CUNNINGHAM v. ZUBSIC, 1:16-cv-00127

Plaintiff Donald K. Cunningham, Jr., a pro se prisoner at SCI–Forest, sued medical staff under 42 U.S.C. § 1983 alleging persistent, untreated itchy rash and pain despite repeated requests for care.
Named defendants included nurse practitioner Lisa Zubsic, physician Barry Eisenberg, nurse Jamie Ferdarko, and NP Heather McKeel; service was effected only on Ferdarko.
Plaintiff alleges he requested a skin biopsy in July 2015 per a consulting dermatologist’s recommendation but was not scheduled, which he attributes to cost-saving and deliberate indifference.
Ferdarko moved to dismiss under Fed. R. Civ. P. 12(b)(6) arguing the Complaint fails to state an Eighth Amendment deliberate-indifference claim against her.
The magistrate judge construed pro se allegations liberally, accepted factual allegations as true for Rule 12(b)(6) purposes, and evaluated whether the allegations against Ferdarko plausibly show deliberate indifference.
The court concluded Plaintiff’s allegations against Ferdarko amount to disagreement over medical judgment and allegations she accused him of refusing treatment/showering, which are insufficient to state an Eighth Amendment claim; dismissal of Ferdarko recommended.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ferdarko was deliberately indifferent to Plaintiff's serious medical needs	Ferdarko failed to provide appropriate care and refused to schedule a biopsy despite dermatologist recommendation, causing ongoing pain	Allegations against Ferdarko are limited to her accusing Plaintiff of refusing treatment and poor hygiene; insufficient to state Eighth Amendment claim	Dismissal recommended — plaintiff's allegations against Ferdarko are at most disagreement with medical judgment and do not show deliberate indifference

Erickson v. Pardus, 551 U.S. 89 (2007) (pleadings of pro se plaintiffs are to be liberally construed)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for Rule 12(b)(6))
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (court must identify conclusory allegations and accept well-pleaded factual allegations)
Helling v. McKinney, 509 U.S. 25 (1993) (Eighth Amendment protects against unnecessary and wanton infliction of pain)
Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate indifference to serious medical needs violates the Eighth Amendment)
Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999) (two-prong test: objective seriousness and subjective deliberate indifference)
Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) (mere disagreement over medical treatment does not amount to Eighth Amendment violation)
Pearson v. Prison Health Serv., 850 F.3d 526 (3d Cir. 2017) (treatment is presumed proper absent evidence it violated professional standards)
Brown v. Borough of Chambersburg, 903 F.2d 274 (3d Cir. 1990) (exercise of professional judgment by physician generally shields from constitutional liability)
Norris v. Frame, 585 F.2d 1183 (3d Cir. 1978) (where plaintiff received some care, inadequacy alone does not establish Eighth Amendment violation)