           Case: 15-11369   Date Filed: 08/03/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11369
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:15-cv-80102-KLR



JOEL BARCELONA,

                                              Plaintiff - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
WARDEN, SOUTH BAY CORRECTIONAL FACILITY,
CORRECTIONS HEALTH CARE (C.H.C.),

                                              Defendants - Appellees.

                       ________________________

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

                             (August 3, 2016)

Before HULL, MARCUS and DUBINA, Circuit Judges.

PER CURIAM:
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                                 I. BACKGROUND

      Appellant, Joel Barcelona (“Barcelona”) a Florida state prisoner, filed a pro

se 42 U.S.C. § 1983 complaint against state prison officials, alleging that the

officials denied him adequate medical care. More specifically, Barcelona alleged

that he had lost all hearing in his right ear; that a prison doctor conducted tests and

recommended that he be fitted for a hearing aid; and that a non-medical corrections

official had refused to authorize payment for the hearing aid because Barcelona

could still hear from his left ear. Barcelona also alleged that he had been denied

adequate medical treatment for a fungal disease, which caused him to suffer with a

swollen nail.

      The case was referred to a magistrate judge who screened Barcelona’s

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Subsequently, the magistrate

judge issued a report and recommendation (“R&R”), recommending dismissal of

Barcelona’s complaint for failure to state a claim. The magistrate judge first

concluded that Barcelona’s loss of hearing in his right ear was not a serious

medical need for purposes of a § 1983 claim because Barcelona still had hearing in

his left ear. The magistrate judge then noted that the record contradicted

Barcelona’s claim of deliberate indifference by prison personnel because he had

been attended by a prison doctor and had undergone medical tests on multiple


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occasions. Finally, the magistrate judge concluded that Barcelona’s sparse, one-

sentence allegation of a fungal disease did not state a plausible claim because it did

not establish a serious medical condition.

       Barcelona objected to the R&R regarding the district court’s disposition of

his hearing aid claim, but he did not object with regard to the district court’s

dismissal of his alleged fungal disease claim. 1 The district court overruled

Barcelona’s objections, adopted the R&R, and dismissed Barcelona’s complaint

for failure to state a claim. Barcelona then perfected this appeal.

                                         II. ISSUE

              Whether the district court erred in its sua sponte dismissal of

              Barcelona’s complaint for failure to state a claim under 28 U.S.C. §

              1915(e)(2)(B).

                             III. STANDARD OF REVIEW

       This court reviews de novo a district court’s sua sponte dismissal for failure

to state a claim under § 1915(e)(2)(B), viewing all of the allegations in the

complaint as true and liberally construing pro se pleadings. Alba v. Montford, 517

F.3d 1249, 1252 (11th Cir. 2008).

       1
         Not only did Barcelona not address the nail fungal disease in his objections to the
magistrate judge’s R&R but he also makes no argument in his initial briefs to this court
regarding the alleged nail fungus. Accordingly, we decline to consider this issue because we
deem it abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (issues not
briefed on appeal by a pro se litigant are deemed abandoned).
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                                 IV. DISCUSSION

      Deliberate indifference to an inmate’s serious medical needs violates the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291

(1976). “[A] serious medical need is considered 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). “Medical

treatment violates the [E]ighth [A]mendment only when it is so grossly

incompetent, inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th

Cir. 1991) (internal quotation marks omitted).

      Deliberate indifference has three components the plaintiff must satisfy: he

must show a prison official’s “(1) subjective knowledge of a risk of serious harm;

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

Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (internal quotation

marks omitted). “Conduct that is more than mere negligence includes: (1) grossly

inadequate care; (2) a decision to take an easier but less efficacious course of

treatment; and (3) medical care that is so cursory as to amount to no treatment at

all.” Id. A prison official “who delays necessary treatment for non-medical


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reasons may exhibit deliberate indifference.” Id. Finally, “[a]n Eighth

Amendment violation may also occur when state officials knowingly interfere with

a physician’s prescribed course of treatment. Id.

      We conclude from this record that the district court erred in dismissing

Barcelona’s complaint before the state filed a response or the parties had

conducted any discovery in this case. We have opined that “[s]ubstantial hearing

loss that can be remedied by a hearing aid can present an objectively serious

medical need.” Gilmore v. Hodges, 738 F.3d 266, 276 (11th Cir. 2013). In

Gilmore, we concluded that correctional officers could be deemed deliberately

indifferent for failing to provide hearing aid batteries to a prisoner who the officers

knew required a hearing aid to treat his hearing impediment. Id. Even so, “not all

hearing loss amounts to a serious medical condition.” Id. In particular, this court

reasoned, that where hearing loss does not prevent a plaintiff from carrying on a

conversation or hearing and following directions without a hearing aid, “a court

would be hard pressed to classify the plaintiff’s impairment as a serious medical

need.” Id. at 276-77.

      In his complaint, Barcelona alleged that he had lost hearing in his right ear

and that two doctors who examined him prescribed a hearing aid to treat his

hearing loss. Assuming the truth of these allegations, which we must, it appears


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that Barcelona has stated a non-frivolous claim and that the district court erred in

dismissing his complaint under § 1915(e)(2)(B). Alba, 517 F.3d at 1252. Though

Barcelona might not ultimately succeed on his claim because “not all hearing loss

amounts to a serious medical condition,” that is not the issue before us. The only

issue before us in this appeal is whether the district court erred in sua sponte

dismissing Barcelona’s complaint for failure to state a claim. Barcelona’s

allegations indicate that although he retains some ability to hear from his left ear, it

is not clear from the present undeveloped record that his hearing loss does not

prevent him from carrying on a conversation or hearing and following directions

from correctional officers. We deem the allegations in Barcelona’s complaint as

falling between the two sets of circumstances described in Gilmore – substantial

hearing loss that can be remedied by a hearing aid, and hearing loss that does not

prevent a prisoner from carrying on a conversation or hearing directions from

correctional officers without a hearing aid – and this court has not yet addressed

whether a prisoner’s loss of hearing in one ear, which leads a doctor to prescribe a

hearing aid, is insufficient to constitute a serious medical need where the prisoner

retains some level of hearing in his other ear.

      Regarding his claim of deliberate indifference, Barcelona alleged in his

complaint that prison officials became aware of his hearing loss after providing


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him multiple medical consultations, but failed to provide him with a hearing aid.

Again, accepting the truth of these allegations, which we must, we conclude that

Barcelona has made a non-frivolous argument that the failure to provide him a

hearing aid was “more than mere negligence” because, although the medical care

he was provided was sufficient to diagnose his hearing loss, it could plausibly be

argued that the failure to provide him a hearing aid “amount[ed] to no treatment at

all” because a hearing aid was the only prescribed treatment for his impediment.

Bingham, 654 F.3d at 1176. His assertion that a non-medical official denied him a

hearing aid for non-medical reasons does not preclude his present claim because

this court has noted that a prison official’s interference with, or delay of, prescribed

medical treatment can constitute deliberate indifference. Id. Therefore, we

conclude the district court erred by sua sponte dismissing Barcelona’s complaint

under § 1915(e)(2)(B) before a response from the state and any discovery.

      Accordingly, for the aforementioned reasons, we vacate the district court’s

order adopting the magistrate judge’s R&R and remand this case for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




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