           Case: 15-13498   Date Filed: 01/22/2016   Page: 1 of 8


                                                        [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13498
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:15-cv-20333-UU



ANDREW TAYLOR HUTCHINSON,

                                                           Plaintiff-Appellant,

                                  versus


WEXFORD HEALTH SERVICES, INC., et al.,

                                                       Defendants-Appellees.

                       ________________________

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

                            (January 22, 2016)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Andrew Hutchinson, a Florida prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action for violations of the First,

Eighth, and Fourteenth Amendments to the United States Constitution. The district

court sua sponte dismissed Hutchinson’s action under 28 U.S.C. § 1915A for

failure to state a claim upon which relief may be granted.

      Hutchinson raises three primary arguments on appeal. First, the district

court should have reviewed his complaint under 28 U.S.C. § 1915(e)(2)(B) rather

than 28 U.S.C. § 1915A. Second, he properly stated a claim for relief, specifically

that he received inadequate medical care when the medical personnel at the Dade

Correctional Institution acted with deliberate indifference by losing his medical

documents, providing inadequate explanations of medications, administering

incorrect medications to him, and delaying his medication. Third, the district court

erred in dismissing his claim because the magistrate judge’s report and

recommendation and the district judge’s order contained inaccuracies. We address

each argument in turn.

                                           I.

      Hutchinson contends that the magistrate judge and the district court used the

wrong statute to screen and review his complaint. He avers the complaint should

not have been reviewed under 28 U.S.C. § 1915A because the defendants are not




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government entities; instead, the complaint should have been initially screened

under 42 U.S.C. § 1997e(c)(1) and reviewed under 28 U.S.C. § 1915(e)(2)(B)(ii).

      Pursuant to 28 U.S.C. § 1915A, district courts are required to screen civil

complaints filed by prisoners against governmental entities or employees, and

dismiss any portion of the complaint that is frivolous, fails to state a claim upon

which relief may be granted, or seeks relief from a defendant who is immune from

such relief. A similar provision appears in 28 U.S.C. § 1915(e)(2)(B), but that

provision applies to in forma pauperis complaints. And, 42 U.S.C. § 1997e(c)(1)

applies to claims brought in the district court before administrative remedies have

been exhausted.

      Here, Hutchinson is a prisoner filing suit against persons and entities who

contracted with the Florida Department of Corrections to perform a public function

of providing medical services at a state correctional facility. Hutchinson brought

his complaint under 42 U.S.C. § 1983. Given § 1983 requires defendants to act

under the color of state law, Hutchinson could not have brought the complaint

unless the named defendants were state actors. Therefore, 28 U.S.C. § 1915A is

the correct statute under which Hutchinson’s claim should be reviewed, and, under

that review, Hutchinson’s complaint failed to state a claim upon which relief could

be granted (see Part II, infra). Indeed, even if the district court erred in reviewing

the complaint under § 1915A, review under § 1915(e)(2)(B) would have the same


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result because Hutchinson proceeded in forma pauperis and failed to state a claim

upon which relief could be granted. Moreover, § 1997e(c)(1) is inapplicable

because the district court did not dismiss for failure to exhaust administrative

remedies.

                                           II.

      Hutchinson next argues that he stated a claim upon which relief could be

granted against each defendant by listing his serious medical conditions and the

deliberately indifferent actions of the defendants in his complaint. He claims he

established a pattern of deliberate indifference to his serious medical conditions

that violated his constitutional rights.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim pursuant to 28 U.S.C. § 1915A, “taking the allegations in the complaint as

true.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). The facts as pled

in a complaint must “state a claim [for] relief that is plausible on its face” to avoid

dismissal for failure to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949 (2009) (internal quotation marks omitted).

      Here, Hutchinson raises claims under 42 U.S.C. § 1983. A claimant is

entitled to redress under § 1983 if he can prove that a person acting under color of

state law committed an act that deprived him of some right, privilege, or immunity




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protected by the Constitution or laws of the United States. Hutchinson’s claims are

based on alleged violations of the First, Eighth, and Fourteenth Amendments.

      The Supreme Court has interpreted the Eighth Amendment to prohibit

“deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble,

429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976). “To prevail on a deliberate

indifference to serious medical need claim, [a plaintiff] must show: (1) a serious

medical need; (2) the defendants’ deliberate indifference to that need; and

(3) causation between that indifference and the plaintiff’s injury.” Mann v. Taser

Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).

      In his complaint, Hutchinson pled some, but not all, facts needed to establish

a violation of his Eighth Amendment rights. While Hutchinson established that he

has serious medical conditions and that the medical staff was aware of them

through his filed grievances and medical records, he has not pled facts to establish

that the medical staff disregarded any risks associated with the medical conditions.

Instead, in response to his inquiries, the medical staff told him to seek medical

treatment if any symptoms arose.

      Furthermore, Hutchinson received consistent and continuous treatment, as

shown by the lengthy grievances he filed. Rather than being deprived treatment,

Hutchinson simply disagreed with the specific medication he received. See Estelle,

429 U.S. at 107–08, 97 S. Ct. at 292–93 (holding that a disagreement over matters


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of medical judgment cannot support a deliberate indifference claim); Harris v.

Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). Hutchinson has not pled facts

sufficient to show that the alleged indifferent behavior, including lost documents,

inadequate explanations of medications, incorrect medications, and delayed

medication, caused harm to him. See Taser Int’l, Inc., 588 F.3d at 1306–07. Also,

Hutchinson has not demonstrated that the medical personnel’s conduct amounted

to anything more than negligence. See Townsend v. Jefferson Cty., 601 F.3d 1152,

1158 (11th Cir. 2010) (noting that deliberate indifference claims require more than

negligence). Thus, Hutchinson has not stated a claim for which relief can be

granted under the Eighth Amendment. 1

                                                III.

       Hutchinson argues that the report and recommendation adopted by the

district court is inaccurate because it refers to the South Florida Reception Center

and a motion for a protective order. The district court adopted these findings and,

additionally, put the wrong name on the order. Furthermore, the district court

inaccurately referenced the statute under which the magistrate judge recommended

that the complaint be dismissed: the district court stated that the magistrate judge

       1
          Additionally, Hutchinson has not stated a claim under the First or Fourteenth
Amendments. While Hutchinson stated broadly that his First and Fourteenth Amendment rights
were violated, he pled no facts that would give rise to a claim under those amendments. Viewing
the facts liberally, Hutchinson has not “raise[d] a right to relief above the speculative level.” See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Therefore, the
district court did not err in dismissing Hutchinson’s complaint for failure to state a claim upon
which relief could be granted.
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recommended “that the Complaint be dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii)” and dismissed the complaint “for reasons stated in Magistrate

Judge White’s Report.” However, the magistrate judge dismissed the complaint

pursuant to 28 U.S.C. § 1915A.

      Rule 61 of the Federal Rules of Civil Procedure provides:

                   Unless justice requires otherwise, no error in
             admitting or excluding evidence—or any other error by
             the court or a party—is ground . . . for vacating,
             modifying, or otherwise disturbing a judgment or order.
             At every stage of the proceeding, the court must
             disregard all errors and defects that do not affect any
             party’s substantial rights.

Fed. R. Civ. P. 61. The errors Hutchinson raises do not affect his substantial rights

because they would not alter the outcome of the district court’s decision. See id.

Under 28 U.S.C. § 1915A and § 1915(e)(2)(B), the district court is required to

dismiss a complaint for failure to state a claim if the claimant is a prisoner or

proceeding in forma pauperis, respectively. Thus, both statutes apply to

Hutchinson because he is a prisoner and he proceeded in forma pauperis, and both

statutes can properly be used to dismiss his complaint for failure to state a claim.

As discussed above, the district court properly assessed the facts required to

establish a claim upon which relief could be granted and correctly concluded that

Hutchinson did not raise a right to relief.




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                                          IV.

       Upon reviewing the record and considering Hutchinson’s arguments on

appeal, we find no reversible error. Therefore, we affirm the judgment of the

district court.

       AFFIRMED.




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