Waldo Coney v. Loren A. Grayer

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10324 AUGUST 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-21222-CV-JLK
WALDO CONEY,
Plaintiff-Appellant,
versus
LOREN GRAYER,
Warden of FCI Miami,
JUAN R. MONSERRATE, M.D.,
Medical Officer of FCI Miami,
UNITED STATES,
DEERING HOSPITAL,
Contracted Hospital of FCI Miami,
J. F. NAVIDAD,
Assistant Health Service Administrator
of FCI Miami, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 8, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Waldo Coney, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his civil rights complaint. The district court conducted a
frivolity review under 28 U.S.C. § 1915(e)(2)(B)(ii) and dismissed Coney’s
complaint for failure to state a claim. After review, we affirm.
I. BACKGROUND
Coney’s complaint alleges inter alia an Eighth Amendment claim for
inadequate medical care and is brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395-397, 91 S. Ct. 1999,
2004-05 (1971). Coney’s complaint alleges that the defendants denied him and
delayed his medical treatment for various medical conditions, including
hemorrhoids and painful and swollen testes and penis.
Coney began experiencing hemorrhoid problems in 1996. In 1997,
successful surgery was performed on Coney’s right testicle. However, in March
1999, Coney began again experiencing hemorrhoids and, in December 1999,
Coney had a second hemorrhoid surgery. After this second surgery, Coney began
experiencing pain and swelling in his testes and penis. In August 2000, an
ultrasound revealed a mass on Coney’s right testicle, which a prison doctor
2
diagnosed as benign prostate hyperplasia. Coney continued to experience pain and
swelling and, in August 2002, Coney was referred to a urologist, who
recommended surgery. In September 2002, Coney had outpatient testicular
exploratory surgery and received aftercare from prison physician’s assistants. Test
results indicated that the mass in Coney’s right testicle was not cancerous, and a
follow-up examination revealed that Coney had healed well after the surgery.
Coney attached as exhibits to his complaint prison medical records reflecting
his treatment history. Coney’s main complaint is that the medical staff delayed or
denied him the proper medical treatment. However, Coney’s exhibits reveal that
Coney repeatedly saw the medical staff for his medical complaints and that the
prison medical staff repeatedly prescribed Coney pain medication, antibiotic
therapy, sitz baths and convalescence for his complaints.
After Coney filed his complaint, the magistrate judge conducted a review
pursuant to 28 U.S.C. § 1915(e). The magistrate judge issued a report and
recommendation (“R&R”) recommending, among other things, that Coney’s
Eighth Amendment claim against the individual defendants be dismissed for failure
to state a claim pursuant to § 1915(e)(2)(B)(ii).1 Specifically, the magistrate judge
1
Coney’s complaint raised claims against the United States Bureau of Prisons, the prison
warden, Deering Hospital, and various other prison medical staff. The magistrate judge
recommended dismissing Coney’s claims against the United States and Deering Hospital
because they were not “individuals” that could be sued pursuant to Bivens. The magistrate judge
3
found that, although Coney had alleged a serious medical need, he had failed to
allege deliberate indifference to his medical need. The magistrate judge noted that
Coney had received three surgeries, as well as medications, diagnostic testing and
specialty care and that Coney had not alleged any further medical problems
following his last surgery. Therefore, the R&R concluded that Coney had not
adequately alleged “that any defendant acted with a culpable state of mind in
denying or delaying medical care, as evidenced by the abundance of care received
by the plaintiff.”
Coney filed objections to the R&R, arguing that his Eighth Amendment
claims should not be dismissed because some of the defendants were deliberately
indifferent when they delayed or denied him medical treatment, examinations and
diagnostic tests. Coney also argued that he should be allowed to amend his
complaint with regard to the deliberate indifference issue. However, Coney did not
explain how he would amend his complaint to address the flaws raised in the R&R.
The district court adopted the R&R and dismissed Coney’s complaint.
Coney filed this appeal.
also recommended dismissing Coney’s Federal Tort Claims Act, conspiracy and state law
claims. Coney does not appeal the dismissal of these claims, and we do not address them
further. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (holding that
issues not raised in the initial brief on appeal are deemed abandoned).
4
II. DISCUSSION
Coney argues that his complaint alleged sufficient facts to show that the
individual defendants were deliberately indifferent to his serious medical
problems.2 To state an Eighth Amendment claim, the plaintiff must allege both an
objectively serious medical need and the subjective intent of deliberate
indifference. Brown v. Johnson, 387 F.3d 1344, 1351 (11 th Cir. 2004). We agree
with the district court that Coney alleged an objectively serious medical need.
Thus, the focus of this appeal is on whether Coney sufficiently alleged the
subjective component of deliberate indifference. “To establish the second element,
deliberate indifference to the serious medical need, the prisoner must prove three
facts: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
and (3) by conduct that is more than mere negligence.” Id. Although deliberate
indifference can be established by showing “grossly inadequate care” or “medical
care which is so cursory as to amount to no treatment at all,” allegations of
negligence “in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment.” McElligott v.
Foley, 182 F.3d 1248, 1254-55 (11 th Cir. 1999) (quotation marks omitted).
2
We review de novo a dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim and
apply the same standards used in reviewing a dismissal under Rule 12(b)(6). Mitchell v.
Farcass, 112 F.3d 1483, 1489-90 (11th Cir. 1997).
5
Furthermore, “a simple difference in medical opinion between the prison’s medical
staff and the inmate” regarding the course of treatment does not state an Eighth
Amendment claim. Harris v. Thigpen, 941 F.2d 1495, 1505 (11 th Cir. 1991).
Here, Coney’s complaint alleged at most medical malpractice and not
deliberate indifference. Coney’s own allegations establish that he was monitored
by prison medical staff regularly, was referred to specialists, received three
surgeries and was prescribed pain medications and antibiotics. Coney’s claim rests
on his difference of opinion with the prison medical staff over the course of his
treatment, which does not rise to the level of an Eighth Amendment violation.
Coney also argues that the district court’s refusal to allow him to amend his
complaint, pursuant to Federal Rule of Civil Procedure 15(a), was an abuse of
discretion and a violation of due process.3 Pursuant to Rule 15(a), a party may
amend his pleading once as a matter of course at any time before a responsive
pleading is served. Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party, and leave shall be freely given
when justice so requires. Fed. R. Civ. P. 15(a). Prisoners are afforded “the same
benefit of Rule 15(a) as any other litigant.” Brown, 387 F.3d at 1348. The
district court, however, need not allow a prisoner to amend his complaint prior to
3
We review the district court’s decision regarding a motion to amend a complaint for an
abuse of discretion. Baez v. Banc One Leasing Corp., 348 F.3d 972, 973 (11th Cir. 2003).
6
dismissing it under § 1915(e)(2)(B)(ii) if the prisoner has failed either to attach a
copy of the proposed amendment or to give the court some indication about what
the substance of his proposed amendment would be. Bryant v. Dupree, 252 F.3d
1161, 1163 (11 th Cir. 2001).
In his objections to the R&R, Coney asked for leave to amend his complaint,
but failed to present any reasons for an amendment. In fact, Coney argued that his
complaint was sufficient as drafted. Furthermore, Coney failed to attach a
proposed amended complaint or to give to the district court an indication of the
substance of his proposed amendment. Accordingly, we cannot say the district
court abused its discretion when it dismissed Coney’s complaint without first
allowing him to amend.
AFFIRMED.
7