[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10711
August 23, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00543-CV-OC-GRJ
RODERICK T. SIMPSON,
Plaintiff-Appellant,
versus
CARLYLE HOLDER, Warden,
FCC Coleman - Medium,
GREGORY L. PARKS, Former Warden,
FCC Coleman - Medium,
LAWERENCE E. GREEN, Former M.D.,
FCC Coleman - Medium,
JAIME CACHO, M.L.P.,
FCC Coleman - Medium,
JOHN DOE, #1, Recreation Specialist,
FCC Coleman - Medium,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 23, 2006)
Before DUBINA, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Roderick Simpson, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his Bivens1 action for failure to exhaust administrative
remedies and failure to state a claim. He also appeals the denial of his motion for
reconsideration. We conclude that the district court properly dismissed Simpson’s
claims and denied his motion for reconsideration. Therefore, we affirm.
I. Background
Simpson filed a pro se Bivens complaint against the following FCC
Coleman (“Coleman”) staff members: Warden Carlyle Holder, former Warden
Greg Parks, Dr. Lawrence Green, Jaime Cacho, and one John Doe recreation
specialist; and the following Leesburg Regional Medical Center (“LRMC”) staff
members: Drs. Roger Sherman, J. Mandume Kerina, Ravi Gupta, and Fernandon
Serra, and two John Does (collectively “the defendants”). The complaint was
based on allegations of deliberate indifference to medical care and negligence
resulting in the amputation of Simpson’s leg because of an infection that occurred
after Simpson had surgery and a skin graft at LRMC for injuries sustained during a
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388
(1971).
2
flag football game at Coleman.2 Simpson sued the defendants in their official and
individual capacities. Simpson alleged that (1) John Doe recreational specialist
was deliberately indifferent and negligent for permitting Simpson to play flag
football without a medical exam; (2) John Doe 2 at LRMC was deliberately
indifferent to medical care and negligent by failing to check the medical chart,
which showed that Simpson was a diabetic, and snapping Simpson’s knee back
into place after the injury; (3) John Doe 3 at LRMC was deliberately indifferent
and negligent in the performance of surgery, which led to the infection that
required amputation; (4) Dr. Serra was deliberately indifferent and negligent when
he performed skin grafts before the wound healed; and (5) Holder and the medical
staff at Coleman were deliberately indifferent and negligent because they refused
to have Simpson fitted for a prosthesis. Simpson requested declaratory and
injunctive relief and $30 million in damages from each defendant.
Attached to the complaint were copies of grievances and requests for
administrative remedies, in which Simpson noted that he was injured during a flag
football game, his leg became infected after surgery for the injury, and ultimately
the leg was amputated. The grievances showed that Simpson requested that the
2
This was the second complaint that Simpson filed based on these facts. The first
complaint was dismissed without prejudice in part because Simpson failed to exhaust
administrative remedies.
3
prison officials fit him for a prosthesis per the instructions of the doctors who
amputated his leg. The prison officials’ responses noted that Simpson’s weight
precluded the use of a prosthesis but informed Simpson that the doctors would fit
him for a prosthesis if he fulfilled their request to reduce his weight from
approximately 290 pounds to 225 pounds.
The district court performed the required screening under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed the complaint
for failure to exhaust administrative remedies and failure to state a claim. First, the
court noted that the only exhausted claim was the allegation of deliberate
indifference to provide a prosthesis. Nevertheless, the court concluded that the
prosthesis contention failed to state a claim because Simpson’s weight prevented
doctors from fitting him for the prosthesis, and that this diagnosis with which
Simpson disagreed did not amount to deliberate indifference. Second, the court
concluded that the other claims were procedurally defaulted because they were not
exhausted. The court noted that, although Simpson referred to his other allegations
in his grievances, he did not seek any remedy, and the responses from the prison
officials did not address the other claims, which would now be time-barred. The
court dismissed Simpson’s complaint with prejudice.
Simpson moved for reconsideration, asserting that the complaint should not
4
be dismissed with prejudice because of his pro se status and that he should be
permitted to amend his complaint. Simpson’s motion to reconsider did not include
any new allegations to support his claims. He further asserted that the allegedly
unexhausted claims should be considered exhausted for § 1915A screening
purposes because, as the court noted, Simpson’s grievances referred to the other
claims. The court denied the motion for reconsideration. Simpson now appeals.
II. Standard of Review
We review de novo a district court’s sua sponte dismissal of a suit for failure
to state a claim for relief under § 1915A(b)(1). Leal v. Ga. Dep’t of Corr.,
254
F.3d 1276, 1279 (11th Cir. 2001). We review de novo a district court’s dismissal
of a suit for failure to exhaust administrative remedies. Alexander v. Hawk,
159
F.3d 1321, 1323 (11th Cir. 1998). We “review the denial of [a] motion for
reconsideration for an abuse of discretion.” Cliff v. Payco Gen. Am. Credits, Inc.,
363 F.3d 1113, 1121 (11th Cir. 2004).
III. Discussion
Simpson’s appeal presents three questions: (1) whether the district court
erred in dismissing his claim for deliberate indifference for the failure to provide a
prosthesis; (2) whether the district court erred in concluding that he had not
exhausted his other claims; and (3) whether the district court erred in denying his
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motion for reconsideration.
First, Simpson argues that the district court erred in dismissing his claim for
deliberate indifference for failing to provide a prosthesis because (1) the court
mistakenly viewed frivolity and failure to state a claim as synonymous and should
have applied the frivolity standard; and (2) Simpson raised an arguable claim for
deliberate indifference.
Under § 1915A, the district court must
review, before docketing, . . . or, in any event, as soon as
practicable after docketing, a complaint in a civil action
in which a prisoner seeks redress from a governmental
entity or officer . . . in order to identify cognizable claims
or dismiss the complaint, or any portion of the complaint
if it . . . fails to state a claim upon which relief may be
granted.
28 U.S.C. § 1915A(a), (b)(1); Leal, 254 F.3d at 1278-79.
The Eighth Amendment governs “the treatment a prisoner receives in prison
and the conditions under which he is confined.” Helling v. McKinley,
509 U.S. 25,
31 (1993). The Supreme Court has held that a prison official’s “deliberate
indifference to [the] serious medical needs of [a] prisoner[] constitutes the
unnecessary and wanton infliction of pain . . . proscribed by the Eighth
Amendment.” Estelle v. Gamble,
429 U.S. 97, 104 (1976) (quotation marks and
citations omitted). As we have explained, “[t]o show a prison official acted with
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deliberate indifference to serious medical needs, a plaintiff must satisfy an
objective and a subjective inquiry. First, a plaintiff must set forth evidence of an
objectively serious medical need. Second, a plaintiff must prove that the prison
official acted with an attitude of deliberate indifference to that need.” Farrow v.
West,
320 F.3d 1235, 1243 (11th Cir. 2003) (quotation marks and citations
omitted).
The facts alleged must do more than contend medical malpractice,
misdiagnosis, accidents, and poor exercise of medical judgment. Estelle,
429 U.S.
at 104-07. An allegation of negligence is insufficient to state a due process claim.
Daniels v. Williams,
474 U.S. 327, 330-33 (1986) (discussing deliberate
indifference and negligence under
42 U.S.C. § 1983).3
“When the need for treatment is obvious, medical care that is so cursory as
to amount to no treatment at all may amount to deliberate indifference.” Brown v.
Johnson,
387 F.3d 1344, 1351 (11th Cir. 2004) (quotation omitted). However, a
“simple difference in medical opinion” is not deliberate indifference. Waldrop v.
Evans,
871 F.2d 1030, 1033 (11th Cir. 1989).
Here, the district court properly concluded that Simpson failed to state a
claim for deliberate indifference. The record shows that the prison officials and
3
Law applicable to § 1983 also applies to Bivens claims. Kelly v. Serna,
87 F.3d 1235,
1239 (11th Cir. 1996).
7
doctors concluded that Simpson’s weight precluded doctors from fitting him for a
prosthesis. Simpson’s opinion that the prosthesis could be fitted despite his weight
is a mere difference of opinion with the prison officials and doctors and does not
establish deliberate indifference.
Id. Furthermore, Simpson’s argument that the
district court confused the standards for frivolity and failure to state a claim and
should have applied the frivolity standard is without merit. Under § 1915A, the
court is required to dismiss on either ground and does not err in applying the
failure to state a claim standard.
Simpson next argues that the district court erred by concluding that his other
claims were time-barred because the PLRA does not contain a procedural default
provision and because the prison has the discretion to accept an untimely
grievance. Nevertheless, he contends that he exhausted his administrative
remedies.
The PLRA requires prisoners to exhaust administrative remedies before
filing suit with respect to prison conditions, and the requirement applies to suits in
which the prisoner seeks monetary or injunctive relief. 42 U.S.C. § 1997e(a);
Alexander,
159 F.3d at 1328. The PLRA does not contain futility or inadequacy
exceptions to the exhaustion requirement. We recently held, however, that the
PLRA exhaustion requirement contains a procedural default provision. Johnson v.
8
Meadows,
418 F.3d 1152, 1158-59 (11th Cir. 2005).
Here, the court found that Simpson’s claims, except for the deliberate
indifference claim for failing to provide a prosthesis, had not been exhausted and
would now be time-barred. The district court’s ruling was proper. Although
Simpson’s grievances tangentially referred to his other claims, Simpson’s
grievances neither requested a remedy nor did the prison officials’ responses show
that they considered those complaints. Thus, this is not a situation in which the
prisoner properly raised his claims but the prison officials simply ignored them.
Therefore, Simpson was required to exhaust those claims through the
administrative procedures but he failed to do so.
Furthermore, although prison officials may permit an untimely grievance if
good cause is shown for the delay, Simpson never attempted to file an out-on-time
grievance. Harper v. Jenkin,
179 F.3d 1311, 1312 (11th Cir. 1999);
28 C.F.R.
§ 542.14 (noting that grievances should be submitted within twenty days of the
incident but allowing for a delay in filing if the prisoner shows good cause).
Because Simpson never filed a timely or untimely grievance and prison officials
have not addressed the good cause exception, the district court properly determined
that he has not exhausted his administrative remedies. Johnson,
418 F.3d at 1157-
59. Therefore, Simpson’s remaining claims were procedurally defaulted and
9
unexhausted.
Finally, we consider whether the district court abused its discretion in
denying Simpson’s motion for reconsideration. In his motion for reconsideration
and on appeal, Simpson argues that the district court should have allowed him to
amend his complaint before dismissing his complaint with prejudice. This case
differs from Brown v. Johnson, in which we held that when an in forma pauperis
plaintiff moves to amend following the magistrate judge’s report and
recommendation but before the district court has entered judgment and before the
opposing party has filed a responsive pleading, Federal Rule of Civil Procedure
15(a) mandates that the district court grant the motion to amend. Brown v.
Johnson,
387 F.3d 1344, 1348-49 (11th Cir. 2004); Fed. R. Civ. P. 15(a) (“A party
may amend the party’s pleading once as a matter of course at any time before a
responsive pleading is served.”). Here, although the defendants had not filed a
responsive pleading – in fact, they had not even received process – the district
court had already dismissed Simpson’s suit when Simpson filed a motion for
reconsideration in which he asked to amend his complaint. Therefore, Johnson
does not control, and whether to allow amendment was within the district court’s
discretion. We conclude that because Simpson failed to set forth any additional
facts that would support his claims, the district court did not abuse its discretion in
10
denying Simpson’s motion for reconsideration.
In conclusion, we AFFIRM the judgment of the district court.
AFFIRMED.
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