actually know of and disregard “an excessive risk to inmate health or safety.” See

Farmer, 511 U.S. at 837. Circumstantial evidence can establish subjective knowledge if it shows

that the excessive risk was so obvious that the official must have known about it. See Beers-

Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842). The

Third Circuit has found deliberate indifference when a prison official: (1) knows of a prisoner’s

need for medical treatment and intentionally refuses to provide it; (2) delays necessary medical

treatment for a non-medical reason; or (3) prevents a prisoner from receiving needed or

recommended medical treatment. See Rouse, 182 F.3d at 197.

Because only egregious acts or omissions may violate this standard, mere medical

malpractice will not result in an Eighth Amendment violation. See White v. Napoleon, 897 F.2d

103, 108-10 (3d Cir. 1990); see also Pearson v. Prison Health Servs., 850 F.3d 528, 535 (3d Cir.

2017) (“[W]hen medical care is provided, we presume that the treatment of a prisoner is proper

absent evidence that it violates professional standards of care.”); Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises

professional judgment[,] his behavior will not violate a prisoner’s constitutional rights.”). If

there is a dispute over the adequacy of the received treatment, courts have consistently been

reluctant to second-guess the medical judgment of the attending physician. See Caldwell v.

Luzerne Cty. Corr. Facility Mgmt. Emp., 732 F. Supp. 2d 458, 472 (M.D. Pa. 2010) (“Courts

will not second guess whether a particular course of treatment is adequate or proper.”); Little v.

Lycoming Cty., 912 F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996).

Therefore, a mere difference of opinion between the prison’s medical staff and the inmate

regarding the diagnosis or treatment that the inmate receives does not support a claim of

deliberate indifference. See Pearson, 850 F.3d at 535; Monmouth Cty. Corr. Inst. Inmates v.

Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Moreover, a prison doctor’s use of a treatment

regimen different than that prescribed by a private physician does not necessarily amount to

deliberate indifference. See Johnson v. Cash, 557 F. App’x 102, 104 (3d Cir. 2013) (citing

McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)). The question is, therefore, “whether the

defendant has provided the plaintiff with some type of treatment, despite whether it is what

plaintiff wants.” See Jacobs v. Lisiak, Civ. No. 15-00686, 2016 WL 344431, at *4 (M.D. Pa.

Jan. 28, 2016); Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988).

Defendant Pujara maintains that Plaintiff’s amended complaint “deletes the factual

predicate that formed the basis for this Honorable Court’s holding in denying [his] previous

Motion to Dismiss.” (Doc. No. 56 at 16.) Defendant Pujara points out that Plaintiff “no longer

alleges that [Defendant] Pujara failed to transmit his biopsy pathology report to SCI-Mahanoy.

Rather, Plaintiff concedes that [Defendant] Pujara transmitted the pathology report the day

following receipt of same and assigns the fault for any delay(s) to officials at SCI-Mahanoy.”

(Id.) The Court agrees with Defendant Pujara for the reasons discussed below.

While the “failure to transfer necessary medical records in a timely fashion” can

constitute deliberate indifference, see Brown v. Coughlin, 758 F. Supp. 876, 882 (S.D.N.Y.

1991), as noted supra, Plaintiff’s amended complaint clearly alleges that Defendant Pujara

transmitted the pathology report to SCI Mahanoy shortly following receipt of same. (Doc. No.

52 ¶¶ 24, 70.) Moreover, Plaintiff alleges that Defendant Rogers had the pathology report as of

November 1, 2017. (Id. ¶ 70.) The amended complaint sets forth that it was individuals at SCI

Mahanoy, not Defendant Pujara, who failed to upload the results to Plaintiff’s medical file.

Moreover, Plaintiff avers that he was scheduled to see Defendant Pujara for a follow-up

appointment on November 7, 2017, but that he was transferred to New York prior to that date.

(Id. ¶¶ 21, 25, 29.) Moreover, while Plaintiff faults Defendant Pujara for not timely transmitting

the Procedure Note and the Solid Tumor Immunohistochemical Analysis Report to SCI Mahanoy

(id. ¶¶ 37, 42-43), a review of these documents, which Plaintiff provides as exhibits to his

amended complaint, indicates that the Procedure Note is a summary of Plaintiff’s biopsy

procedure and that the Solid Tumor Immunohistochemical Analysis Report confirmed the

diagnosis contained in the pathology report (Doc. No. 47 at 1-2, 4, 10-11.) Finally, Plaintiff

alleges that when asked to do so by staff at SCI Mahanoy, Defendant Pujara provided a duplicate

copy of the pathology report as well as the Procedure Note and the Solid Tumor

Immunohistochemical Analysis Report. (Id. ¶ 42.) Nothing in the amended complaint plausibly

suggests that the delay Plaintiff experienced in receiving treatment for his prostate cancer can be

attributed to the actions of Defendant Pujara. See Rouse, 182 F.3d at 197 (noting that deliberate

indifferences may exist when an official delays necessary medical treatment or prevents a

prisoner from receiving needed or recommended treatment). Accordingly, the Court will grant

Defendant Pujara’s motion to dismiss with respect to his Eighth Amendment claim.

IV. CONCLUSION

For the foregoing reasons, Defendant Pujara’s motion to dismiss (Doc. No. 55) will be

granted. An appropriate Order follows.