USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12918 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cv-03673-SDG
CURTIS LEE SMITH,
Plaintiff - Appellant,
versus
WARDEN WOOD, individually and in his official capacity as warden of the United States Penitentiary Atlanta (“USP ATLANTA”), V. MORENO, individually and in his official capacity as current assistance warden at USP-ATLANTA, DAWSON, individually and in his official capacity as Correctional officer at USP-ATLANTA, HILL, individually and in his official capacity as a Correctional Officer-Food Supervisor at USP-ATLANTA, JONES, individually and in her official capacity as Correctional Officer- Trust Fund Commissary Supervisor at USP-ATLANTA, et al.,
Defendants - Appellees, USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 2 of 12
WARDEN HARMON, et al.,
Defendants.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(September 29, 2021)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Curtis Smith, a pro se prisoner currently in federal custody, appeals the district
court’s sua sponte dismissal of his Bivens action for failure to state a claim, pursuant
to 28 U.S.C. § 1915A(b)(1). See generally Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In dismissing Mr. Smith’s
complaint, the district court described him as an “overly litigious fellow” with a
“penchant for making frequent filings.” D.E. 24 at 2.
Mr. Smith attempted to sue at least 12 persons for 10 unrelated claims—
including alleged First Amendment violations, due process violations, and Eighth
Amendment violations. On appeal, he challenges only the dismissal of his Eighth
Amendment claims. We affirm, for reasons discussed below.
I
2 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 3 of 12
The defendants named in Mr. Smith’s complaint included Federal Bureau of
Prisons (“BOP”) Central Office Pharmacist Carmen Galindo; Central Office
Physician Angel Ortiz; and 10 employees of the United States Penitentiary in
Atlanta, Georgia, ranging from administrative employees to current and former
wardens and even a food supervisor. Mr. Smith’s complaint detailed several events
that allegedly occurred while he was incarcerated at USP-Atlanta. 1
As relevant here, Mr. Smith alleged that, in 2016, Ms. Galindo, the BOP
Central Office Pharmacist, and Dr. Ortiz, the BOP Central Office Physician,
discontinued his Neurontin medication without his permission and prescribed him
ineffective substitute medications before eventually placing him back on Neurontin
about two years later. He also alleged that, in 2018, a correctional officer known as
“Officer Dawson” ordered him to move to an upper middle bunk bed despite his
medical restriction sheet which stated he could not climb or use ladders. Mr. Smith
further alleged that, as a result, he fell from the bunk ladder and suffered injuries,
including a fractured bone in his right elbow.
On appeal, Mr. Smith argues that the district court erred in dismissing his
complaint for failure to state a claim. First, he argues that he was denied
constitutionally adequate medical treatment for two years when he was switched
1 Based on his filings in this Court, Mr. Smith appears to have since been transferred to FCI- Texarkana, in Texas. 3 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 4 of 12
from Neurontin to other ineffective medications. He argues that Ms. Galindo and
Dr. Ortiz also ordered their subordinates to prescribe constitutionally ineffective
medicine. Second, he argues that by ignoring his bottom-bunk pass and disregarding
his medical restriction sheet, Officer Dawson caused a wanton infliction of injuries
resulting from his placement in an upper middle bunk bed.
II
We review de novo a district court’s sua sponte dismissal of a complaint under
28 U.S.C. § 1915A(b)(1) for failure to state a claim. See Leal v. Georgia Dep’t of
Corr., 254 F.3d 1276, 1279 (11th Cir. 2001). In reviewing dismissals under
§ 1915A(b)(1), we accept the allegations in the complaint as true and apply the
standards of Fed. R. Civ. P. 12(b)(6). See id. at 1278-79. To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “[N]aked assertion[s] devoid of further factual enhancement”
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted and second alteration in original).
We liberally construe pro se filings, see Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998), but “this leniency does not give a court license
to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading
4 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 5 of 12
in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69
(11th Cir. 2014) (quotation marks omitted). As with counseled parties, “issues not
briefed on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (citation omitted).
The Prison Litigation Reform Act includes several provisions—including
§ 1915(e)(2)(B)(ii) and § 1915A(b)—that enable district courts to sua sponte
dismiss lawsuits for failure to state a claim. See Lomax v. Ortiz-Marquez, 140 S. Ct.
1721, 1725 (2020). The magistrate judge’s report and recommendation relied on §
1915(e)(2)(B)(ii), which applies to in forma pauperis proceedings. The district court
instead relied on § 1915A(b)(1) to dismiss Mr. Smith’s complaint sua sponte.
The provision at issue here, § 1915A(b)(1), requires district courts to review
civil complaints against government entities or their officers and to dismiss the
complaint if it “fails to state a claim upon which relief may be granted.” A pro se
plaintiff “must be given at least one chance to amend the complaint before the
district court dismisses the action with prejudice,” at least where a more carefully
drafted complaint might state a claim. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002) (en banc) (holding that this rule does not apply to
counseled plaintiffs who never sought leave to amend).
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USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12918 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cv-03673-SDG
CURTIS LEE SMITH,
Plaintiff - Appellant,
versus
WARDEN WOOD, individually and in his official capacity as warden of the United States Penitentiary Atlanta (“USP ATLANTA”), V. MORENO, individually and in his official capacity as current assistance warden at USP-ATLANTA, DAWSON, individually and in his official capacity as Correctional officer at USP-ATLANTA, HILL, individually and in his official capacity as a Correctional Officer-Food Supervisor at USP-ATLANTA, JONES, individually and in her official capacity as Correctional Officer- Trust Fund Commissary Supervisor at USP-ATLANTA, et al.,
Defendants - Appellees, USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 2 of 12
WARDEN HARMON, et al.,
Defendants.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(September 29, 2021)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Curtis Smith, a pro se prisoner currently in federal custody, appeals the district
court’s sua sponte dismissal of his Bivens action for failure to state a claim, pursuant
to 28 U.S.C. § 1915A(b)(1). See generally Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In dismissing Mr. Smith’s
complaint, the district court described him as an “overly litigious fellow” with a
“penchant for making frequent filings.” D.E. 24 at 2.
Mr. Smith attempted to sue at least 12 persons for 10 unrelated claims—
including alleged First Amendment violations, due process violations, and Eighth
Amendment violations. On appeal, he challenges only the dismissal of his Eighth
Amendment claims. We affirm, for reasons discussed below.
I
2 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 3 of 12
The defendants named in Mr. Smith’s complaint included Federal Bureau of
Prisons (“BOP”) Central Office Pharmacist Carmen Galindo; Central Office
Physician Angel Ortiz; and 10 employees of the United States Penitentiary in
Atlanta, Georgia, ranging from administrative employees to current and former
wardens and even a food supervisor. Mr. Smith’s complaint detailed several events
that allegedly occurred while he was incarcerated at USP-Atlanta. 1
As relevant here, Mr. Smith alleged that, in 2016, Ms. Galindo, the BOP
Central Office Pharmacist, and Dr. Ortiz, the BOP Central Office Physician,
discontinued his Neurontin medication without his permission and prescribed him
ineffective substitute medications before eventually placing him back on Neurontin
about two years later. He also alleged that, in 2018, a correctional officer known as
“Officer Dawson” ordered him to move to an upper middle bunk bed despite his
medical restriction sheet which stated he could not climb or use ladders. Mr. Smith
further alleged that, as a result, he fell from the bunk ladder and suffered injuries,
including a fractured bone in his right elbow.
On appeal, Mr. Smith argues that the district court erred in dismissing his
complaint for failure to state a claim. First, he argues that he was denied
constitutionally adequate medical treatment for two years when he was switched
1 Based on his filings in this Court, Mr. Smith appears to have since been transferred to FCI- Texarkana, in Texas. 3 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 4 of 12
from Neurontin to other ineffective medications. He argues that Ms. Galindo and
Dr. Ortiz also ordered their subordinates to prescribe constitutionally ineffective
medicine. Second, he argues that by ignoring his bottom-bunk pass and disregarding
his medical restriction sheet, Officer Dawson caused a wanton infliction of injuries
resulting from his placement in an upper middle bunk bed.
II
We review de novo a district court’s sua sponte dismissal of a complaint under
28 U.S.C. § 1915A(b)(1) for failure to state a claim. See Leal v. Georgia Dep’t of
Corr., 254 F.3d 1276, 1279 (11th Cir. 2001). In reviewing dismissals under
§ 1915A(b)(1), we accept the allegations in the complaint as true and apply the
standards of Fed. R. Civ. P. 12(b)(6). See id. at 1278-79. To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “[N]aked assertion[s] devoid of further factual enhancement”
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted and second alteration in original).
We liberally construe pro se filings, see Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998), but “this leniency does not give a court license
to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading
4 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 5 of 12
in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69
(11th Cir. 2014) (quotation marks omitted). As with counseled parties, “issues not
briefed on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (citation omitted).
The Prison Litigation Reform Act includes several provisions—including
§ 1915(e)(2)(B)(ii) and § 1915A(b)—that enable district courts to sua sponte
dismiss lawsuits for failure to state a claim. See Lomax v. Ortiz-Marquez, 140 S. Ct.
1721, 1725 (2020). The magistrate judge’s report and recommendation relied on §
1915(e)(2)(B)(ii), which applies to in forma pauperis proceedings. The district court
instead relied on § 1915A(b)(1) to dismiss Mr. Smith’s complaint sua sponte.
The provision at issue here, § 1915A(b)(1), requires district courts to review
civil complaints against government entities or their officers and to dismiss the
complaint if it “fails to state a claim upon which relief may be granted.” A pro se
plaintiff “must be given at least one chance to amend the complaint before the
district court dismisses the action with prejudice,” at least where a more carefully
drafted complaint might state a claim. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002) (en banc) (holding that this rule does not apply to
counseled plaintiffs who never sought leave to amend). But leave to amend need
5 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 6 of 12
not be granted when amendment would be futile. See Hall v. United Ins. Co. of Am.,
367 F.3d 1255, 1262-63 (11th Cir. 2004).
In Bivens, the Supreme Court held that injured plaintiffs can sue federal
officers for damages arising from violations of constitutional rights. See Bivens, 403
U.S. at 389. “Bivens actions are brought directly under the Constitution, without a
statute providing a right of action.” Hardison v. Cohen, 375 F.3d 1262, 1264 (11th
Cir. 2004).
III
Mr. Smith appeals the district court’s dismissal of only two of his Eighth
Amendment claims: (1) the replacement of his Neurontin medication for about two
years; and (2) Officer Dawson’s order that he move to an upper middle bunk despite
his medical restrictions. He has therefore abandoned all the other claims in his
complaint by failing to raise them on appeal. See Timson, 518 F.3d at 874.
With respect to the claims he challenges on appeal, Mr. Smith argues that the
prison officials violated his Eighth Amendment protections against cruel and
unusual punishments. See U.S. Const. amend. VIII.
A
“[T]he Supreme Court has held that prison officials violate the bar on cruel
and unusual punishments when they display deliberate indifference to serious
medical needs of prisoners.” Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257,
6 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 7 of 12
1265 (11th Cir. 2020) (quotation marks omitted). Generally, “when a prison inmate
has received medical care, courts hesitate to find an Eighth Amendment violation.”
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989). A difference of opinion
concerning the proper diagnosis or course of treatment is insufficient to support a
claim of deliberate indifference, even if it amounts to medical malpractice. See
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991); Waldrop, 871 F.2d at
1033. Nevertheless, an inmate’s medical treatment may constitute deliberate
indifference if it involves “grossly incompetent medical care or choice of an easier
but less efficacious course of treatment.” Waldrop, 871 F.2d at 1035.
A plaintiff seeking to show that a prison official acted with deliberate
indifference first must show that he had an objectively serious medical need—that
is, “one that has been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal
quotation marks omitted). And there must be a “substantial risk of serious harm” if
the condition is not treated. Id. (internal quotation marks omitted).
The plaintiff also must prove that the defendant acted with deliberate
indifference to the serious medical need. See id. To establish deliberate
indifference, the defendant must have had subjective knowledge of a risk of serious
harm and he must have disregarded the risk. See Townsend v. Jefferson Cty., 601
7 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 8 of 12
F.3d 1152, 1158 (11th Cir. 2010); Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir.
2016). He also must have engaged in conduct that is the equivalent of recklessly
disregarding the risk. See Farmer v. Brennan, 511 U.S. 825, 836, 839 (1994) (stating
that deliberate indifference to a substantial risk of serious harm “is the equivalent of
recklessly disregarding that risk,” and later clarifying that this subjective component
of test refers to criminal recklessness) (quoting Model Penal Code § 2.02(2)(c)). We
have conflicting cases that describe this element as exceeding gross negligence or as
exceeding mere negligence.2 Fortunately, we need not resolve the inconsistency in
our case law (nor the fact that the third prong of our deliberate indifference test is
somewhat redundant with the first) because one thing is clear: “[T]he official must
both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S.
at 837. See also Townsend, 601 F.3d at 1158 (stating the same); Melton, 841 F.3d
at 1223 (same). Mr. Smith has not satisfied that burden here, so we need not reach
2 See Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) (treating deliberate indifference as requiring a higher mens rea than gross negligence); McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (characterizing deliberate indifference test as requiring conduct “that is more than mere negligence”); Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000) (deliberate indifference requires much more than mere negligence) (emphasis added); Townsend, 601 F.3d 1152, 1158 (11th Cir. 2010) (rejecting “more than mere negligence” standard from McElligott and citing Cottrell for principle that “a claim of deliberate indifference requires proof of more than gross negligence”); Melton, 841 F.3d at 1223 n.2 (11th Cir. 2016) (stating culpability requirement as more than mere negligence, rejecting Townsend’s holding that a claim of deliberate indifference requires more than gross negligence, and noting that “the phrase ‘more than gross negligence’” is not found in either Cottrell or Farmer”). 8 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 9 of 12
the third prong, whatever it is. We agree with the district court that Mr. Smith failed
to state a claim against Ms. Galindo and Dr. Ortiz for deliberate indifference to a
serious medical need.
As for the serious-harm requirement, Mr. Smith asserts that Ms. Galindo and
Dr. Ortiz caused him a risk of serious harm when they replaced his Neurontin with
various substitute medications before placing him back on Neurontin. Mr. Smith
alleged in his complaint that the replacements for Neurontin caused him chronic pain
and suffering. He attached to his complaint an email he sent to Health Services
stating that the shooting nerve pain in his legs and feet was making it difficult for
him to walk and that the shooting nerve pain in his arms and hands was causing him
great discomfort. See D.E. 1, Exh. 4. Even if we assume without deciding that Mr.
Smith’s pain satisfied the serious-harm requirement, cf. Farrow, 320 F.3d at 1244-
45 (serious harm where, due to delay, defendant had no teeth, bleeding gums, and
could only eat soft food), this claim fails because Mr. Smith has not shown that either
defendant was subjectively aware of the alleged risk that would come from replacing
Neurontin with another medication. He therefore has not demonstrated that Ms.
Galindo and Dr. Ortiz acted with deliberate indifference to his medical needs; Ms.
Galindo and Dr. Ortiz used their judgment to determine whether a replacement
medication would better serve Mr. Smith’s needs and, when they found none, they
placed Mr. Smith back on Neurontin. See Thigpen, 941 F.2d at 1505 (“[A] simple
9 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 10 of 12
difference in medical opinion between the prison's medical staff and the inmate as
to the latter’s diagnosis or course of treatment support a claim of cruel and unusual
punishment.”). These allegations do not rise to the level of cruel and unusual
punishment, and the district court therefore did not err in dismissing the Eighth
Amendment claim.
B
Eighth Amendment challenges to conditions of confinement are likewise
subject to a two-part analysis. See Chandler v. Crosby, 379 F.3d 1278, 1289 (11th
Cir. 2004). The “objective component” requires a prisoner to prove the condition
that he complains of is “sufficiently serious” to violate the Eighth Amendment,
meaning that, at the very least, it presents an unreasonable risk of serious damage to
his or her future health or safety. Id. The risk must be “so grave that it violates
contemporary standards of decency to expose anyone unwillingly to such a risk.”
Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis omitted). The “subjective
component” of the analysis requires the prisoner to show that the defendant prison
officials acted with a culpable state of mind, judged under the “deliberate
indifference” standard. See Chandler, 379 F.3d at 1289. “Negligence does not
suffice to satisfy this standard, but a prisoner need not show that the prison official
acted with the very purpose of causing harm or with knowledge that harm [would]
result.” Id. (quotations and citations omitted, alteration in original).
10 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 11 of 12
We likewise affirm the dismissal of Mr. Smith’s claim against Officer
Dawson. We have previously held, in an unpublished opinion, that an inmate who
was transferred from a bottom bunk to a top bunk did not sufficiently plead
deliberate indifference, even though he had a medical profile requiring him to sleep
on the bottom bunk. See Burley v. Upton, 257 F. App’x 207, 208-10 (11th Cir. 2007)
(affirming grant of summary judgment against the inmate). And several of our sister
circuits have reached the same conclusion on similar facts. See, e.g., Bowman v.
Mazur, 435 F. App'x 82, 83-84 (3d Cir. 2011) (affirming grant of summary judgment
to defendants who were accused of ignoring fact that inmate was medically entitled
to a bottom bunk); Moore v. Kwan, 683 F. App'x 24, 25-27 (2d Cir. 2017) (affirming
summary judgment in favor of medical staff after concluding they did not act with
deliberate indifference in refusing to give a bottom-bunk pass to an inmate diagnosed
with a seizure disorder). Cf. Est. of Miller by Chassie v. Marberry, 847 F.3d 425,
428 (7th Cir. 2017) (affirming grant of summary judgment to prison guard and
warden who were unaware of inmate’s lower-bunk assignment and who would not
have discovered a lower-bunk directive in the SENTRY database).
We find these cases persuasive. The district court therefore did not err in
dismissing Mr. Smith’s claim against Officer Dawson. Although Officer Dawson’s
conduct may have been negligent, Mr. Smith has failed to demonstrate culpability
that meets the more stringent standard required for an Eighth Amendment claim.
11 USCA11 Case: 20-12918 Date Filed: 09/29/2021 Page: 12 of 12
IV
We affirm the district court’s dismissal of Mr. Smith’s complaint for failure
to state a claim.
AFFIRMED.