         Case: 13-12000   Date Filed: 04/01/2014   Page: 1 of 5


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 13-12000
                      Non-Argument Calendar
                    ________________________

                 D.C. Docket No. 2:13-cv-14006-JEM



MERITAN DUMEL,

                                                         Plaintiff-Appellant,

                                versus

CAPT. B.J. ELVIN,
LT. A. COLEMAN,
WARDEN,
ASST. WARDEN COWART,
K. MURRAY,
Class. Ofc., et al.,

                                                      Defendants-Appellees.

                    ________________________

             Appeal from the United States District Court
                 for the Southern District of Florida
                   ________________________

                           (April 1, 2014)
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Before PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Meritan Dumel, a prisoner proceeding pro se, appeals the district court’s sua

sponte dismissal of his complaint, brought pursuant to 42 U.S.C. § 1983, for failure

to state a claim upon which relief may be granted. On appeal, Dumel argues that

his complaint demonstrated that prison officials violated his right to equal

protection and acted with deliberate indifference to his serious medical condition.

Although Dumel’s complaint stated other grounds for relief, he has not briefed

those claims on appeal. Thus, he has waived those claims. See Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

      We review de novo a sua sponte dismissal for failure to state a claim under

28 U.S.C. § 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true.

Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). We generally review the

denial of a motion for leave to amend a complaint for abuse of discretion. Fla.

Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1040 (11th

Cir. 2006). However, when a district court denies leave to amend because the

amendment would be futile, we review the denial de novo. Id.

      When a plaintiff proceeds in forma pauperis, the district court may dismiss

the complaint at any time if it fails to state a claim upon which relief may be

granted. 28 U.S.C. § 1915(e)(2)(B)(ii). These dismissals are governed by the


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same standards that apply to dismissals for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct.

910, 920-21, 166 L.Ed.2d 798 (2007) (discussing the standards that apply to sua

sponte dismissals, including dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii), in the

context of Rule 12(b)(6) dismissals). To survive dismissal for failure to state a

claim, “a complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation and quotations omitted).

A plaintiff must assert “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007).

“Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed.” Hughes, 350 F.3d at 1160.

      To state a claim under § 1983, a plaintiff must allege that the defendant

deprived him of a right under the U.S. Constitution or federal law and that the

deprivation occurred under color of state law. Richardson v. Johnson, 598 F.3d

734, 737 (11th Cir. 2010). A claim that prison officials displayed “deliberate

indifference to serious medical needs” arises under the Eighth Amendment.

Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A claim for deliberate

indifference has both a subjective and objective component. Id. To satisfy the


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objective component, the plaintiff must demonstrate that he has an “objectively

serious medical need . . . 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.” Id. (internal quotation omitted). The

medical need must pose “a substantial risk of serious harm” if left unattended. Id.

(internal quotation omitted). To satisfy the subjective component, the plaintiff

must establish that the official acted with “deliberate indifference” to the medical

need. Richardson, 598 F.3d at 737. Deliberate indifference has the following

three requirements: “(1) subjective knowledge of a risk of serious harm; (2)

disregard of that risk; (3) by conduct that is more than mere negligence.” Id.

(internal quotation omitted). An official may not be liable if he or she responds

reasonably to a known risk. Chandler v. Crosby, 379 F.3d 1278, 1290 (11th Cir.

2004).

      “To establish an equal protection claim, a prisoner must demonstrate that (1)

he is similarly situated with other prisoners who received more favorable

treatment[] and (2) his discriminatory treatment was based on some

constitutionally protected interest such as race.” Jones v. Ray, 279 F.3d 944,

946-47 (11th Cir. 2001) (internal quotation omitted). National origin is another

constitutionally protected interest under the Equal Protection Clause. Osborne v.

Folmar, 735 F.2d 1316, 1317 (11th Cir. 1984).


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      The district court correctly determined that the facts set forth in Dumel’s

complaint failed to state a claim under the Eighth Amendment. However, in light

Dumel’s objections to the magistrate judge’s report and recommendation, he could

have amended his complaint to state an equal protection claim. Accordingly,

because Dumel’s amendment would not have been futile, the district court should

have allowed Dumel to amend his complaint.

      Upon consideration of the entire record on appeal, and after review of the

parties’ appellate briefs, we vacate and remand so that Dumel may amend his

complaint to state an equal protection claim.

      VACATED AND REMANDED.




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