                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                       FOR THE ELEVENTH CIRCUIT
                                                U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            April 18, 2005
                              No. 04-14315               THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                   D. C. Docket No. 02-22745-CV-DLG

RAY HENRY FAISON,

                                                          Plaintiff-Appellant,

                                  versus

M. ROSADO,
G. BLACKMAN, et al.,

                                                                 Defendants,

JUAN R. MONSERRATE,
M.D.,

                                                         Defendant-Appellee.

                        ________________________

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

                              (April 18, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      Ray Henry Faison, a federal prisoner proceeding pro se, appeals the district

court’s grant of summary judgement in his 42 U.S.C. § 1983 action. On appeal,

Faison argues that Dr. Monserrate, a staff doctor at Federal Correctional

Institution in Miami (FCI), demonstrated deliberate indifference to his medical

needs. Faison asserts that Dr. Monserrate violated his Eighth Amendment rights

by failing to follow the recommendation of an orthopedist, Dr. Kim, to refer him

to a physical therapist who would have instructed him on proper weight bearing in

order to prevent his osteoporosis from progressing. Dr. Monserrate responds that

Faison did not demonstrate a serious medical need, and Dr. Kim’s comment

regarding physical therapy was just a recommendation that Faison see a physical

therapist if available.

      Viewing all evidence and factual inferences reasonably drawn from the

evidence in the light most favorable to the non-moving party, we review the

district court’s grant of summary judgment de novo. Burton v. Tampa Housing

Authority, 271 F.3d 1274, 1276-77 (11th Cir. 2001). Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

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matter of law. Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553

(1986). A party moving for summary judgment has the burden of showing that

there is no genuine issue of fact. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th

Cir. 1990).

      Once the moving party has properly supported its motion for summary

judgment, the burden shifts to the nonmoving party to come forward with specific

facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). A

party opposing a properly submitted motion for summary judgment may not rest

upon mere allegations or denials of his pleadings, but must set forth specific facts

showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986). “A mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice; there must be enough of

a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990).

      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). In Estelle, the Supreme Court reasoned that “[a]n inmate must rely on

prison authorities to treat his medical needs; if the authorities fail to do so, those

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needs will not be met.” Id. at 103, 97 S. Ct. at 290. Every claim by a prisoner that

he has not received adequate medical treatment, however, does not state a

violation of the Eighth Amendment. McElligott v. Foley, 182 F.3d 1248, 1254

(11th Cir. 1999).

      Medical treatment violates the Eighth Amendment 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). To show an objectively serious deprivation of medical care, an

inmate must demonstrate (1) an objectively serious medical need that, left

unattended, poses a substantial risk of serious harm, and (2) that the response

made by public officials to that need was poor enough to constitute an unnecessary

and wanton infliction of pain, and not merely accidental inadequacy, negligence in

diagnosis or treatment, or even medical malpractice actionable under state law.

Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (quotation and citation

omitted). In addition, to show the required subjective intent to punish, a plaintiff

must demonstrate that the public official acted with an attitude of “deliberate

indifference,” by demonstrating (1) awareness of facts from which the inference

could be drawn that a substantial risk of serious harm existed, and (2) the drawing

of this inference. Id. (quotation and citation omitted).

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      Because an inadvertent failure to provide adequate medical care does not

constitute “unnecessary and wanton infliction of pain,” a prisoner’s complaint

“that a physician has been negligent in diagnosing or treating a medical condition

does not state a valid claim of medical mistreatment under the Eighth

Amendment.” Estelle, 429 U.S. at 105-06, 97 S. Ct. at 292. “Medical malpractice

does not become a constitutional violation merely because the victim is a prisoner.

In order to state a cognizable claim, a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Id. at 106, 97 S. Ct. at 292.

      In the instant case, the district court did not err in granting summary

judgment as to Faison’s claim of deliberate indifference to his medical needs.

Faison’s medical records show that he was regularly seen by the medical staff

while at the FCI. Further, there is nothing in the record that would indicate that

Dr. Kim’s November 2000 notation that Faison should be referred to a physical

therapist, if available, was an order and not just a recommendation. Nevertheless,

Dr. Monserrate treated Faison consistently with Dr. Kim’s recommendation by

referring him to a mid-level practitioner who instructed Faison on proper ROM

exercises and weight bearing activities. Dr. Monserrate regularly referred Faison

to an orthopedic consultant, and Faison was consistently advised to start bearing

                                          5
weight on his right foot rather than using a wheelchair or crutches. Although

Faison might not agree with the method of treatment provided, matters of medical

judgment do not give rise to a § 1983 claim. Even if physical therapy was a part

of a more aggressive treatment plan, Dr. Monserrate’s failure to refer Faison to a

physical therapist may amount to negligence but not to a cognizable constitutional

claim.

         Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error.

         AFFIRMED.




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